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SOCIO-LEGAL IMPACT OF THE INDIAN CIVIL RIGHTS ACT:
DEVELOPMENTAL AND DISJUNCTIVE INCORPORATION OF INDIGENOUS PEOPLES
UNDER COLOR OF LAW

By
Harry Edward Mika II

A DISSERTATION
Submitted to
Michigan State University
in partiaI fquiIIment of the requirements
for the degree of

DOCTOR OF PHILOSOPHY

Department of SocioIogy

I981

‘> I,

Copyright by
HARRY EDWARD MIKA II
1981

ABSTRACT
SOCIO-LEGAL IMPACT OF THE INDIAN CIVIL RIGHTS ACT:

DEVELOPMENTAL AND DISJUNCTIVE INCORPORATION OF INDIGENOUS PEOPLES
UNDER COLOR OF LAW

By
Harry Edward Mika II

Against a backdrop of the historical incorporation of indigenous
peoples into Western development, including the socio—historical contours
of international law and federal Indian law and policy, an analysis of
the 1968 Indian Civil Rights Act (ICRA) is presented. Through analysis
of historical materials and federal ICRA court cases for the period 1968-
. 1978, the socio-legal impact of the Act is proposed.

’ The case analysis addresses several themes of socio-legal
interdependence which bear upon the historical and contemporary relations

between indigenous peoples, and tribal and extra-tribal social matrices:

1) The accelerated development of European ethnic colonial peoples,
and the concomitant underdevelopment of indigenous peoples in the
territorial United States is aptly chronicled in the elaboration of the
legal system;

2) The historical incorporation of indigenous peoples into U.S.
development has subverted a broad spectrum of interests, values and
behaviors adjudged inconsistent with national development strategies;

3) The elaboration and impact of imposed federal Indian law and
policy is the delegitimation of forms of indigenous authority and
control (sovereignty and jurisdiction) which threaten to encumber the
preferred status quo or trajectory of societal development;

J 4) The proliferation of externally sanctioned law and legal
institutions undermines tribal self-governance by imposing exogenous

Harry Mika
prescriptions of social order that create prevalent disorder in
tribal life and maintain the marginal socio- legal status of indigenous
peoples in national development;

5) The inequality of indigenous peoples in U.S. society is a
manifestation of a system of law, where the interests of indigenous
peoples in aspects of their own survival (physical, cultural, etc.)
extend beyond the parameters of sanctioned conduct and goals; and

6) The ICRA, pursuing a general theme of federal incursion into
the affairs of tribal self-governance, stipulates the diminuations

in the exercise of tribal sovereignty and jurisdiction, and regulates
a wide arc of tribal and extra-tribal relations.

The emancipatory and repressive impacts of the ICRA are causally
linked: within a logic of societal development and underdevelopment,
the Act protects some interests at the expense of other interests,
and sanctions and regulates the opportunity structure within which

human interdependence takes its course.

ACKNOWLEDGMENTS

The many institutional and personal contributions to a regimen
of study and research should temper one's sense of individual
accomplishment at the culmination of a graduate program. I gratefully
acknowledge the support of my silent collaborators.

The voluminous case file materials were made available to me
in East Lansing through the efforts and generosity of Mary Mousseau
and the staff of the National Indian Law Library of the Native
American Rights Fund (Boulder, Colorado). The cooperation of this
first-rate depository facility was instrumental to the research.
Annie Pitts of the Michigan State University Library was most helpful
in coordinating and facilitating the numerous exchanges of file data.
The MSU Documents Library, under the direction of Eleanor Boyles,
sorted through the many documentary and archival problems I posed,
and without exception found appropriate strategies and solutions.

Gil Hall of the American Indian Lawyer Training Program made numerous
suggestions in the early stages of research which have added clarity
and scope to several portions of the thesis.

I have benefited immeasurably from faculty at Michigan State
University who have engaged me as a colleague. Chris Vanderpool,
my committee chairperson, has prodded and shaped my interests
through each of my three degree programs at MSU. His professional

and personal guidance has been very valuable, and his friendship

iii

iv
is cherished. John Useem and Ruth Useem have remained keenly
interested and involved at every stage of my professional
development: their standards, seemingly unattainable at times,
have been couched in their warmth, generosity, and dedication to
their students. A. Allan Schmid has consistently posed the most
difficult questions and has patiently assisted in my ongoing
re-orientation to public policy and institutional performance
evaluation: his participation in this research effort from a
continent away is appreciated. Other colleagues, among them
Jim McKee, Beth Shapiro, Jim Thomas, Richard Thomas, Clark White,
Mike Price, Peter Grimes, and Seyed Ala Tolouie, have given unselfishly
of their time and energy as critics and friends.

The support of my parents, their encouragement and dedication,
has been without limits and can never be adequately described or
repaid. Judy, a fountain of strength and good humor, has made many
contributions and sacrifices, including those intangibles of heart
and spirit from which I draw sustenance. Kirsten and Josh have
been as understanding as two-year-olds can be. They have little
use for a book without pictures, and their critical appraisal of the
initial research proposal, which they tore into little pieces, was
sobering.

In spite of these many and outstanding contributions, the

limitations of the final product are my responsibility alone.

TABLE OF CONTENTS

Introduction .......................................................... l

Chapter One Thematic Prospectus: The Range and Method of Inquiry...4

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Research Themes .................................................. 4
l) The Projection of Interests in the Legal System ......... 5

2) The Salience of Interests in the Legal System ........... 6

3) The Relation of Interests and Legitimate Authority ...... 7

4) The Relation of Law to Social Order ..................... 7

5) The Relation of Law to Racial and Ethnic Inequality ..... 8

6) The Relation of Civil Rights to Regulation .............. 8
Methodology ...................................................... 9
Socio-Legal Impact ......................................... l0

Case Analysis .............................................. l2

A Note on Date ............................................. l4
Ngtes ........................................................... l7
Chapter Two The Concomitants of Imposed Law ........................ l8
Macroscopic Perspectives on Law and Society ..................... l8
Marx and Engels on Law ..................................... 20
Weber on Law ............................................... 26

An Institutional Approach ....................................... 37
Interdependence ............................................ 38
Imposed Law ..................................................... 42
N933; ........................................................... 46

V

vi

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Chapter Three The Social History of Indigenous Peoples ........... 48

The Sociology of Race: Theories of Amalgamation .............. 48

The Civilization Process ...................................... 57

Npteg ......................................................... 65
Chapter Four Delimited Perspectives and Prospects: Research on

Indigenous Populations .............................. 67

The National Pattern .......................................... 67

The International Pattern ..................................... 72

Organization of American States .......................... 72

International Labour Organisation ........................ 75

United Nations ........................................... 79

Ngteg ......................................................... 87

Chapter Five The Socio—Historical Contours of Law ................ 92

International Law ............................................. 92

Federal Indian Law ........................................... lOl

The Indian Civil Rights Act ............................. ll6

Npteg ........................................................ l27

Chapter Six Adjudication of Civil Rights ........................ 133

Human and Civil Rights ....................................... l34

Civil Rights Litigation ................................. l38

ICRA Litigation .............................................. l42

Litigant Interests ...................................... l43

Boundaries and Agenda ................................... 155

Perceptions of Legitimate Authority, ..................... I65

Interests-at Risk ....................................... l83

I. Qggge v. Ngkai_ .................................. l89

2. Peoples Committees of Taos Pueblo v.
Tribal Council of Taos Pueblo ................... I94

vii

 

 

 

 

 

 

 

 

 

3. Santa Clara v. Martinez ......................... l99
Npte§_ ........................................................ 204
Chapter Seven Summary and Conclusions...., ..... .. ..... .... ...... 209
Socio-Legal Impact: Supplementary Strategies ................. 213
m, ................... ..... I ............................. 220
Appendix I ........................................................ 221
A. Convention 107 ........................................... 221
8. Recommendation 104 ....................................... 231
C. Final Resolution ......................................... 238

D. Declaration of Principles for the Defense of the

Indigenous Nations and PeOples of the Western

Hemisphere ............................................... 242
E. Declaration of the Indigenous Peoples .................... 245
Appendix II Indian Civil Rights Act Cases, 1968-1978 ............ 250

References ........................................................ 257

LIST OF FIGURES

Figure Page
I Weber's Jurisprudence of Concepts ...... 29
2 Sociocultural Evolution ................ 61
3 Violations of International Law ....... lOl

viii

INTRODUCTION

The following analysis is first and foremost an inquiry in
contemporary institutional performance of both Native American tribes
and federal government through their respective instrumentalities.

An episode of federal Indian law, the 1968 Indian Civil Rights Act,
becomes the focus of attention and its socio-legal impact in the
tribal setting is proposed.

The selection of civil rights as a subject of investigation is
not fortuitous. In general, civil rights legislation is felt to be
exempt from evaluation. This line of reasoning is predicated upon an
assumption that civil rights evolve and are made explicit as a society
is enlightened to the sanctity of its individual members, and that
any standard evaluative criteria pale with respect to the assumed
immutable character of these rights. Such a hands-off posture has
unfortunate ramifications, not the least of which is the relative
absence of attempts to scrutinize the impact of civil rights
legislation. The present study, no matter how tentatively its
proceeds, is not encumbered by the supposed sanctity of civil rights.
Simply put, civil rights are mechanisms of sanctioned regulation.
That they have come to be reified and held beyond reproach is the
more reason to anchor their development to historical, concrete
manipulation. Within the arena of federal Indian law, itself a

complicated web of rights and relations spun from the clash of

1

European ethnic groups and indigenous populations, the imposition
of federal civil rights legislation highlights their blatant
regulatory function.

Drawing principally from federal court cases which developed
during the initial decade of adjudication of the 1968 Indian Civil
Rights Act, the examination of institutional performance is designed
to indicate, in part, the dimensions and terms of contemporary legal
integration of indigenous peoples in the United States. The analysis
is situated with ever-larger concentric spheres of interest and
application:

I) the nature of tribal sovereignty and jurisdiction in
contemporary U. S. society;

2) the socio-legal incorporation of indigenous groups into
modern dominant societies as well as their status in
international law;

3) the relationship between "traditional" and "modern”
systems of social order and control; and

4) the place of law -- its development and function --
within contemporary social structural and cultural
formations.

The present study proposes to illuminate a portion of a larger
phenomenon, specifically, the dynamic structuring and restructuring
of interests and their attendant ideologies and manifestations in
the development and nurturing of systems of domination and control.
These issues are subsumed within a macroscopic tradition in the
sociology of law which speaks to the relationship of law and society.

From the onset, two perplexing limitations of the research

should be noted in order to temper the unintentioned rigidity or

certainty of the analysis. Both are recurrent themes in the text.

First, the use of "tribe" as a generic label for Indian communities

is impotent, capturing neither the objective nor subjective diversity
of Indian peoples. The designation, nonetheless, is in wide usage
to suggest the distinctiveness of "tribe“ from an equally ambiguous
entity, the American "mainstream." Despite the lack of empirical
bases and the effort here to establish them, it is proposed that if
indicators or characteristics of social, economic and political
institutions are considered alone, there is more variability between
Indian tribes in the territorial United States than exists between
the modal tribal structure and the modal structure of the dominant
society. A task of this study is to substantiate the significance
of the variability among Indian tribes when federal law is universally
imposed.

A second caveat concerns the mode of inquiry. Whether case
files of federal litigation, a primary source of data for a portion
of the analysis, are even approximate representations of the substance
of negotiating conflict, is a completely open question. This issue
will be evident in the text, but until other avenues of inquiry are
explored -- such as ethnographic strategies for assessing institutional
performance —- a judgment of the fitness of methodological technique
is premature. The present analysis is preliminary, and cannot draw
from the security of conventional perspectives. The thesis purports
to assess socio-legal impact, drawing from representations made in
case files as to the nature of conflicting claims to justice, ppt_

does not turn on points of law (as is the conventional wisdom), but

 

rather seeks to uncover the so-called tangential issues to give

substance to fluid human interdependence and institutional animation.

CHAPTER ONE
THEMATIC PROSPECTUS: THE RANGE AND METHOD OF INQUIRY

A powerful rationale for passage of the l968 Indian Civil Rights
Act was the supposed absence of a full range of civil and human
rights to individual Native Americans in tribal settings. It was
alleged that these rights, the birthrights of U. S. citizens, had been
selectively denied by tribal governments to tribal individuals. As
the Indian Civil Rights Act is assessed, however, the stated purposes
become largely subverted: despite a prescription to order conflicting
claims to justice, disparate conceptualizations of "social good" and
"social harmony" emerge as the fundamental bases of conflict. Further,
as the tg§m§_of socio-legal integration become more explicit in
litigation in federal courts, the Act assumes a regulatory character

which is consistent with the body of federal Indian law.

Research Themes

 

An analysis of short and long term impacts of the Indian Civil
Rights Act is attempted here to ferret out the dynamics of this
legal development and its implications in the face of changing
intranational racial and ethnic relations, the intersection of
systems of social control, and evolving conceptions of sovereignty,

jurisdiction, and civil and human rights. An understanding of the

broad function of law in society entails a rigorous inquiry into the
substance, generation, and exposition of a constellation of
complementary, competing, and conflicting interests within an arena
of human interdependence. The present study, confined to a much
more limited scale, attempts to underscore the impact of these same
substantive components of interests on intersecting systems of order
and control which typify both the historical and contemporary
relationship between indigenous Native American tribes and the dominant
society. In order to situate the analysis of the Indian Civil Rights
Act within such larger domain concerns, six research themes are
pursued:

l) the projection of interests in the legal system;

2) the salience of interests in the legal system;

3) the relation of interests and legitimate authority;

4) the relation of law to social order;

5) the relation of law to racial and ethnic inequality; and

6) the relation of civil rights to regulation.
These themes structure the agenda of inquiry. Each is considered

in turn below within a generalized statement of research findings.

1) The Projection of Interests in the Legal System

A legal system, involving the complex of law making, law finding,
sanction, and legitimation is not a neutral entity beyond the
construction, control, and comprehension of social actors. It is
precisely a product of human interaction, and embodies relations

between socially-defined human aggregates on the basis of the

historical development of material conditions. Interests, the implicit
or explicit specifications of preference which are articulated in

the anticipated or executed avenues of social action,l/ are diverse

and variably salient within any particular legal system. The so-called
structural inadequacies of a legal system are more correctly the
projection of interests in a functioning legal system, a system
adequate for some interests and less adequate for other interests.

The motives of those who make or administer laws are but a single

element of the range of interests which congeal at any one moment to

constitute status quo.

2. The Salience of Interests in the Legal System

Within a framework of relative stability and continuity, a legal
system rests upon a subset of possible orderings of human conduct,
and actively attempts to preclude the ascension of competing or
incompatible prescriptions of social order. The naked adage "order
gg_disorder" obscures a fundamental feature of the rule of law,
namely, that some interests are dominant and other interests are less
dominant. Further, to suggest that the status quo must prevail because
inherent disorder is the only alternative is to ignore a particularly
dynamic requisite of the rule of law: a subset of interests in a legal
system are buoyed at the expense and exclusion of other interests.
Baldly stated, the range of human conduct in pursuit of some interests
is sanctioned and prescribed, while other types of human conduct

in pursuit of other interests are proscribed.

3. The Relation of Interests and Legitimate Authority

Definitions of legitimate and illegitimate forms of political
authority are grounded in the concrete interests of particular social
groups. The legitimacy of authority involves processes of legitimation
whereby mechanisms for ensuring compliant behavior, for restricting
the universe of possible human action (and its very definition)
in order to prescribe human conduct and alternatives, and the like,
are institutionalized to present a reasonable, natural, and functioning
social environ. Other forms and manifestations of authority, in as
much as their existence threatens the status quo, are deemed
illegitimate. The distribution of power between competing authorities,

as between competing interests, is determinant.

4. The Relation of Law to Social Order

A penchant of the rule of law is the production of law in its
broadest sense, including rules, regulations, rights, the
administration of coercion and the particulate aspects of a legal
system, including law makers and law finders (e.g., lawyers). Another
penchant of the rule of law is the assumptive assertion that mprg_law
creates petteg_order in society. However, the proliferation of laws
and legal institutions is neither the necessary nor sufficient test
that order prevails. On the contrary, the rule of law is symptomatic
of prevalent disorder. Intensification of law making and law finding
generally consolidates narrow interests, mitigates against or
frustrates the salience of competing interests, creates or

exacerbates cleavages, and the like.

8

5. The Relation of Law to Racial and Ethnic Inequality

 

The presence of racial and ethnic inequality in a society which
functions through a complex legal framework should not be dismissed
as merely an aberrant social form, but rather understood as a
manifestation of that system of law. The specific terms of
incorporation into the mainstream of social, economic, political and
cultural life are fashioned from prevalent definitions of social
good, social harmony, and the prescribed and proscribed behaviors
consistent with functioning status quo. Racial and ethnic minority
peoples,* who define their interests beyond the parameters of
sanctioned conduct and goals, are at once removed from the arena
of effective determination and execution of their interests.
HistoricaIly, the incorporation of racial and ethnic minorities in all
aspects of the development of those other groups whose interests have
been in relative ascendancy has been assured and facilitated in the

legal system. The ensuing inequality is endemic to such a system.
6. The Relation of Civil Rights to Regulation

The legislation of civil rights is delimited by the social system
that generates discontent, struggle, and the eventual application
of marginal change appropriate to dominant notions of social order
and control: explicit and formalized statements of "rights" may

actually curb previously enjoyed, though unformalized rights. Civil

 

*who themselves represent a wide arc of interests, both compatible
and conflicting

9

rights are not epiphenomenal to the regulation of human
interdependence. In the larger view, civil rights are arbitrary to
the extent they legislate the preferred boundaries of sanctioned

human conduct.
Methodology

The task of the analysis is to critically dissect the
configuration of interests related to the federal imposition of civil
rights over tribal structures. The social fpgm_of these interests
easily obscures social processes which make some interests more
salient than other interests, despite nominal conferment of "rights"
by interests in ascendency to competing interests in relative decline.
To achieve an integrated statement of impact, the analysis is carefully
woven through the research themes presented above.

It is suggested in Chapter Two that efforts of social science to
investigate the broad relationship of law and society are traditional
concerns. With respect to such a tradition, research on law by

scholars in the United States has been somewhat retarded:

. .recent scholarship [of issues in law and
social science] often seems stagnant, further
documentation (or falsification) or a well-
established (or generally discredited) hypothesis,
one more entry in a sterile, and ultimately
unresolved theoretical debate -- a by product
of the demands of tenure-review committees
rather than the expression of any real
intellectual engagement. . .

. . .we are both blessed and cursed with

a proliferation of empirical research, the
value of which is seriously impaired, if not
lost altogether, because too little effort is
expended on synthesis. . . (Abel, I980)

TO

The lack of synthetic consonance of this body of scholarship should

not deter us here, however. A most basic endeavor of social scientists
is to relate social phenomena within situational and institutional
contexts uncovered through strategic methodologies molded from a
selection of epistemological assumptions. The present study, a
socio-legal impact analysis, is part and parcel of this tradition of

inquiry.
Socio-Legal Impact

Impact assessments are as diverse as the range of human values
which endorse a subset of outcomes as positive and others as
negative. The rules for conducting impact analysis cannot avoid the
tincture of preference, and the analysis here is no exception. From
the onset it should be noted that "socio—legal impact" is a misnomer
if it is construed as balanced assessment of the legpl_ramifications
of the Indian Civil Rights Act and the §p§ipl_outcomes of enactment
and adjudication. While divisions as artificial as "social" and
"legal" are counterproductive from the macroscopic position advocated
in Chapter Two, there remain relatively distinct methodological
strategies which are better suited to various subsystems of social
life. In this respect, the analysis is decidely skewed to a "legal"
framework and its attendant epistemological and methodological
character. A gpgigl_impact assessment (in the narrow construction
of the tenm) would entail more diverse and creative mechanisms of
analysis in addition to, for example, a review of case law. None of

the above is to suggest, however, that "legal impact” is either an

ll
obvious or cogent concept. Often construed within economic approaches
to law, legal impact analysis is generally not a social science of
legislation. In very general terms, the economic approach to law
proposes models (fashioned around a market paradigm) designed for
predictive capacities, based upon quantifiable data and empirical
analysis. The socio-legal impact analysis of the Indian Civil Rights
Act is largely descriptive, and utilizes a broadly institutionalist
perspective derivative of early analytical jurisprudence (Terry, 1884;
Hohfeld, 1913, 1917), and the institutional economics of John Commons
(I924, l934), and more recent formulations such as Schmid (l972, l978)
and Samuels and Schmid (l98l). The perspective is decidely historical
and does not labor within a restricted sphere of facts (such as only
those which are monetary, or immediately amenable to quantification,
or direct). While the institutional approach shall receive further
elaboration in Chapter Two, its intent is characterized as follows:
an effort to understand specific legal/institutional phenomena through
transactional, micro-level analysis of the component aspects -- their
genesis and evolution -- of institutional development. As noted
above, an institutional approach, and apy_framework, projects both
purpose and rationale. Nonet (l966), with specific reference to a

complimentary perspective, jurisprudential sociology, indicates an

optimal trajectory against which the present study shall be measured

(see Chapter Seven):

. .a social science of law that speaks to the
problems, and is informed by the ideas of
jurisprudence. . .a sociology that recognizes
that continuities of analytical, descriptive and
evaluative theory. . . which should contribute
to formulating principles of institutional
design, and guides for the diagnosis of
institutional troubles.

12

Case Analysis

The core of data for the socio-legal impact analysis is legal
doctrine, formulated and given expression in judicial opinions. It
is assumed that the legal system (as a conduit to either resolve and
accommodate conflict, or to engender and exacerbate conflict), through
litigated controversy (case law), can reveal the ordering of human
interdependencies, and further, the emergent configuration of interests
and impacts. The institutional performance of the Indian Civil Rights
Act will be guaged through case analysis of federal court case files
for the period 1968-1978.

The notion of "case analysis" requires clarification. All of
social science can be said to be comparative case analysis, in that
our knowledge of any facet of the social system is derivate of what
we portend to know of other facets of the system or structure. While
it is unlikely or unmanageable that all manifestations of a phenomenon
can be exhaustively studied, we attempt to extrapolate from one
observation to another, and build a knowledge base accordingly. Hence,
a set of circumstances that constitute a problem focus, in as much
as they are felt to correspond or represent like elements in a comparable
situation (within an acceptable degree of variance) are said to be a
gpse,g! The concept of "case“ within legal study is much more narrow,
referring to the aggregation of facts upon which the court exercises
jurisdiction and arbitrates disputes. The "case" may describe the
collection of facts (case file), or the strategic presentation of
facts according to the corpus of jurisprudence (case law). The social
scientific and legal usages of case may be combined, such as they are

when the present study is characterized as a "case within a case:"

I3

l) it is a case study of socio-legal integration of indigenous
peoples (the case refers to Native American tribes as a
subset of indigenous peoples);

2) it is a case study of federal Indian Law (the case refers
to the Indian Civil Rights Act as only one episode of
federal Indian law from among many others that could
demonstrate the terms of socio-legal integration); and

i/

3) it utilizes a case system (a case system refers to a
method of studying the law through analysis of the body
of jurisprudence, or judicial precedents based upon
litigated controversy, or court cases).

Within social science, a tradition of seminal research so construed
is emerging, including Llewellyn and Hoebels' (l94l) exposition of
the legal culture of the Great Plains Cheyenne, Hoebel's (l954)
comparative analysis of primitive law in five societies, Gluckman‘s
(I955, I965) analysis of judicial process and jurisprudence among
the Borotse of Northern Rhodesia, and Bohannan's (I957) treatise on
adjudication in Tivland in Northern Nigeria. Recent work of this
genre is appearing more frequently in specialized journals such as

Law and Society Review, British Journal of Law and Society, International

 

Journal for the Sociology of Law, Journal of Legal Pluralism, and the
like.

With respect to its legal usage, the case system or case approach
has recognized merit in the breadth of subject matter that cases
yield. In addition, the manageable and consistent format of case
files are positive inducements to their use. The limitations of case
analysis are less often proposed. Any "statement of facts" must be
interpreted to mean facts that adhere to a set of legal questions that
"make the case." Regardless of whether principle litigants stipuate
to "facts," a goodly portion of the social terrain can be obscured

in narrowly constructed statements of fact situations assembled around

l4

procedural, jurisdictional, etc. issues. Cases as "facts" are products
of specific interests, not the least of which are those of lawyers
and judges (cf. Medcalf, l978). In other words, a shortcoming of
analysis that depends largely on legal case files is that too much
time is spent in courtrooms (figuratively), and too little time with
litigants. These environs, it is suggested, are separate and their
interface is contrived. A further constriction in the sphere of
applicability of case files is that they are not representative of
the majority of Native peoples in the United States who are denied
federal recognition (i.e., they are not enrolled members of federally
recognized tribes). The Indian Civil Rights Act applies only to
federally recognized tribes, or to those contested matters involving
the alleged jurisdiction of such tribes. The case analysis proceeds,

encumbered by these and other limitations.

A Note on Data

In addition to the relatively micro case analysis (a component
of a transactional, institutional approach -- see Chapter Six) a
macro socio-historical context is proposed through historical documentary
analysis in several areas. Action and research on behalf of indigenous
populations by selected U.S. government agencies, and sponsored
activities of the Organization of American States, the International
Labour Organisation, and the United Nations is reviewed. An overview
of tribal sovereignty and jurisdiction, including precedents in
international law and the historical development of federal incursion
into tribal affairs, is presented. Finally, the legislative history

and enactment of the Indian Civil Rights Act is charted.

15

The study draws from several different types of data whose quality
is uneven. The case data is unusual, in the sense that most case file;
(consisting of briefs, memoranda, motions, judgments, opinions, and
the like) have been assembled in a central location at the National
Indian Law Library of the Native American Rights Fund in Boulder,
Colorado. Review of ICC federal court case files, some 700 items and
7300 pages representing litigation from eighteen states and involving
forty-five tribes over a ten year period, would be unmanageable
except for the existing depository. Some case files are not as complete
as others, either because proceedings are continuing, or because items
(briefS.etc.) are not included in the case file. While there exists
the possibility of overlooking shielded or minor legal points of
significance to the study because of incomplete case files, in most
instances missing materials can be reconstructed from existing items
of the file.

Two general limitations of the case files are obvious. First,
there is only minimal transcript material of court proceedings.

What transcripts were available are attached to file items as appendices.
These bits and pieces provide very little insight to court proceedings.
Second, it may well be that most disputes involving the Indian Civil '
Rights Act are settled in tribal courts. Federal court cases are used
in this study, as there does not exist a depository for tribal court
case files. As a sanctioned ordering of rights, a reasonable hypothesis
is that the Indian Civil Rights Act has impact in tribal courts where
litigants measure their odds -- and contest within these parameters --
against their perceptions of the Act's sanction in the federal courts.

Beyond the courts entirely, the Act may have an impact on human

l6
conduct where persons -- not litigants -- solve or avoid conflicts
on the basis of these same perceptions. It would be difficult to
maintain that it is only the sanction of the Indian Civil Rights
Act (manifest in judicial decisions) which induces compliant conduct.
The license given to federal courts, regardless of the accuracy of the
perceived "license" (i.e., federal courts awarded themselves the
license -- see Chapter Five), to intervene in tribal affairs may
also regulate conduct. Such issues speak to the complexity of legal
assessment generally, and specific limitations of utilizing federal
court case files exclusively.

Documents produced by the sponsored activities of major
international organs vary considerably. Materials of the Organization
of American States and the International Labour Organisation are
accessible, and though often lacking in substantive quality, they
accurately reflect international efforts on behalf of indigneous
peoples of their time. United Nations materials are far more problematic,
particularly regarding the current "Study of the Problem of Discrimination
Against Indigenous Peoples" reviewed in Chapter Four. Difficulties
related to access to the data and debilitating deficiencies in
information flow in some areas of United Nations research are chronic I
and a sizeable obstruction to research and dissemination. In general,
however, most data have proved adequate to their intended utilization
in the analysis. In many instances, these are not merely sets of
representative data, but rather exhaust available information in

specific areas.

l7

Notes

I. This represents only a subset of interests. Implicit and explicit
specifications of preference may never be acted upon, may be
revented from realization in a course of human action (through
coerc1on, etc.), or may be misrepresented as a preference (e.g.,
false consciousness). Obviously, social action may also embody
a second-best preference in the case where one's first preference
is subverted, for whatever reason.

2. Other senses of ''case" are applicable to social scientific inquiry.
For example, the act of "casing" is suggestive of a type of
ethnomethodology which Douglas (I976) chooses to call
investigative social research. The case approach of social and
cultural anthropology is fundamental to the discipline, and has
since Boas commanded center stage in the ongoing epistemological
and methodological controversies regarding its conceptualization
and operationalization (relativism versus relationism/comparison;
emic and etic approaches, etc.).

3. The case system was begun at Harvard in l868-7O by
Christopher C. Langdell as a method of studying the law. It is
the most widely used method in legal education in the United
States.

CHAPTER TWO
THE CONCOMITANTS OF IMPOSED LAW

The intent of this chapter is to propose the substantive framework
from which a performance assessment of the Indian Civil Rights Act
can be cast. The discussion is developed in three areas. First,
a portion of the intellectual heritage of macro considerations of
law and societyl/ is reviewed in the works of Marx and Engels, and
Weber. It is suggested that their selective integration is both
feasible and requisite in terms of addressing the scope and breadth
of legal issues which are too often sidestepped in the U. S. variant
of the sociology of law. Second, an institutional perspective is
outlined, drawing from Commons and Schmid. While decidely micro and
transactional, this approach is rooted to macro concerns, and owes
a particular debt to the earlier work of Weber. Third, a type of law,
imposed law, is distilled from the previous discussions, largely
on the basis of loci of power and legitimation. The character of

imposed law, its development and impact, is the underlying theme of

the ensuing chapters.

Macroscopic Perspectives on Law and Society

Commenting on the micro-level analyses so prevalent in the

American sociology of law, Gibbs (I966) bemoans the deflection from

18

l9
a "grand tradition "in the study of law and society, a tradition

which was more attendant to law as a constituent whole than as
fractional elements divorced from their rootedness to social order.
A partial clue to Gibb's dilemma is contained within disparate
conceptualizations of the sociological domain. As Rheinstein(l954)
notes, European sociology has defined as its proper realm of inquiry
"what there is in comnon in all those social activities which
constitute the subject-matter of the specialized sciences, and how
they influence and interact upon each other, in our society as well
as in societies of other cultures, past and present, developed or
primitive." American sociology, caught up with intellectual and
professional boundary maintenance issues, studies the terrain of social
life which is not preempted by other social sciences and is hence
limited in attaining a panoramic view of social relationships.
Though glib, these characterizations of discrepant purview are not
easily reconciled, and the impact of disciplinary parochialism is
evident in the American study of law and society during the past
thirty years. The preponderance of this research has been limited
to a narrow range of issues -- courts, juries, legal profession,
etc.g/ -- while needed synthesis of these manifestations of law,

as well as the larger questions of the relationship of law and
political economy and the like have gone begging.

Of the few macroscopic considerations of law and society, Max Weber's
Wirschaft und Gesellschaft (Chapter VIII)remains a basic text in the
sociology of law. Weber's examination of the law is fully subsumed
within his broad inquiry of the social bases of modern capitalist

society. Contemporaries (e.g., Dilthey, Troeltsch) and predecessors --

20
in particular, Marx and Engels -- were similarly engaged. Gerth and
Mills (I946), Zeitin (l968), Giddens (I974) and Balbus (I977) have
all presented reasoned arguments that lessen the popular "distance"
between Marx/Engels and Weber and constructively suggest phantom
dialogues. There are obvious disparities in thought that mitigate
the concert of Marx/Engels and Weber. For example, Weber attributes
the development and movement of the law in contemporary society to
an evolution of capitalist spirit: Marx/Engels tie law to the material
conditions which require it. However, both Marx/Engels and Weber
isolate power as the causal variable which affects environment and
socio-economic conditions from which law results. On this basis,
these theorists and their “schools" of thought make valuable
contributions to an understanding of law. A brief sketch of their
perceptions of law establishes the bases of their division, but more

importantly, the substance of their compatability.

Marx and Engels on Law

 

One should pause to consider, before attempting to expound a

Marxist theory of law, that neither Marx nor Engels were very neat

or concise with legal issues in the body of their work. The particulate
elements of such a theory of law must be assembled from many diverse
sources. An impatience has prevailed among intellectuals, however,

for what is commonly represented as a Marxist theory of law in over-
whelmingly reductionist: the Marxist position is said to only speak

to law as coercion, to only advance an economic theory of law, and

to be essentially ut0pian i.e., law will wither with the state. There

2l
have been exceptional attempts to avoid such reductionism, such as
Pashukanis (l978), Renneré/(l948), and Gramsci (I971, I977) and the
more recent work of AIthusser (e.g., l97l), and Poulantzas (e.g., I975).

3/
Drawing from primary sources, some elements of Marx and Engels'

considerations of law are proposed, less to obviate the reductionism
than to sample from their range of analysis.

Marx and Engels focused on the relations between law and the
institutions of society which law maintained. Their attention to law
was primarily to uncover its class character and to situate the law
within class struggle engendered by relations of production under
capitalism. The origins of the state lie with the emergence of
private property, the increasing division of labor, and the subsequent
division of the collectivity into classes where functions (e.g., the
administration of justice) are exercised by a minority of individuals.

Law derives from the origins of the state:

The material life of individuals, which by no means
depends merely on their "will,“ their mode of
production and form of intercourse, which mutually
determine each other —- this is the real basis of
the state and remains so at all the stages at which
division of labour and private property are still
necessary, quite independently of the will of
individuals. These actual relations are in no way
created by the state power; on the contrary they
are the power creating it. The individuals who
rule in these conditions -- leaving aside the fact
that their power must assume the form of the state --
have to give their will, which is determined by
these definite conditions, a universal expression
as the will of the state . . . The expression

of this will, which is detegyined by their common
interests, is the law . . .

Despite the size of a society and its functions (e.g., feudalism,
capitalism) the role of the state remains the same, namely, to

maintain the domination of one class over other classes.

22
The state present itself to us as the first
ideological power over man. Society creates
for itself an organ for the safeguard of its
common interests against internal and external
attacks. This organ is the state power.
Hardly come into being, this organ makes itself
independent vis-a-vis society; and, indeed, the
more so, the more it becomes the organ of a

particular class, the more ig directly enforces
the supremacy of that class._/

The state, then, refers to the organization of authority in a class
society: law is the will of this authority -- not free will --
defined by the material conditions condusive for the maintenance of
class privilege. Law consists of rules of conduct, affirmed by the
coercive powers of the state authority, which define and secure

the ordering of property rights and relations to ensure the class
configuration of society. Justice is reduced to statute law and
derives from the common interests and will of a ruling class.

For Engels and Marx, law does not determine relationships, but
rather emerges from economic relationships based upon private property.
As the factors of production become private property (which'does not
happen a§_private property emerges, only when it reaches certain
proportions) the conflict between "have" and "have nots" becomes
apparent: law governing private property ensures the protection
of ownership and ostensibily protection of class relationships. While
production relationships are formed independently of the human will
(discounting the will to survive) law is consciously formed to direct
and solidify a valued ordering and flow of interdependencies. As

such, law is an ideological form:

23

The individuals composing the ruling class possess
among other things consciousness, and therefore
think. Insofar, therefore, as they rule as a

class and determine the extent and compass of an
historical epoch, it is self-evident that they do
this in its whole range, hence among other things
rule also as thinkers, as producers of ideas,

and regulate the production and distribution of

the ideas of their age: thus their ideas are the
ruling ideas of the epoch. For instance, in an

age and in a country where royal power, aristocracy
and bourgeoisie are contending for domination and
there, therefore domination is shared, the doctrine
of the separation of powers proves to be the
dominant idea and is expressed as an "eternal law."

The superstructure of society (including law) determined by material
conditions, the system of production and exchange (which control the
flow of interdependencies) and resulting social relations, react upon
the economic order which in turn confirms and develops the economic

system further:

In the social production of their life, men
enter into definite relations that are
indispensable and independent of their will,
relations of production which correspond to a
definite stage of development of their

material productive forces. The sum total of
these relations of production constitutes the
economic and structure of society, the real
foundations, on which rises a legal and political
super-structure and to which cgrrespond definite
forms of social consciousness._/

In addition to law, moral norms and custom have an impact on
human conduct. Moral norms are not, as is the case with legal norms,
enforced by the state though they are a critical part of human
relationships. The force of moral norms rests with the opinion of

the social class, rooted to material conditions. While moral

24
norms can deviate from dominant morality, legal norms assume a

"universal valuez"

With further social development, law develops

into a more or less comprehensive legal system.

The more intricate this legal system becomes,

the more is its mode of expression removed from

that in which the usual economic conditions of

the life of society are expressed. It appears

as an independent element which derives the
justification for its existence and the substantiation
of its further development not from the economic 9/
relations but from its own inner foundations . . :-

As is true of moral norms, custom is not guaranteed by the coercive
force of the state though it differs from morality in that it does
not appraise good or bad conduct, but only asserts tradition. Custom
predates legal norms and has historically played into different
interests: resisting law, becoming law, or flowing from law.lg/

Marx and Engels rejected the notion that law could be understood
by itself, as purely autonomous, or through an evolution of "spirit:"
"It is above all this appearance of an independent history of state
constitutions, of systems of law, of ideological conceptions in every
separate domain, which dazzles most people."ll/ Law had to be
analyzed in terms of the material conditions which required it. It
is the economic base of society, expressing both the development of
material productive forces and the social relations of production

which causes law to appear. Fundamental change in the economic

base would also require a fundamental change in legal norms:

But what do you understand by maintaining the
legal basis? To maintain laws belonging to a
bygone era and framed by representatives of
vanished or vanishing social interests, who

25

consequently give the force of law only to

these interests, which run counter to the

public needs. Society is not founded upon

the law; this is a legal fiction. On the
contrary, the law must be founded upon society,
it must express the common interests and needs

of society -- as distinct from the caprice of

the individuals -- which arise from the materieI
mode of production prevailing at a given time.__/

The common interests and needs of bourgeois society prevailed, and

law became a tool used to exploit labor, both directly and indirectly.
Workers, due to their dispersement and division into different types

of work, are slow to realize their common interests and are therefore
slow to become ppg_class. They see their interests and their employer's
interests intertwined, and hence when the interests of employers
conflict, the interests of their workers conflict. A social system
which rejects such intra- and inter-class conflict, and opts for a
return to cooperative living (non-exploitive relations) would in turn

cause the state to "wither away:"

The first act by virtue of which the state
really constitutes itself the representatives

of the whole of society -- the taking possession
of the means of production in the name of society --
this is, at the same time, its last independent
act as a state. State interference in social
relations becomes, in one domain after another,
superfluous, and then withers away of itself;
the government of persons is replaced by the
administration of things, and by the conduct

of processes of production. The state is not
"abolished." It withers away.l§/

As the state apparatus is slowly dismantled (during the revolutionary
dictatorship fo the proletariat) and the bases of bourgeois society

dissolve as class distinctions dissolve, law -- whose function is

26
protection of an inequitable ordering of property relations -- will
in its turn become obsolete.

Adoctrinaire interpretation of Marx and Engels' discussion of
law, focusing as it might upon the eradication of class relationships
and their appropriate superstructure -- including law -- does little
to encourage sustained and systematic study of law in modern society.
Critics who dwell on such interpretations, however, are oblivious to
attempts to incorporate a Marxist framework, ranging from Renner (I949)
to Tigar and Levy (I977). The complexion of substantive foci subsumed
under a Marxist analysis of law and society is variable (Tushnet, I977,
speaks most directly to this point). Contra Schur (l968) and others
who insist that a Marxist analysis of contemporary law is fruitless,
these and other works detail the parameters and agenda of a Marxist
trajectory in the study of law and society. However, it should be
noted that the revival of interest in Marxist analysis of law underscores
yet another deficiency in resulting analyses. Those who acknowledge
the limitations of parochialism or orthodoxy in Marxist analysis, and
go on to embark on varied and innovative approaches to the study of
law, have nonetheless largely failed to come to terms with the
sociology of law. The costs of such an "oversight" seem at once
obvious and conspicuous.l§/ The work of Weber, as noted above,
remains a basic foundation of the sociological school, and is largely

amenable to Marxist analysis for the purposes of the present study.
Weber on Law

Weber's focus on law,l§/ specifically the features of law which

were factors in the development of modern capitalism, expands several

27

dimensions beyond Marx and Engels' formulation. While Marx and
Engels treat law as a device to legitimate and solidify class
relations withina "monocausal" conception of history, Weber extends
his analysis to include other social institutions whose proportional
influence on the law of capitalist society he considers significant.
As the following passage suggests, Weber seeks to shift the emphasis
on the linkage between law, economic activity, and revolution so

crucial to Marx/Engels:

Under certain conditions a "legal order" can
remain unchanged while economic relations are
undergoing a radical transformation. In theory,
a socialist system of production could be brought
about without the change of even a single
paragraph of our laws, simply by the gradual,
free contractual acquisition of all the means

of production by the political authority. This
example is extreme; but, for the purpose of
theoretical speculation, extreme examples are
most usefil. Should such a situation ever come
about -- which is most unlikely, though
theoretically not unthinkable -— the legal order
would stillibe bound to apply its coercive
machinery in case its aid were invoked for the
enforcement of those obligations which are
characteristic of a productive system based on
private property. Only, this case would never
occur in fact. (emphasis added). 35-36

Weber's theoretical argument, though consistent with his ideas on

 

legal rational change, is a labored effort to engage the so-called
Marxian presumption that it is only law and the §tgtg_that are
inextricably intertwined in capitalist society.

A salient feature of Weber's treatise on law for the present
study is the specification of interests -- including but not limited

to political authority -- which have bearing on social order. The

28
character of these interests -- a constellation of interests -- their
genesis and interface (conflict and accommodation) underscore many
crucial features of Weber‘s understanding of the rise of modern
capitalism.

For Weber, social relations imply conduct oriented between
persons -- regardless of the affectivity of such relations (e.g.,
struggle) -- which can either take place through force of habit (custom)
or in the pursuit of interests (aim-rationality). When social actors
contemplate conduct because of obligation or interests, and social
relationships assume regularity, an p§de5_of conduct exists. The
legitimacy of such an order can be guaranteed internally (emotions,
values, religion) or externally, through an expectation of disapproval
(convention) or the probability of physical/phsychological coercion
(law) should conduct violate the order. Hence belief in legality,
self interest or tradition (usage) ascribe validity to a social
order. [See Figure l for summarization of types of legal thought,
and their "evolution" to uniquely Western "jurisprudence of concepts."]

The order of law derives empirical validity through its
guarantees, ranging from unreflective habituation (approximately,
custom) to the probability of approval/disapproval, to the lack of
presence of psychological/physical coercion. Individual interests
are affected by the empirical validity of legal norms: opportunities,
present and future, can be created or denied, protected or exposed
(chance) through state or extra-state guarantees. State guarantees
may not be superior to all others and may conflict with extra-state
guarantees. The coercive apparatus of extra-state guarantees can be

formidable: churches, corporate groups, clubs, etc. can formulate

253

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acucaaao ago «Ea—aoLa La_.s.m .Axp-.._>— .c.~um=_o;¢v
s»v_a._auo ho om.L use ac.cau ace:.sov do» no: we: soumxm
.moo- Lo we». n.3a aces: -. wee—mcu ..u.o -- «oucaumc_
ou auc.oa upoms_: Lona: gazes“ .Au._o=ovaac peace.
A—pau_mop a» moan—«L an Hma Asm._au.aau ccovoe. ~c~.acu
.6 3:23:63 2:. 5238.59 2: 3 2,322.8 2.3...
as“ use a¢_oca cu ao~=o.go guaccou .paco.uac amoacaa
on yo: can: to. be aoQJAm .eco_uac .aacoe a—pau_oop
< .u_no:.sgo. oco .co>oxo; .uovucuau.m:ou=. .ou.ao_
a“. .u>oaa mzocga cmxocn as» an vouau.v=. m. acagu
36.. o—a.mmoa < A.._>. .:.oumcwoz¢. ..uu=c:cu u_socouu
.o no.5oaeuou use ca .o—.~Loa mac—p agape uo>.uu=oo
x—m:c_sao ace “gazes“ .ooo- Lo uoficoaouau esp: ”o=.v:..
za— ago o:_x~3 3a— .6 moaxu ca uuzucou .a.uom :.
movau.uuo paucoe x=.— cu co.uouaeou acocum o a. «Leap.

 

 

ou_egu .eco_uoc
x; vac—scouoc a. new omoacaa
_au_uoaca o9 voyeu.co u— auavcou "—oco.ua¢ amazes;

 

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aaozu.z Loaoca an antenna; .Ioumau
o:_~> - on souco.co a. guaccou "—~:o_ua¢ «mam»

 

 

I

acowuoao ch unc.—oou no euc.ncou~v “pacovuoau

 

govaasu.aog o>—»uu_~uccaxoaom: "9.»m.—aco*u_uucp

 

cuuavcou —o_uom :— movauvua< —eu:a:

Am~a_v abezum_pemo¢ vs: “yogum 5.3 .Lan: net

 

so. .0
no.3; use no =o_uoo.—aa¢ Lo co.un—o.»
.3532... .55.... a. «26:3 :33 c.

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cum—asou .uoc.a»:ou a a. zap o>.u_woa .u

=o_u.uoa as“ mu_~_» 9.90. Ag

mco.ua:..n goo. caucuzou
cu eo.paa~ 9L. 3-— Lo no.3; “assumes .-

 

xod uo soumxw .occ.ua¢ pascou h~pmmflaoa a Lo moan—:umoa

._oma_ 3a. ogu ho muauucou auscumna Co um: and lace
xo_—o~ «co—mapucou -- uaaoucou be oucovacnm_caw "—oELou xppou.mod .~

 

Aacoucou mamco>v Eco. cog: comma
aco.m:_ucou -- m=o_uoumo_.coa u_m=.cuxo L.oga
socu mucou.».=o.u race ma_:mco.u~—oc poou— "peace; a—pau_m:_cuxu .—

 

Au_mon omou ou ammo a co one. voc.scouov Ap—ou.cocuo
\ llme oco gu.g3 «gun. o>_uacoao so». erase u=c_u:~ucou .Au.—oco_uo¢ —aEch .o

 

xu'_og cured co .uu.zuo .co.o.—uc no goam
.. 3a. .6 o>¢m:—uxo .. loamAm _au.ao—oov. en en
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\ Ilmwv go some: .mco.m:_ucou scaca.aua "Nww~oco.uacs_ o>.ucouma:m .n

 

.mco_ao—o>os .uo—uaco.
\ Ilmwv cameos cacao; memos an voc.:a ago.»:—ucou "au.—o:o.aocc_ passe; .<

 

“Acauu—v-La:0u can
acoun.mcouc.. mo—as .acocoa so toe_=u co: «La aco.u:—ucou "paco_uacc_ .—

 

 

.uw.vc_u sea use acmmmr so; 50 mommy

muaoucou mo oucouasan.cae u.coao:

_ 95...:

30
"law" which is not limited to norms enforced by the state. Hence
" 'legal order' shall rather be said to exist whenever coercive
means, of a physical or psychological kind, are available; i.e.,
wherever they are at the disposal of one or more persons who hold
themselves ready to use them for this purpose in the case of certain
events . . ." (l7) While coercion by physical violence is the
monopoly of the state, no such monopoly lies with the state for
non-physical coercion. Coercive intervention can represent a concert
or conflict of interests, including the state, the state reinforced
by pressure groups (corporate groups, kin groups, etc.), the state
limited by pressure groups, or pressure groups limited by the state.
The outcome of the struggle over means of coercion is variable.

Human conduct ranges from habitual (usage) to consensual
(convention) to obligation (law), with transitions from one stage to
another unclear. That human conduct comes in time to represent
"ought" behavior implies that innovation -- whether externally or
internally induced -- is inhibiting. Where an innovation arises from
"inspiration" (and the inspiration is shared) consensus and law will
likely result. Law, as has been noted, is one orientation for
consensual action; it is not, however, the only orientation. A
"collective order" (e.g., communal action) describes the regularities
of conduct which may be oriented to law, or what may instead reflect
compatible self interests which, though lacking legal guarantees,
are essential to collective action and consensus. Recurrence of
conduct, in that it assumes an ought character in a social group,
becomes a powerful influence over social conduct, whether it is
unreflective habituation or conscious choice and whether its violation

is disapproval or the probability of coercion.

3l

The fact that "norms" may guide interaction because of anticipated
adherence to their "ought" character does not negate the impact of
guarantees of the "ought" behavior (wide consensus or probability of
coercion). These conventional guarantees are prevalent in the economy,
where economic exchange is often regulated by the probability of legal
coercion ("the interference of legal guarantees merely increases the
degree of certainty with which an economically relevant action can
be calculated in advance") though not exclusively. Many conflicts of
interests -- whose permutations are infinite -- cannot possibly be
covered by "the law" and hence a rational legal order (this also applies
to convention) in this case is not guaranteed by legal coercion, but
will respond to perceived self interests. The regulation of behavior
by coercive means is not a prerequisite for rational social order:
"While the orientation of communal action to a norm is constitutive
of consociation in any and every case, the coercive apparatus does
not have this function with regard to the totality of all stable and
institutionally organized corporate action." (33) Law guarantees
broad interests (such as authority - church, family, state) which are
not economic in and of themselves, though material interests "are
among the strongest factors influencing the creation of law." Legal
coercion in the economic sphere is limited to the capacities of
individuals in the market (the market assumes a life of its own as
individuals become increasingly interdependent) and to the relative
strengths of interests promoting law and interests in the economy:
"the inclination to forego economic opportunity in order to act
legally is obviously slight . . ." Disparate class interests,

breakdown of tradition and sacred usages, disintegration of

32
alternative associations to guarantee the legal order, etc. have meant
the development of a legal order for the economic system guaranteed

by the state.

The universal predominance of the market
consociation requires on the one hand a legal
system and the functioning of which is
calculable in accordance with rational rules.
On the other hand, the constant expansion of
the market consociation has favored the
monopolization and regulation of all
'legitimate' coercive power by ppe_universal
coercive institution through the disintegration
of all particular status-determined and other
coercive structures, which have been resting
mainly on economic monopolies. (40)

That a host of factors temper and influence law is clear. Economic
factors are but a subset of these: the rational approach (i.e., legal)
to complex claims in the market, for instance, has lead to legal
sophistication and increasing reliance on political authority to
contend with competing interests. These developments have in turn
affected economic organization.

Law serves the interests,especially the economic interests, of
organizations fused into the "state." The power to control a person
or thing is durable and predictable if the power is guaranteed by
law. A right is a source of power (to prescribe or prohibit).
Privileges are guaranteed expectations, such as freedom from inter-
ference (e.g., from the state) and freedom to regulate interdependencies
(e.g., contract). While in an economy lacking market exchange law
governs noneconomic relations and privileges -- based on status,

origin and education -- economic privileges (such as regulating

exchange by contract) have been expanded as the marked expands.

 

33

The modern market is typified by complex orderings of legal
transactions based on exchange. Interests, particularly market
interests, influence this ordering of guarantees. The predominance
of contractual freedom generally in evidence today has not always
existed. However, "the most essential feature of modern substantive
law, especially private law, is the greatly increased significance
of legal transactions, particularly contracts, as a source of
claims guaranteed by legal coercion." (lOl)

The legal foundations of the rights and obligations of
individuals or the "public" (e.g., the state) lie with "contracts,"
though the tenor of contracts has changed from predominantly voluntary
(status contracts) -- even as a device of economic acquisition -- to
a reflex of the market (purposive contracts). This transformation
ranges from primitive contracts (acts of magical significance with
magical guaranty) to barter, to obligation, to actionable contractual
claims. Contractual freedoms are limited by the lack of legal
institutions (to lend legal recognition to a contract), sacred, ethical
or political interests (as in freedom of sexual conduct or in freedom
of voluntary submission to slavery) as well as the social and economic
interest of the powerful classes (e.g., bourgeoisie). The
monopolization of law by the modern political organization facilitates,
through special law, the extension of effects of a contract beyond
its immediately interested parties. This modern development occurred
with expansion of the market economy and consolidation/bureaucratization
of the activities of consensual communities. As a result, “the general
transformation and mediatization of the legally autonomous organizations

of the age of personal laws into the state's monopoly of law creation

34

found its expression in the change of the forms in which such organizations
were legally treated as the bearers of rights." (l54)

The modern legal development of contractual association and
freedom of contract is assumed to decrease constraint and increase
freedom of individuals. However, such a contention is limited with
respect to the legally guaranteed distribution of power and goods:
specific interests -- those who enjoy relative power in the market --
can effectively utilize contractual freedom to increase their power
over others. Particular constellations of law variably affect interests
in the market: some are powerless to avoid the consequences of those
whose interests are enhanced. While mandatory and prohibitory norms
may decrease with the growing "freedom" of contract, the established
property distribution impacts the genre of "coercion." Hence, "in an
order of private economy . . . coercion is exercised to a considerable
extent by the private owners of the means of production and acquisition,
to whom the law guarantees their property and whose power can thus
manifest itself in the competitive struggle of the market." (l89) The
salience of this form of coercion, despite its lack of overt authoritarian
forms (couched within "free" contract), is guaranteed in the "laws"
of the market place which are guaranteed by prospects of decrease or
loss of economic power and viability in the market. "A legal order
which contains ever so few mandatory and prohibitory norms and even
so many "freedoms" and "empowerments" can nonetheless in its
practical effects facilitate a quantitative and qualitative increase
not only of coercion in general but quite specifically of authoritarian

coercion." (l9l)

35

As the use of administrative "officials" to exercise power became
more pervasive (i.e., the more rational authority became) the more
rational both the form and content of law became. This increasing
rationality of law corresponded to the increasing rationality of
administration, which in turn was prodded by the relative advantage
which this rationality afforded particular interest groups. Judicial
formalism guarantees to interests predictable legal consequences
for actions and delineates "rules of the game" which (I) mitigate
"freedom" because inequitable distributions of economic power are
legalized, (2) are adverse to the interests of authoritarian powers
because the individual is less dependent upon the "grace" and power
of authorities, and (3) undermine democracy as they effectively
reduce the impact of the citizenry on legal practice. Formal justice
is well suited to political and economic interest groups who value

stability and predictability in the legal system. The abstract

(versus substantive) nature of formal justice is the "decisive merit . . .

to those who wield the economic power at any given time and who are
therefore interested in its unhampered operation, and also to those
who on ideological grounds attempt to break down authoritarian control
or to restrain irrational mass emotions for the purpose of opening up I
individual opportunities and liberating capacities." (229)

It is likely that any attempt to eclectically amalgamate Marxian
and Weberian views on law and society will run the risk of diminishing
the energy of specific strengths of each perspective. Fundamental
discrepancies are evident, but should not completely overshadow bases
of similarities. For instance, despite the breadth of his treatise,
Weber considers all interests -- exgept_for the state's -- to be

functionally equivalent. Weber does not expound on the autonomy of

36

law, which would follow logically from complete functional equivalence
of interests. Instead he emerges, as Marx before him, tying law to
those who manipulate environment and socio-economic conditions in
order to engender inequalities in power (from which law and the tenor
of law results). Marx and Weber remain strange bedfellows, however,
for their definitions of state, state function, and state interests
remain disparate. Their conceptualizations of modern capitalism are
discordant. Marx, who methodically points to the subversion of rational
and beneficial technological advances within an environment dominated
by competition, profit and private property, underscores the irrationality
of a system characterized by class struggle. Weber, on the other hand,
insists that modern bureaucracy, as expressed in modern capitalism,
is the embodiment of efficiency and calculation, and hence, rationality.
'While Marx focuses on the crisis proportions of class conflict which
will ultimately transform the very nature of society, Weber eyes
conflict as simply one problem in the bureaucratic management of the
state: the accommodation of conflicting interests is a penchant of
rational bureaucracy. Such discrepancies are immeasureably amplified
as we consider fundamental issues in the relationship of law to the
social system it regulates. 8y relegating law to bureaucratic
administration, Weber obscures the place of law within the social
change engendered by conflicting interests.

It is within this tradition of macroscopic perspectives on law
and society, of which Marx/Engels and Weber are but representative,l§/
that the substantive agenda of an institutional perspective emerges.
Despite seemingly divergent Marxian and Weberian perspectives on the

character of law, the immediate task is to fashion a reasonably

37
eclectic framework from which to proceed with an analysis of imposed
law. Some elementary themes of an institutional perspective are
suggested, which when combined with elements of the foregoing discussion,

will suggest a framework for performance analysis of imposed law.

An Institutional Approach

 

What shall be characterized as an institutional perspective is
derivative of institutional economics, particularly the recent
contribution of Schmid (l978). Discourse on the intersection of law
and economics, a recurrent theme of institutional economics, is
exemplified in the work of Henry Carter Adams (I896) on the role of
jurisprudence in industrial administration, Richard T. Ely (l9l4) on
the distributive consequence and function of property and contract,
and John R. Commons (I924) on the legal foundations of capitalism.
Commons' thesis in particular displays a readiness to dissect the most
basic terms of human interaction (reflected in part by his liberal use
of analytical jurisprudence, such as Hohfeld, I9l3, l9l7) within a
diagnosis of institutional problems. In his Legal Foundations of

Capitalism, Commons attempts to plot an evolutionary theory of value

 

(or as he calls it, a theory of Reasonable Value) much as Veblen had
indicated in his earlier social criticisms. Commons' specifications
of conflicting interests, emphasis on the role of power in provision
of the public good, and attempts to analyze the social framework of
the economy are included among the central themes of the subsequent

development of institutional economics.

38

. .in a science of human transaction there
is no clear dividing line between utility,
sympathy and duty, between economics, ethics
and law. The law, or working rules of society,
take over, as best they can, the inducements
of violence and thereby eliminate, as best they
can, other unethical inducements. But ethical and
unethnical elements remain, simply because exchanges
are transactions between persons, official and
private. Hence a behavioristic definition of
political economy as the subject-matter jointly
of the science of law, ethics and economics,
would not be limited to the traditional mechanics
of "production, exchange, distribution and
consumption of wealth" which are relations of man
to nature, but would include them as secondary,
and would be defined as primarily a set of
relations of man to man, both national and
international which might be formulated somewhat
as follows: Political Economy and Political
Expansion are the proportioning, by means of
the working rules of going concerns, of persuasive,
coercive, corrupt, misleading, deceptive and
violent inducements and their opposites, to
willing, unwilling and indifferent persons, in a
world of scarcity and mechnical forces, for
purposes which the public and private participants
deem to be, at the time, probably conducive to
private, public or world benefit. (I924: 387)

Schmid (l978) proposes linkages between law and the production and
distribution of wealth and focuses on a range of malleable
institutional variables which affect institutional performance. A
particularly salient theme of his treatise (one of several) to the
present study is the distributional impact of choice. Briefly, some

elementary notions regarding transaction and choice are proposed.

Interdependence

The direction of human interdependence, whether it is to mean
cooperation or conflict, and its distributive consequences, will

depend upon the structure of power, animated through the distribution

39
of rights. Individual choice or a course of action proceeds within
this context, and is related to a number of factors. The first is
whether the opportunity exists for an actor:

I) Can the actor afford it -- are the "costs" beyond what
the actor is willing to pay?

2) Does the actor have a right -- is the actor allowed --
to pursue the opportunity, or conversely, is there a
sanctioned impediment to this course of action for the
actor?

3) Does the actor, despite having the right to choose the
opportunity, have the requisite power to assert that
right or desire in the face of scarcity (i.e., where a
limited number of actors can have or pursue the same
good or goal)?

A second factor is whether the opportunity isgpursued by an actor:

I) Does the actor have knowledge -- information -- that the
opportunity either exists or that it is within the
actor's means (given that conditions of power,
availability, and affordability of information are
satisfied)? Without such information, an opportunity
may exist hypothetically, but cannot be pursued
practically because<3fignorance.

2) Does the actor choose this opportunity in the face

of alternative courses of action that variably affect

the actor's welfare? Factors, such as the relative

costs of opportunities, the motivational investment

of the actor, and power (e.g., a decision ppt_to pursue

an opportunity may be evidence of an actor's power)

are relevant here.
A third factor, related to the previous two, is whether the opportunity
is attainable. Any actor's ability to attain a good or goal will
depend upon the distribution of opportunities. A choice by one actor
may mitigate the possibility of a like choice by another actor and
affect the remaining opportunities. Hence, Samuels (I972) concludes
the economic system is a "system of mutual coercion in which the

choices of each individual have eventual impact upon the opportunity

sets and choices of others." Choice, he points out, is both a

 

 

40
a dependent and independent variable: an actor can affect the terms
of social action and alternatives available to others, and others can
affect the terms of social action and alternatives available to the
actor. Individual choice, then, is subsumed within the collectivity
and the expression of interdependence, institutions.lZ/

Human interdependence is transacted in the sense that choice
generally take place within a system of coercion where rights of one
actor stand in relationship (complementary or conflicting) to the
rights of another: the outcome of interdependence derives from this
relationship.l§/ A transaction, or the transactional components of
choice, may be of several types. In a bargained transaction, both
parties mutually coerce and consent to transfer rights. Administrative
transactions imply one-way coercion, where an actor may relinquish
rights to a superior and receive nothing (benefits may, in fact,
accrue to a third party). In status transactions the one-way movement
of rights results from prescribed social obligations, and not stark
coercion (unless one chOOSes to view culture and tradition as
essentially coercive in the context of human growth, development, and
potential). Grant transactions involve the will of the grantor,
whose transfer of rights is not coerced but based upon the grantor's
benevolence (i.e., consensual rather than dependent reciprocity).lg/

Processes of choice and transaction are relative to the structure
and pattern of power and rights. An understanding of human
interdependence requires elucidation of the driving forces and logic
of the status quo to determine upg§e_interests count within éfl.
arrangement (not the_arrangement) of property rights. The

possibilities for allocating rights are endless, and each will attend

4l

to the welfare of particular interests more completely than other
formulations. Power is a pivotal factor here: which interests are
to count will depend greatly upon the ability of some actors to
structure the direction of interdependence so their interests become
their rights. In this sense, power is reflected in the structure
of rights and rules for creating such rights.

Benefits and costs accrue to interdependent actors in a system
of coercion. The distribution of these benefits and costs
(including externalities) are again a function of the distribution
of power and rights. Some persons may have a right to pass along the
various costs of their choices to others who conversely do not have
a right, or do not have the power, to avoid such consequences. As
a power structure changes, the substance and distribution of
externalities will change. Decisions on how to parcel out
externalities, costs and benefits, include specification of preferences
(regardless of the consciousness of decision makers to these factors)
as to how power is to be arranged, who shall do the deciding and who
shall not be deciding, whose choices are salient and whose are
encumbered, which costs are acceptable and which are not related to
the public good (which public?), and how conflict is to be resolved
(whose interests will count?).

Drawing from both the macro Considerations of law and society,
and their micro-transactional expression in institutional theory,

a delineation of a type of law, imposed law, is made.

42

Imposed Law

Though use of the concept "imposed law“ has gained some recent
momentum (e.g., Burman and Harrell-Bond, l979), its use in socio-legal
analysis remains somewhat contrived due to a lack of specification
of why imposed law is exceptional law. Clearly, if an imposed sanction
means that a winner and a loser are designated when interests conflict,
we are speaking generally of the corpus of law. Some Marxist
interpretations would suggest that the nature of law is such that all
law is imposed. A populist interpretation may suggest that the true
nature of law is that it derives only from the willing consent of
those governed: this perspective would reserve a much smaller subset
of law, that which is not the willing extension of the governed, to
label "imposed," and would characterize such law as naked oppression.

A number of interpretations of imposed law are possible, just as there
exists diversity in theoretical and philosophical interpretations
of law generally.

A definition of imposed law, which eclectically combines elements

from the preceeding discussions of macro theory and an institutional

perspective, is offered:

Imposition reflects the nonalignment of
values, choices and behaviors of a group
with those prescribed and proscribed
values, choices, and behaviors in the
law which affect the group.

Briefly, the exceptional character of imposed law is proposed.

43

In general terms, the rule of law is characterized by
institutionalized sanctioning of a relatively limited number of
possible interests and behaviors over the mass of society,
representative of a relatively small elite who elicit compliance on
the basis of sanctions. Law is conducive to particular configurations
of social relations and material conditions, and in the interest of
enhancement, solidification, etc. of such relations and conditions,
state justice -- the administration of coercion -- fashions and
protects the social order. The administration of justice in a general
sense specifies (including socialization of those who administer the
law and those subjected to the law) the social values which rationalize
the rule of law and make compliance desirable. As a result, for
example, the material condition of propertylessness may not be viewed
as requisiteix>the accumulation of capital and endemic to a particular
system of law, but rather, the rule of law may be viewed as independent
and autonomous of the social relations it embodies and the material
conditions which result.

The exceptional or extraordinary character of imposed law derives
from the degree to which the locus of sanction and the locus of
legitimation are removed from those subjected to the sanctioned
prescription and proscription of values, choices and behaviors. In
the case of federal Indian law, the fact of historical external
sanction is clear. The tenor of the historical relations between
European ethnic groups and indigenous populations in the territorial
United States (discussed in Chapter Three and Chapter Five) is
reflected in the course of development of federal Indian law: the source

of sanctioned prescription and proscription of values, choices and

44

behaviors is generally beyond the control of Indian tribes and their
members in matters to which the law extends.

In addition to the alienated locus of sanction, the locus of
legitimation generally lies beyond tribal groups. Historically,
the imposition of federal Indian law reflects only minimal efforts
of the state to bring to bear its ideological arsenal in an attempt
to resocialize or engineer traditional group identities consistent
with the goals of the rule of law (e.g., fetishism of rights). The
broad-ranging policies of physical and culture genocide and their
segregationist manifestations absolutely mitigated against morphological
combination of political, social, economic and cultural forms. Attempts
by the state to "elicit“ legitimation were very limited and only
half-hearted. However, this should not suggest that the ideological
component of law (in this instance, its socializing/resocializing
dimension) is irrelevant to federal Indian law. The material aspects
of ideology is a third characteristic that distinguishes imposed law.

It is often assumedregardinglegitimation that the subjective
ideological nature of any legal concept is of paramount importance,
and that objective reality of the concept is a secondary or ancillary
concern. This position might argue that state power is only an idea
which materializes to the extent that individuals reify the idea and
allow it to govern their behavior and prescribe their own power. While
certainly relevant to an understanding of the law, this position
begs the issue of social being as social form: the state is indeed
an ideological form, but it is also a form of being and it embodies
the material nature of the relations expressed in ideological form.

Simple subjectivism will not do. For example, it will be proposed

45

that imposed federal Indian law is a manifestation of state penetration
into tribal jurisdiction and sovereignty. As such, this manifestation
is an objective entity. Hence we may study ideology and imposed
law, not as merely the countless and varied subjective forms through
which it is reflected and experienced, but in addition, from the point
of view of its material aspects, as an expression of regulation of
social relations that have assumed a legal character within a broad
constellation of interests.

The locus of sanction, the locus of legitimation, and the material
aspects of ideology are possible criteria for designating federal Indian
law as a special case, imposed law. These themes will be reiterated

in subsequent discussion.

46

Notes

l0.

Nader (I969) cautions that the phrase "law and society" is
inadequate and misleading if "law is conceived of as in reality
being a system independent of society and culture." (8) Law
cannot be freed of social and cultural entanglements which
define its development, form, and substance.

This is not to suggest, however, that the sociology of law

has been narrowly defined (e.g., Riesman, l95l, I952; Selznick,
I959; Skolnick, I965) or negate its intellectual heritage in
legal philosophy (Skolnick, I965).

There is some dispute regarding Karl Renner's "Marxist theory."
See Cain and Hunt (I979): 65, and Tigar and Levy (I977): 303.

These sources have been collected in Maureen Cain and Alan Hunt,
Marx and Epgels on Law (New York: Academic Press, I979).

Karl Marx and Friedrich Engels, Collected Works V-VI (London:
Lawrence and Wishart, I976): 329-330.

Karl Marx and Friedrich Engels, Selected Works III (Moscow:
Progress, l979): 370-372.

Karl Marx and Friedrich.Engels,-Collected Works V-VI (London:
Lawrence and Wishart, I976): 59.

Karl Marx and Friedrich Engels, Selected Works I-II (Moscow:
Progress, I969): 503.

Ibid.: 365.

This discussion is very delicate and crucial to some notions of

a Marxist sociology of law. Marx was clear in typing the withering
of the state to the withering of law. This poses a rather -
critical dilemma for a sociology concerned with how
interdependencies are to be ordered. The volume Soviet Legal
Philoso h (v.1. Lenin et al., Cambridge: Harvard University
Press, l9gl) is an excellent exposition of ideas regarding the
envisioned nature of law under socialism, specifically in the
USSR. Galunskii and Strogovitch, who compare legal norms to

moral norms and custom, postulate that within socialism law and
morality will fuse i.e., when the definition of moral norms is
consistent throughout society, legal norms will conform. Lenin,
in a companion piece in the volume, speculates that the order

of custom and morality will prevail in communism (initiated in
socialism) and unlike legal norms, will not require the coercive
presence of the state.

ll.

l2.

l3.

l4.

l5.

l6.

I7.

18.

l9.
20.

47

Karl Marx and Friedrich Engels, Selected Correspondence l846-l895
(Moscow: Foreign Languages Publishing House, l934)?fi’434-435.

Karl Marx and Friedrich Engels, Articles from "Neu Rheinische
Zeitung“ I848-I849 (Moscow: Progress, I972); 227-247.

Friedrich Engels, Anti-06hring (Moscow: Foreign Languages Publishing
House, I959): 386-387.

For example, Tushnet's (I977) discussion of instrumentalist and
structuralist Marxist theories of the state, focusing as he does

on contradictions between the content and form of the law due to
competing interest groups, is soundly within a Weberian perspective.

The primary source materials of Weber's thought on law and'
legal institutions have been collected in Max Rheinstein, ed.,
Law in Economy and Society (Cambridge: Harvard University Press,

 

T954): which is the source of all citations herein.

The impact of Marx on the institutionalist school has been
considerable. Comons (I924), for example, did not accept Weber's
notions of an evolution of spirit as the basis for the development
of rational, bureaucratic social structures, and turned instead

to the more systematic, structural requisites of capitalism

which Marx had indicated.

". . .if a simple definition is necessary, institutions are sets

of ordered relationships among people that define their rights,
exposure to the rights of others, privileges, and responsibilities."
(Schmid, l978: 5)

Of course, the nature of the_good or right is a critical element
of transactions. Some goods and some rights can be jointly
shared, while the consumption and use of other goods and other
rights precludes their availability to other actors.

A class transaction may be all of these.

There may also be nonalignment within a group, where belief in
a value and behavior do not coincide.

 

CHAPTER THREE
THE SOCIAL HISTORY OF INDIGENOUS PEOPLES

Drawing from the previous discussion, which situates law in the
nexus of social relations, it is crucial to specify the socio-history
that contextualizes what has been referred to as imposed law. This
task has two interrelated components. First, selective aspects 0f the
sociology of race relations and Americanist ethnology generally are
reviewed. Second, a more fecund model for conceptualizing the

l/

socio-historical development of indigenous peoples is proposed.
It is from the latter discussion that imposed law transcends its

legal form and becomes inextricably rooted to social process.
The Sociology of Race: Theories of Amalgamation

Though tempered somewhat by earlier analyses of immigrant
relations, modern studies of race relations in the United States have
generally been content to limit the scope of most inquiry to the dynamics
of contact. between the white majority and the dominant minority,
blacks. If even nominal concessions are made to the historical
development of these relations, however, the costs of such selective
inquiry become readily apparent. Prevalent explanatory models in
the sociology of race relations, whose principle referent is the black

experience, are replete with assumptions about the solubility of the

48

49
unique historical development among different racial and ethnic
groups in the United States. Understanding the dynamics of the black
experience is not, then, to necessarily comprehend the sum and substance
of other milieu in this country.

Often, theories of race relations assume racial conflict to be,
as Blauner (I972) observes, epiphenomenal and ephemeral. Included
among these theories are integrationist-assimilationist ideas such
as the melting-pot (Gordon, I964), immigrant analogy (Glazer and
Moynihan, I963), class-caste analogies (Dollard, I937), prejudice
(Myrdal, I944; Allport,l954), etcg/ Without exception, these theories
treat the specific and unique social—historical development among
different racial and ethnic groups as essentially malleable. Race
relations theories which give conflict a more prominant place in
their deliberations do not fare much better. A subset of these is
illustrative of the problem.

A rallying point of some intellectuals engaged (to whatever
degree) in the racial conflict of the l960's and l970's in the United
States was identification with ongoing Third World liberation struggles.
The international perspective afforded considerably more insight and
flexibility than previous parochial analyses and strategies for
oppressed peoples in the United States. While appeals for solidarity
among "Third World peoples" were prevalent among some minority groups,
Indian leaders most often struck discordant notes by rejecting the
possibility of such collusion outright. Vine Deloria (I970) provides

a rationale:

50

The most common attitude Indians have faced has
been the unthoughtful Johnny-come-lately liberal
who equates certain goals with a dark skin.

This type of individual generally defines the
goals of all groups by the way he understands
what he wants for the blacks. Foremost in this
category have been younger social workers and
clergymen entering the field directly out of
college or seminary. For the most part they
have been book-fed and lack experience in life.
They depend primarily upon labels and categories
of academic import rather than on any direct
experience. Too often they have achieved positions
of prominence as programs have been expanded to
meet needs of people. In exercising their
discretionary powers administratively, they have
run roughshod over Indian people. They have

not wanted to show their ignorance about Indians.
Instead, they prefer to place all people with
darker skin in the same category of basic goals,
then develop their programs to fit their
preconceived ideas. (I70)

One finds, however, that the notion of solidarity was doggedly pursued
in the social scientific literature despite the skepticism voiced by
those immediately involved in their struggle. Allen (I969) who
identifies Native Americans as people (sic) of the Third World, aptly

demonstrates this sentiment:

This raises for the nth time the thorny question

of domestic allies. The black liberation

movement needs allies. It needs allies who

are capable both of aiding the black movement

and of promoting social change in white America.

In recent years of growing sense of unity has
developed between Afro-Americans and Puerto Ricans,
Mexican-Americans, American Indians, and

Orientals. (28I)

This is not a mutecn~frivolous point for Allen. His strategy for blacks
in the U. S. is predicated on their ability to solidify the efforts

of peoples whose commonality is simply their oppression. The analysis

SI
presented by Gordon (I964) parrots a similar yelpe_of solidarity,
though from Gordon's point of view Indian inclusion is tenuous based
upon the responses of Indian agencies to universals, such as

discrimination against minorities in the United States:

The private "Indian" agencies are enthusiastic
supporters of the principle of "letting the
Indians decide for themselves" and are
therefore, in fact, committed currently to the
principle of Indian communal life . . . unlike
most other intergroup relations agencies in the
United States, the Indian agencies, so far as I
can see, do not concern themselves with general
problems of discrimination and prejudice in
American life. They are the most highly
concentrated in their deliberations and efforts
of all the group relations organizations. (l2)

Gordon's thesis§/ is couched in a sentiment which finds unity among
social relations agencies functional only to the extent that it
promotes the general assimilation of racial and ethnic groups into

the dominant society. In this respect there is significant divergence
between the purposes of solidarity for Allen and Gordon.

Tabb (I970) illustrates another problem with social science
explanatory schemes of race relations, namely, use of the historical
circumstances of non-black racial and ethnic groups as the basis for
speculation on the past, present or future of black Americans. In a
"Short Dictionary of Liberalism" Tabb discusses the "rhyme and reason"

of demonstration projects:

When funds go to help the poor, government
programs are traditionally paternalistic,
meaning simply that they breed and reinforce
dependency. The group that has been longest
under the care of the United States government

52

is the American Indian. After pacification,
his land was taken and he was segregated on
reservation and cared for by the Bureau of
Indian Affairs. Having been looked after the
longest, the Indian is the worst off of any
group . . . If this is the way White society
compensates a people whom it has systematically
robbed and murdered, why should blacks expect
more generosity? (l33-34)

The point of contention here is basing the future of blacks on the past
and present disposition of Native Americans: Tabb has not taken

into account a significant legal exposition -- based upon land tenure,
etc. -- which has orchestrated into an Indian "condition." Tabb would

be hard pressed to find the political, social and economic parallels

in the black U.S. experience to justify his speculation. Sidney Willhelm
(I970) proceeds from Tabb's level and takes this issue to its logical

extension:

The point is that the Negro may very well

come to be treated much as the American Indian:
confined to reservations or perhaps even
eliminated through genocide . . . The
possibility or the Negro transforming into the
American Indian is, to most, a startling and
unpalatable contemplation. (3-4)

White racism and elimination from sustained
employment bring the American Negro to the
identical, ultimate fate of the American
Indian . . . the Negro moves more decisively

in the direction of becoming at best like an
Indian ward. (333-34)

The above points, which speak to the fallacy of constructing analysis
and strategies based on simplistic appraisals of divergent historical
experience among ethnic and racial groups, represent issues which

contribute to a racial amalgamation phenomenon. As a result of this

53
blurring, Native Americans have by and large been neglected in

sociological explanatory schemes of race relations (which some Indian

leaders have been quite happy about).

At the level of policy, service delivery, etc., this tendency
to amalgamate diverse historical experience is part and parcel of
the bankruptcy of development theory and policy that Frank (I966)

speaks to:

. . even a modest acquaintance with history
shows that underdevelopment is not original
or traditional and that neither the past nor
the present of the underdeveloped countries
resembles in any important respect the past
of the now developed countries. The now
developed countries were never underdeveloped,
though they may have been undeveloped. It is
also widely believed that the contemporary
underdevelopment of a country can be
understood as the product or reflection solely
of its own economic, political, social, and
cultural characteristics or structure. Yet
historical research demonstrates that
contemporary underdevelopment is in large
part the historical product of past and
continuing economic and other relations
between the satellite underdevelopment and
the now developed metropolitan countries.
Furthermore, these relations are an essential
part of the structure and devel0pment of the
eapgtalist system on a world scale as a whole.

l8

These basic tenents of dependency theory can be superimposed over the
present discussion. While it may be useful and even necessary to
construct a paradigm of race relations at such a level of abstraction
that it speaks to the "American experience," attempts should be made
to grapple with the complexities of situating Indian peoples in such

an overview on their specific historical terms. Often, the historical

54

incorporation of indigenous peoples into our geo-political entity
is ignored, either by assuming a commonality of experience with U.S.
minorities, or by relegating it to caveats and footnotes which may
qualify an analysis without contributing to or amplifying whatever
general thesis is proposed. As a result, the science of race
relations is hard-pressed to counter contemporary policy proposals
and initiatives, or to even adequately analyze their importance.
Consider, as an example, a highly touted front-page editorial by

William Randolph Hearst, Jr. in I976:

It may have escaped the notice of many, but
enormous sums of U.S. wampum have recently
been bestowed on numerous Indian tribes for
various reasons . . . entirely forgotten in
all of the fuss is the fact that when settlers
took the land, it was generally by agreements
of some kind with the native Indians, and no
records were kept,there being no county clerk
with whom to file the deeds.

. Overlooked too, is the fact that the
original occupants of the land were the most
primitive of people who had never thought
of the wheel, had never learned to use metals,
and knew nothing of the spinning and weaving of
fibers. If the white settlers brought nothing
but those gifts and skills, they were paid
well for their land.

. . It is becoming apparent that some
non-white Americans -- though certainly not
all -- are thriving on what can only be
described as "reverse discrimination.“

. . Did we or didn't we decide that the
color of a person's skin or the source of
his ancestry didn't count? If we did decide
that color or ancestry don't count, what the
hell are we doing? (Chronicle/Examiner,

l2 December)

55
The drama of recent land settlements with Indian tribes (e.g., the
Passamaquoddies of Maine which incited Hearst), and the corporate
thirst for subterranean energy stores on tribal reservations§/ are
intimately tied to the increasing clamor for fiscal (and moral)
responsibility such as Hearst articulated in the area of Indian
affairs. But analysis of these types of issues do not readily emerge.
from the sociology of race relations which generally lacks the
sophistication to deal with historical diversity, and hence the
incorporation of indigenous peoples into a modern state system. Such
considerations are not part of the legitimate itinerary of inquiry.
Briefly, an explanation of this neglect and its legacy for the study
of indigenous peoples is proposed.

It is suggested (Lapierre, l968) that the most Widely shared
characteristic of human communities in time and space is ethnocentrism,
the narcissistic relationship to self, or the opposition of self
(ingroup) to other (outgroup). It is further proposed (Clastres,
I977) that a salient distinction between Savage and modern societies
is that the former rest content with the superiority of their ways,
while the latter -- perhaps less sure -- feel obligated to mobilize
an "objective" science that in turn endorses what we might have
suspected all along: we are better. Some aspects of Americanist
ethnology are a mire of enthnocentrism and evolutionism. Savage
societies, we are told, are encumbered in a modern world by mutations
of social structure. They are incomplete, societies without power,
without a State, and without a market. From these, a dizzying array
of deficiencies have been spawned: they lack a need to achieve, they
lack future-orientation, they lack modern worldviews, they lack

appropriate technology, etc. More recent scholarship, such as Clastres,

56
assails these assumptions, and suggests that l) Savage society may
generally lack a gg§e_of power, coercive power, opting instead for
another case of power, non-coercive power; 2) Savage society, by
maintaining absolute power over all its constituent elements, mitigates
against the rise of a central, separate power and actively opposes the
emergence of the State; and 3) Savage society, characterized by much
leisure and a subsistence economy based upon reciprocity, flourished:
the advent of political economy, i.e., the point where a people is
compelled to give up their leisure and where products of their labor
are accumulated and alienated, brought with it the destruction of many
such groups (when Indians were forced to work, they died of work).

Clastres puts it succinctly.

This is what needs to be firmly grasped:
primitive societies are not overdue embryos
of subsequent societies, social bodies whose
"normal" development was arrested by some
strange malady; they are not situated at the
commencement of a historical logic leading
straight to an end given ahead of time,

but recognized only a posteriori as our own
social system. (If history is that logic,
how is it that primitive societies still
exist?) (l68)

The shortcomings of the legacy of Americanist ethnology§/ are
amplified in many ways. For example, the preponderance of historical
accounting of American history eludes analysis of the specific terms
and outcomes of contact between European ethnic groups and indigenous
peoples. Novack (I949) points to "systematic forgetfulness," or a
memory lapse, as an attempt to hide from a painful past. The destruction

of Indian collectivism and communal democracy characterize the earliest

57

and most fundamental social transformation in America. The colonial
uprising, for all its importance in Eurocentric historical analysis,
was a far less radical social development. In the long view, this
legacy and its manifestations have become the apologetics, or as the
Valentines' (I975) might insist, the substance of the intellectual
defense of inequality and oppression.

A broadened understanding of the development of race relations
in the United States and the implications of historical experience
in the face of changing multi-racial and ethnic relations necessitates
accelerated attempts to analyze the indigenous American Indian
experience. The tenor of this experience in North America and
throughout the world emerges from the varied considerations of shared
characteristics of indigenous populations, bound to a relative milieu

within a world system.

The Civilizational Process

While indigenous social environs have literally been tpe_field
laboratories for the social sciences for many decades, efforts to
systematically construct paradigms capable of the broad inquiry which
is lacking, as suggested above, or action programs (see Chapter Four)
on behalf of indigenous populations have been recent and few in
number. This is largely due, it would seem, to a consistent focus
upon "state" ontogenesis in most development theories i.e., the
relevant social unit within which development unfolds is the political
unit (within national boundaries). Theories of societal underdevelgpment,

on the other hand, situate underdevelopment within much larger units

58
of analysis which tend to reject narrow national characteristics
for broader configurative criteria, such as modern world system,
capitalist civilization, and the like. Representative work of the
latter mode would include Wallerstein (I974, I980), Frank (I978, I979).
Kaplan (l978) and Goldfrank (I979). A relatively obscure contribution
by Darcy Ribeiro (I968, l97l) speaks most directly to the American
experience, and remains the most significant attempt to map the
historical incorporation of indigenous peoples into alien state
structures and modern societies. A review of his analysis will suggest
the context within which imposed law unfolds.

Ribeiro sets out to chart the historical processes which have
resulted in the unequal development of contemporary American societies.
He focuses on technological developments and their sociocultural
ramifications, the forces which trigger such evolutionary formations,
and their impact on affected populations groups. The basic
propositions of Ribeiro's theory of sociocultural evolution can be

schematically represented in stages:

Technological Revolutions

Civilizational Processes

By technological revolution is meant acquisition and manipulation of
a material technology such that non-marginal alterations in the

type and way of life of societies result. Ribeiro identifies eight
technological revolutions in the past ten thousand years of human

development: agricultural, urban, irrigation, metallurgical, pastoral,

59
mercantile, industrial, and thermonuclear. Insisting that
technological inventions cannot be divorced from their use and
dissemination to the whole sociocultural context, Ribeiro isolates
civilizational processes which represent major transformations
in material life among diverse peoples. In general terms,
technological revolutions result in an ever-increasing ability to
improve productive capacity and to make war. These have obvious
effects in a specific sense, that is, related directly to those
peoples who have acquired a technological invention or innovation.
General effects are also apparent, in that evolutionary sequences
have distributional impact for diverse groups of people. An expanded

schematic integrates these points:

increase in productive capacity

Technological Revolutions

increase in ability to make war

 

VI
Civilizational Processes—————e>sociocultural formations

~specific l. adaptive system
(distributional -general 2. associative system
manifestations) 3. ideological system

The civilizational processes (the sociocultural dimensions of the
effects of technological revolutions) result in sociocultural formations,
consisting of three interrelated systems: the means of producing and
reproducing the material requisites of a society (adaptive); the means

of regulating interpersonal relations (associative); and the means

60
of transcribing social experience into language, knowledge, beliefs
and values of a society (ideological). Taken together, these processes

are crux of Ribeiro's model of sociocultural evolution:

We conceive of sociocultural evolution as a
temporal pattern of alteration in the ways of
life of human groups. This alteration is created
by the impact of successive technological
revolutions (agricultural, industrial, etc.)
on specific societies, tending to transform
them from one evolutionary stage to another,
or from one sociocultural formation to
another. Sociocultural formations are
conceptual models of social life, each of
which combines a specific level of
development in productive technology with a
generic form of social regulation and with

an ideological configuration that represents
a greater or lesser degree of lucidity and
rationality. (l968: 9)

Ribeiro was not, however, content to pose a relationship between
civilizational processes and sociocultural formations which could be
interpreted to suggest a unilineal, unproblematic transition to
a higher state of human progress. The evolutionary development of
technology and its attendant sociocultural formations was frought
with conflict and sociocultural regressions. Ribeiro encapsulates
the process of sociocultural formation in the concepts evolutionary

acceleration and historical incorporation. The schematic is elaborated

 

accordingly in Figure 2. All processes follow from the larger
dynamic of sociocultural evolution: "Civilizational processes
transfigure ethnically the peoples they touch, remodeling them
through racial fusion, cultural intermingling, and economic
integration into new sociocultural formations." (I970: 404)

Evolutionary acceleration refers to the process where a people (agents),

61

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Ewumxm Fmowmopomup

Emumxm m>wumqummm
swamxm m>wuamcm

meowumscom pmczppsoo

L83 mxms op >p_pwnm cw mmamcu:_

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.m Amacmwapumcv
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wuom mmmmuoca Pecowuer P>Fu
Amucmmmv \,

owumcmpwuom Aca:o_uzpo>

 

m=o_uapo>mm Fouvmopocguwh

xpwumamo m>_uu=uoca cw wmamcu:_

cowuzpo>u chaupsoo_oom

m mcau_m

62
having acquired or mastered a new technology, are able to l) preserve
and enhance their dominant institutions and ethnic identity,
2) accelerate their development by enlisting the material (resources,
human and physical) of less developed peoples through conquest,
enslavement, colonization, and the like, and 3) expand their dominant
institutions and ethnic identity over subjugated peoples. Historical
incorporation -- which most succinctly represents the indigenous
experience in the Americas -- describes a process whereby peoples
(recipients) are adversely affected by the development of other
peoples i.e., they are incorporated into the development of others
and are thereby underdeveloped. The resulting sociocultural formations
of recipient populations bear the scars of their incorporation. First,
relative autonomy of the group is lost, that is, the group is no
longer in control of its destiny and increasingly, because its major
institutions are discredited or destroyed, the group becomes dependent
upon others to direct their destiny. Second, deculturation occurs,
whereby the ethnocentric values, ways of thinking and behaving, and
major social institutions are abandoned in the wake of domination.
Third, these traumatized cultures are redefined, not in the image
of previous values and institutions, but from a narrow range of values”
and behaviors consistent with the image which agents hold of recipients
e.g., as inferior beings. Borrowing from Sapir (I924), Ribeiro

designates these interrelated elements "spurious culturez“

Under such circumstances the original
culture falls into a state of alienation
by absorbing foreign ideas relevant not to
its own experience but to justification
of the colonial domination. (I970: 405)

63

Ribeiro utilizes an ethnic typology to describe extra-European
peoples and their impact on the unequal development in the Americas.
One group, Transplanted Peoples, is of particular importance here
because it represents the European ethnic groups who transfigured
the ethnic terrain in the territorial United States (and elsewhere:
e.g., Australia, New Zealand, South Africa). Though Transplanted
Peoples are quite diverse, they shareanumber of characteristics
which reveal succinctly the terms of historical incorporation for
indigenous Indian peoples. Foregoing an analysis of their development
as a consequence of European mercantile expansion, their "hybrid
cultural inventory" is summarized:

l) predominantly Caucasoid racial type;

2) cultural homogeneity (due in part to the relatively limited
area of origins);

3) concentration in homogenous nuclei structured into families,
they substituted themselves in place of the indigenous
population (decimation favored to absorption);

4) Re-creation of landscape (e.g., farming);

5) transplantation of major institutions from Europe to the
territorial U.S. (little combination of indigenous and
European institutions);

6) equalitarianism (democratic institutions, access to land
ownership, etc. );

7) capitalist nature of the economy;

8) modernity ("in the sense of synchronization with the ways
of life and aspirations of the societies undergoing
industrialization from which they were detached");

9) assimilation of new groups which represent varients of
a single cultural tradition -- provisional integration
of non-European groups, characterized by deculturation
(e. g., indigenous peoples, Africans); and

IQ) discrimation and segregation yield well-defined racial
minorities.

64
Factors such as these had enormous bearing on the development of relations
between indigenous peoples and European ethnic groups in the territorial
United States.

The structuring of sociocultural formations, as Ribeiro
conceptualizes them, suggests that accelerated development for some
meant certain underdevelopment for others. The law, as a sociocultural
formation, embodies this same dialectic. That law is vital to the
process of development should not be surprising: by securing requisite
material for development (i.e., land), by regulating the pitch of
ethnic relations, and by expositing the ideological apparatus conducive
for uninhibited development, law has significantly facilitated the
historical incorporation of diverse indigenous peoples. In subsequent
chapters, the penetration of law and its impact on contemporary
indigenous social environs will be explored. That portion of Americanist
ethnology which concludes that the retarded, stunted, and regressive
development of indigenous peoples vis-a-vis the "modern" world is an
endemic feature of their sociocultural institutions must be rejected
and a paradigm which locates the prerequisites of development in the
systematic underdevelopment of selective sociocultural formations,
substituted in its place. The social history of indigenous peoples
illuminates the instrumental role of the rule of law in the processes

of underdevelopment which embody it.

65

Notes

I. The following definition of indigenous peoples shall suffice:

"Indigenous populations are composed of the existing
descendants of the peoples who inhabited the present
territory of a country wholly or partially at the time
when persons of a different culture or ethnic origin
arrived there from other parts of the world, overcame
them and, by conquest, settlement or other means, reduced
them to a non-dominant or colonial condition; who today
live more in conformity with their particular social,
economic and cultural customs and traditions than with
the institutions of the country of which they now form
part, under a State structure which incorporates mainly
the national, social and cultural characteristics of
other segments of the population which are predominant."

United Nations, Economic and Social Council, Commission on
Human Rights, Subcommission on Prevention of Discrimination
and Protection of Minorities, Twenty-sixth Session, Study of
the Problem of Discrimination Against Indigenous Populations,
"Preliminary Report“ (E/CN. 4/Sub. 2/I. 566), 29 June I972,
para. 34.

2. A clear exception in the early period of the sociology of race
relations was the work of Park, whose race relations cycle was
premised on conflict: "What are properly referred to as race
relations ordinarily involve some sort of race conflict"
(I937). Further:

"Racial competition leads easily, and more or less
inevitably to racial conflict. The only sitution in which
the Oriental is able to live without prejudice is in some
occupation in which he does not come into too direct
competition with other members of the community. This
exclusion, although not always formally and legally
recognized, is enforced by the prejudices and public
opinion that racial conflict engenders.

These seem, in general, to be the inevitable tendencies
of the racial situation . . .“ (I924)

3. To say that Indian agencies are enthusiastic supporters of self-
determination and are therefore committed to Indian communal
life is to turn history and fact upon its head. Historically,
Indian agencies have regressed to "self-determination" when more
overt, direct interference (genocide, termination of tribes --
federal relationship, etc.) has failed. Self-determination
need be nothing more than pretending the dependency doesn't
exist or that treaties are void, etc. One of the most pervasive
charges of Indian agencies throughout U. S. history has been to

66

Notes (cont'd)

destroy Indian comunal life: Gordon's contention to the contrary
flies in the face of major programs (one in I962, for instance,
before Assimilation in American Life was published) designed to
debilitate Indian tribes. FUrther, Indian agencies have long
concerned themselves with general problems of discrimination

and prejudice: Indian agencies are the supreme melting-pot
strategists in U. S. history and their zeal to "Americanize"

the indigenous populations has been justified on the premise

of rotectin Indians (and others) from the naivete of an Indian
way of life. These issues aside, however, Gordon is correct in
his contention that Indian agencies have little to contribute

to a unified offensive by other social relations agencies to
promote assimilation in American society. The assumption that
they will not because Indian agenices have Indian concerns at
heart is an impoverished causal interpretation at best: the
fact that Indian agencies, despite the colossal effort, cannot
foster or force a comprehensive assimilation of Indian peoples
must rely on a more rigorous interpretive scheme than Gordon
give us.

 

 

4. Excellent reviews of the drama regarding energy resources are
provided by Steiner (I977) and Johansen and Maestas (I979).

5. H arris (l968) notes the reliance of Marx and Engels on Americanist
ethnology, particularly on the work of Morgan among tribal
peoples:

"Ancient Society was a work of supreme importance to Marx
and Engelsibecause it opened their eyes to the complexity
of primitive cultures and to the inadequacies of their own
dabbling in this area . . . The important point here is
that as far as primitive culture is concerned, Marx and
Engels bought Morgan lock, stock, and barrel. Morgan's
scheme, it tri-part periodization, its evolution from
sexual communism to monogamy, from gens to state, from
matrilineality to partilineality, became the standard
fouree of ethnological enlightenment for Marxists . . .
246

CHAPTER FOUR
DELIMITED PERSPECTIVES AND PROSPECTS: RESEARCH ON INDIGENOUS POPULATIONS

In the preceeding discussion, precepts of the sociology of
race relations and Americanist ethnology were contraposed to a
paradigm of sociocultural formation. These discrepant points of view
regarding the development or underdevelopment of indigenous peoples
perhaps delineate the boundaries of such inquiry. However,
artificially cast as polar extremes, they do not adequately represent
the thrust of policy-oriented research conducted under the auspices
of .national governments or international organizations. This
chapter digresses momentarily to review twentieth century attempts
to specifically isolate indigenous peoples as a locus of inquiry,
largely from a transnational perspective. This material will be a
prelude to subsequent discussions of international law and the
development of federal Indian law, as well as providing a substantive

basis to speak of strategic macroethnicl/ research and action programs.
The National Pattern

The paucity of international action on behalf of indigenous
peoples can be well documented (see Bennett, 1978). In part, the
lack of action is related to a lack of documentation of the contemporary
problems of indigneous people which might become the basis for

67

68
concerted action within a developing world system. Major
international organizations and their instruments have either failed
to recognize the salient features of indigenous populations beyond
their interaction with national development, or have amalgamated
and relegated these features to concern for racial and ethnic
minorities generally. The never-ending debate on the "Indian
problem" is replete with these tendencies, and in a report to the
Second Labour Conference of the American States which are Members
of the International Labour Organisation, in Havana (I939), the

ILO director combines them:

All Latin American countries have adopted a
policy of racial equality. In some countries
however, certain of the descendants of the
original inhabitants are living under tribal

or semi-tribal conditions and some Governments
have found it necessary to take special measures for
their protection and assistance. Only in

this limited sense can one speak of an

“Indian problem." Those questions which concern
principally the indigenous people not as Indians,
but because they happen to be the most backward
and oppressed section of the population, should
not be considered as part of the "Indian
problem"but rather as part of the general

social problems of the country, and they should
be dealt with rather from the angle of general
reforms than of Zition on behalf of any
particular race.

National action and study of indigenous groups in the United
States§/ generally adheres to these patterns, although there is
certainly no paucity of material purporting to review the "Indian

problem" in the U.S.:

69
Libraries of official Washington have become
crowded morgues for reports which document
that Indians are denied basic civil rights,
such as the right to counsel; that Indian
welfare payments and services are grossly
inadequate; that many Indians go hungry; that
Indian housing is a travesty -- 70% of it
substandard; that job-training programs are
insufficient, misguided and ineffective; that
the relocated Indian, far from raising his
living standards, is drowning anonymously in
the worst ghettoes of our land . . . Thousands
of recommendations are on the shelves and in
the files, probing every corner of Indian
life, every facet of Government policy. Each
calls for reorganization, shuffling of priorities,
new vistas. (Cahn and Hearne, I969)

Government sponsored research on Native Americans is largely
micro-analysis, either because it is restricted to a particular
event or tribal group, or because its scope and depth are limited by
the exigencies which call the research into being (e.g., the research
is politically expendient). For instance, research done under the
auspices of the United States Commission on Civil Rights often
focuses on specific violations of federal law (e.g., Michigan
Advisory Committee, Civil Rights and the Housing and Community
Development Act of l974;,v. 3: The Chippewa People of Sault Ste.
ngie, I976) or the impact of federal law and administration (e.g.,
United States Commission on Civil Rights, The Navajo Nation: An
Americep Colony, I975). Research directly linked to evolving
philosophies and enactment of federal Indian policy is historically
the most prevalent, such as that of the Doolittle Committee (l867),
Dawes Commission (I894), Hoover Commission (I949), Commission on
the Rights, Liberties, and Responsibilities of the American Indian
(I96l), Johnson Presidential Task Force (l966), Inter-Agency Task
Force, I973, and the like.

70

Despite the shared limitations suggested above, some government
sponsored research remains distinctive largely on the basis of their
macroscopic approaches. In this century there have been three such
studies. The first, The Problem of Indian Administration (I928) [also
known as the Meriam Report after Lewis Meriam, project director]
was executed by the Institute for Government Research, which would
later become the Brookings Institute. This study was the recipient
of substantial amounts of private funds, and involved a broad
spectrum of specialists who directed their research to the Indian
ucondition" in diverse areas such as federal policy, health, education,
economic conditions, migration, missionary activities, and law.
The recommendations, tailored to improve the Indian Service (later
known as the Bureau of Indian Affairs),were' based on survey materials
gathered from ninety-four of the one-hundred five agency jurisdictions
in twenty states. The Meriam Report was an impetus for a substantive
shift in federal Indian policy which culminated in the Indian
Reorganization Act of I934 (see Chapter Five).

A second distinctive research effort, the Indian Personality
and Administration Project, was undertaken at the University of
Chicago in l94l. Published as Personality and Government (I95I)
in its final form, it generated some twenty-five satellite publications
on elements of its findings. The research, which involved over
fifty scientists, was a series of case studies designed to assess
Indian personality and to suggest, on the basis of a composite
profite interpreted in an environmental context, how the Indian
Service could shape its policy and programs to improve Indian

welfare.

7l
_ A third and most recent study was conducted by the American
Indian Policy Review Commission (AIPRC) which was established

by joint action of Congress in I975. Their charge was straightforward:

to conduct a comprehensive review of the
historical and legal developments underlying
the Indians' unique relationship with the
federal Government in order to determine

the nature and scope of necessary revisions
in the formulation of policies and programs
for the benefit of Indians.(PL 93: 580)

The Final Report (I977) of the American Indian Policy Review
Commission is a compendium of several thousand pages of testimony
and documentation compiled in hearings conducted by eleven task
forces commissioned by the AIPRC: task force reports and special
studies are incorporated into the comprehensive report dealing with
federal trust responsibilities, tribal government, structure of
Indian affairs, jurisdiction, education, health, resource development,
urban and non-reservation Indians, law revision and codification,
terminated and non-federally recognized Indians, alcohol and drug
abuse, Bureau of Indian Affairs management, and Alaskan Native
issues.fl/

The emergent character of government sanctioned research on
Native Americans -- both micro and macro in scope -- is decidedly
insular with respect to broader spatial and temporal dimensions
of an "Indian problem." These efforts, without exception, fail
to posit generic links between indigenous groups in the territory of
the United States and indigenous groups in the Western Hemisphere
On the basis of the trajectory of Western development and its

impact on indigenous popuietions. The research of international

72
organizations has generally recognized the debilitating effects of
limiting horizons of inquiry to geo-political entities, though
their projection of the interrelatedness of macroethnic underdevelopment

and hemispheric development is variable.

The International Pattern

 

Considered in turn, research on indigenous populations by the
Organization of American States (OAS), the International Labour
Organisation (ILO), and the United Nations (UN) is considered. The
lion's share of materials on indigenous populations has been generated
by these supra-national organizationsé/ and a review of their efforts
reveals the historical development and substantive foci of these

undertakings.
Organization of American States

The preponderance of activity related to indigenous populations
in the Americas has been carried out by what would be known in I948
as the Organization of American States. The VII International
Conference of American States (Montevideo, December I933), IV Pan
American Scientific Congress (Mexico, D.F., September I935), and the
III Inter-American Conference of Education (Mexico, D.F., August I937)
all passed resolutions in the contexts of their specific topical
interests calling for a broad investigation of Indian life and problems
in the Americas.§/ Three separate resolutions of the VII International

Conference of the American States (Lima, I938) spoke directly to

73

problems of indigenous groups: resolution XI called for an improvement
of the social welfare of the American indigenous population as
reparation for the "lack of understanding" which prevailed in earlier
periods; resolution XII called attention to the special problems
of indigenous women; and resolution XIII recommended that comparative
study be undertaken of national strategies for ensuring the well-being
of indigenous groups. Further, this latter resolution encouraged
appointed delegates to establish an Inter-American Indian Institute.Z/
Resolution X of the Inter-American Indian Conference (Patzuaro,
Michoacan, Mexico, April I940) formally created the Inter-American
Indian Institute.§/

In addition to those functions relegated to the Inter-American
Indian Institute, matters related to indigenous groups continued
to surface in other OAS activities. Resolution XXIV of the II
Inter-American Conference of Agriculture (Mexico, D.F., July I942)
called for the conservation of art and culture of indigenous groups
which were vital to the welfare of these populations. The III Inter-
American Conference on Agriculture (Caracas, l945) recommended that
American countries cooperate to improve the living conditions of
rural agricultural workers, including Indians. Resolution XII of
the I Inter-American Demographic Congress (Mexico, D.F., October I943)
rejected the policy and manifestations of racial discrimination
(as unscientific); resolution XXX called for Indian autonomy, the
right of Indians to know and live their culture, and the necessity
of study in the area of Indian culture and its impact on the
development of the Americas. Articles of the OAS charter -- approved

at the IX International Conference of American States (Bogota,

74
March-May I948) -- though they do not always specifically single
out indigenous groups, espouse general rights and principles which
protect indigenous populations which are included as well in the
designated functions of affiliated groups, and in the resolutions
and charters formed or passed at the same conderance.2/ The
Inter-Cultural Council (Mexico, l95l) passed several resolutions
calling for investigation into the problems of Indians groups,
the improvement of Indian education, assistance in the progressive
integration of the Indian into national life, ethEy While hardly
exhaustive, these examples typify OAS efforts on behalf of indigenous
populations. Such activities continue to the present: a recent
instance is the Five Year Inter-American Action Plan approved by
the OAS General Assembly (LaPaz, l979)1l/

By and large the focus upon indigenous populations in the OAS
has been orchestrated most coherently through the Inter-American
Indian Institute. The member countries of the Institute (Argentina,
Bolivia, Brazil, Columbia, Costa Rica, Chile, Ecuador, El Salvador,
United States, Guatemala, Honduras, Nicaragua, Mexico, Panama,
Paraguqy, Peru, and Venezuela) contribute to the Institute's activities
and functions, which include conducting and distributing statistics
on Indian groups and their well-being in the Americas, developing
the technical base of development personnel, providing technical
cooperation and coordination to national programs of Indian affairs,
as well as various publication and documentation services. Perhaps
its most serious responsibility is to act as the Standing Committee
for the Inter-American Indian Conferences, eight of which have been

I2 .
held through l980.-—/ Several hundred conclusions and substant1ve

75
resolutions have been reached at these conferences. By necessity,
they cover an extensive range of situations, problems, and strategies
which attempt to correspond to the diversity of Indian peoples
in the Americas and the individual national programs attendant to
indigenous groups. The Inter-American Indian Institute remains

the primary locus of international activity for the American states.

International Labour Organisation

 

The involvement of the International Labour Organisation with
the issue of indigenous populations is noteworthy on two counts.
First, study and research of indigenous groups culminated in a

comprehensive survey published in I953, entitled Indigenous Peoples:

 

Livipg and Working Conditions of Aboriginal Popglations in Independent
Countries.l§/ This document has become the primary reference point
for most subsequent work in the area. Second, within the scope
of legal provisions on behalf of indigenous peoples, Convention I07,
"Convention Concerning the Protection and Integration of Indigenous
and Other Tribal and Semi-Tribal Populations in Independent Countries"l§/
is a significant statement of rights of indigenous peoples in 1
international law (see Chapter Five).

As early as I926, the ILO Governing Body called for a Committee
of Experts to draw up international standards for protection of
indigenous workers. The results were four studies by instruments
of the ILO: Forced Labour Convention (I930), Recruiting of Indigenous
Workers (I936), Contracts of Employment (Indigenous Workers)(l939),
and Penal Sanctions (Indigenous Workers) (l939).l§/

76

The decided focus of the ILO efforts regarding indigenous
groups is the Americas. There are clear exceptions: the Preparatory
Asian Regional Conference of the International Labour Organisation
(New Delhi, October-November I947)l§/ dealt with forced labor in
rural areas, plantation labor (particularly problems of laborers
of special crops), and problems of aboriginal tribes and untouchable
castes in various Asian countries. Generally, however, activities
of the various conferences of American States Members of the
International Labour Organization formed the basis for the I953
study, Ingigenous Peoples. At the Labour Conference of the American
States Which are Members of the International Labour Organisation
(Santiago, January I936) information was requested concerning the
economic and social welfare of indigenous peoples, as well as
initiation of a comparative study to suggest international action

in this regard—1]!

The Second Labour Conference of the American
States Which are Members of the International Labour Organisation
(Havana, November-December I939) called for a special study of
indigenous workers and special measures which might protect themlg/
[questionnaires were sent to Latin American governments in I940,

but replies could not be processed due to the outbreak of war ].

The Third Labour Conference of the American States Which are Members
of the International Labour Organisation (Mexico, April I946)
established "a committee of experts on social problems of the
indigenous populations of the world." Resolution No. 2l commissioned
a study to this effect.12/ The Fourth Labour Conference of American

States Members of the International Labour Organisation (Montevideo,

April l949) adopted a program of action which called for a Committee

77
of Experts on Indigenous Labour to prepare a study of such areas
as vocational training, recruitment, social security, handicrafts,
safety and health in mines, forest dwelling indigenous populations,
and the like.29/ At its Il4th Session (Geneva, March I95l) the ILO
Governing Body of the International Labour Office reviewed and
accepted the results of the Committee of Experts. Included among
the priorities for application of this so-called "La Paz program"
was publication of a special volume on the life and work of
indigenous populations in independent countries. The resulting
Indigenous Populations appeared in I953.

The "frame" of Indigenous ngulations is simply put: ". . . the

 

problem of indigenous peoples in independent countries can best

be understood in an international context." The "context," however,
affords a multinational overview of the status of indigenous peoples
without providing the basis for systemic analysis i.e., issues
pertaining to generic supranational processes that have had an
impact on indigenous peoples are not generally proposed as endemic
to the living and working conditions under study. Instead, the

loci of underdevelopment are often indigenous peoples themselves:

Nevertheless, there are features of the

problem common to all such peoples, even

when their history shows that some of them

differ from the others in that they have, in

the past, experienced periods of great economic,
social and cultural progress. The most salient

of these features are their eo raphical isolation,
cultural barriers -- especia y those of
linguistic origin -- considerable economic
backwardness by comparison with the remainder
6f7the population, the mythical concepts underlying
their social organization and ecOnomic

activities, inequality of opportunity and

the survival of anachronistic economic and

78

land tenure systems that prevent indigenous
peoples from fully developing their
production and consumption and contribute

to perpetuating their inferior social status.
(iii,emphasis added)

 

Generally, these are recurrent themes of Indigenous Peoples in its
comparative analysis of twenty-seven nations of the Americas,
Canada, Asia and Australia. There can be no dispute that it is the
most comprehensive review of indigenous peoples attempted to I953.
Its range of considerations, under the general rubrics "living
conditions" and "working conditions," include demographic
characteristics, food, housing, health (alcoholism and cocaism),
education, occupations, agrarian systems, vocational training,
handicrafts, and the various national and international measures
which affect the situations of indigenous peoples. The thrust

of this major work, as well as subsequent ILO analysis,§l/ is
broadly integrationist: I) the living and working conditions of
indigenous peoples reflect only marginal incorporation into the
social and economic life of the nations of which they form part;

2) these variable conditions are impediments to the well-being

of indigenous peoples as they are impediments to national development;‘
and 3) the common good lies in the vitality of national progress.
These points are embodied in Convention IO7 and Reconmendation 104
of the ILO (I957), major contributions to international law

regarding indigenous peoples (see Chapter Five).

79

United Nations

 

Efforts and study by the United Nations related to indigenous
populations have been sporadic and correspond to discernable
phases. The first period, l949-I965, typically involved
collaborative research with other world organizations, such as
the OAS and the ILO. During the second phase which extends to the
present, UN efforts become decidely more concerted, and global
in scope.

'General UN resolutions which deal specifically with indigenous
questions are infrequent. In I949, the General Assembly adopted
resolution 275 (III) (II May I949) which called for an investigation
of indigneous peoples of the American States. This work, to be done
under the auspices of the UN and the Inter-American Indian Institute
(OAS) was never completed, as the resolution was abandoned due to
protest of the United Stateshzg/ The following year, the Economic
and Social Council passed resolution 3l3 (XI) (24 July I950) which
offered assistance, when requested, to raise the standards of living
for indigenous peoples in the Americas (with the assistance of other
specialized agencies and nongovernment organizations). Generally,
such resolutionsgé/ are of similar ilk as the tenor of other major
world organizations. For example, the General Conference of United
Nations Educational, Scientific and Cultural Organization (UNESCO)

(Sixth Session, l95l) passed resolution 322 which is representative:

. . to undertake in collaboration with
Member States concerned, a critical
inventory of the methods and techniques
employed for facilitating the social

80

integration of groups which do not
participate fully in the life of the
national community by reason of their
ethnical or cultural characteristics or
their recent arrival in the country.

Again, the problematic is lack of integration which inhibits a full

 

measure of participation in national life.

United Nations activity has also included studies of limited
geographic areas or issues, including examinations of forms of
labor comparable to slavery,§&/ forms of servitude which prevail
among indigenous groups in Latin America,§§/ cocaism,§§/ forest-
dwelling Indians in Peru,gZ/ the Andean High Plateau,§§/ and the
like. Such activities have involved, in addition to the ILO, the
OAS, national governments, and several UN instruments such as the
United Nations Educational, Scientific and Cultural Organization,
Food and Agricultural Organization, World Health Organization,
and the United Nations International Children's Emergency Fund.

A second, recent trajectory of UN related to indigenous
populations began with an effort to specify the global significance
of racial discrimination. This comprehensive study was prompted
by a resolution of the Seventeenth Session of the Sub-Commission
on Prevention of Discrimination and Protection of Minorities in I965,
entitled "Measures to be taken for the cessation of any advocacy
of national, racial and religious hostility that constitutes an
incitement to hatred and violence, jointly or separately.Ӥ2/

The impetus of the United Nations Declaration on the Elimination

of all Forms of Discriminationigl had resulted in several limited

studies undertaken by the Sub-Commission in the areas of education,

8l
religion, political rights, mobility of nationals, rights of persons
born out of wedlock, and administration of justice.§l/ However, the
Sub-Commission voiced a need for a more comprehensive treatment of
the area of racial discrimination and recommended to the Economic
and Social Council that such a study be undertaken. Resolution I076
(XXXIX) of the Economic and Social Council (28 July I965) and
resolution 20l7 (XX) of the UN General Assembly (I November I965)
endorsed the prospect of a broad examination of racial discrimination
in the political, economic, social and cultural fields, and at the
Eighteenth Session, in resolution 8 (XVIII) in I966, Hernan Santa Cruz
was appointed Special Rapporteur for the study. The Special Study on
Racial Discrimination in the Political, Economic, Social and Cultural
Spheresgg/ was completed and examined at the Twenty-Third Session
of the Sub-Commission in I970, and was subsequently published as

Racial Discrimination during the International Year for Action to

 

Combat Racism and Racial Discrimination.§3/

Santa Cruz (on behalf of the Sub-Commission) included in his
studf&%/review of national and international measures taken on behalf
of indigenous populations. The relative size of indigenous groups
as compared to the national populations and the variable extent to
which indigenous and colonial institutions, etc. were integrated,
had bearing on the degree of discrimination experienced by indigenous
groups in nations. Though unspecified, Santa Cruz advocates development

programs as a remedy for the prevalent unequal status of indigenous

groups:

There is no doubt that the policy of racial
integration is the most appropriate way of

82
eliminating discrimination against indigenous
populations. However, every precaution must be
taken to ensure that the process of integration
is not carried out to the detriment of the
institutions and traditions of those groups and
that their cultural and historical values are
respected. (para. IO98)
No integration policy for indigenous races and
populations, whether they represent minority
groups or a majority of a country's population,
can succeed unless it is accompanied by a policy
of economic and social development aimed at
achievinga rapid and substantial rise in the
living standards of those backward populations.

No doubt this applies especially to countries
with huge indigenous populations. (para. I099)

While Santa Cruz ignores the integration of indigenous peoples into
national and world development, which is the source of their "backward"
appearance, he should be credited with recognizing the scope of the
problem, the complexity of historical and national relations with
indigenous peoples, and theinadequaqygenerally of both the existing
depository of information and research efforts focused specifically

on indigenous peoples as a supranational (macroethnic) consideration.
Santa Cruz recommended (para. IIOZ) that a comprehensive study in this
area be undertaken. On 2l May l97l, resolution l589(L) of the

Economic and Social Council authorized the Sub-Commission on Preventionl
of Discrimination and Protection of Minorities to initiate a study
of discrimination against indigenous populations.

The Study of the Problem of Discrimination Against Indigenous
Populations has been underway for'more than a decade, and its
preliminary results have not been made public.§§/ The scope of the
Study . . . includes both a comprehensive analysis of the problem

of discrimination against indigenous populations, and remedies --

83

national and international -- for eliminating such discrimination.

An obvious first task of the Sub-Commission was to define "indigenous

populations," a complex exercise which had been attempted by the ILO

in its work, Indigenous Peoples (I953). The working definition of the

 

UN Sub-Commission was largely restructured from the earlier ILO

definition, and is as follows:

Indigenous populations are composed of the
existing descendants of the peoples who
inhabited the present territory of a country
wholly or partially at the time when persons
of a different culture or ethnic origin
arrived there from other parts of the world,
overcame them and, by conquest, settlement
or other means, reduced them to a non-
dominant or colonial condition; who today
live more in conformity with their
particular social, economic and cultural
customs and traditions than with the
institutions of the country of which they
now form part, under a State structure which
incorporates mainly the national social and
cultural characteristics of other segments
of the population which are predominant. gg/

The Sub-Comission emphasized several points regarding this definition:

I)

2)

3)

4)

the study would not be concerned with who the original
inhabitants of a region were, if such information is even
knowable;

"present territory of a country" is preferred to "country"
or "nation" because in all likelihood the nation may

not have existed at the time of original contact, or an
independent community may not have constituted a "state"
as it is presently defined, or if a country did exist,

it is likely that its territory has changed;

the distinctiveness (culture or ethnic origin) of those who
colonized and conquered is emphasized to indicate that
it was not two indigenous groups in conflict;

"by other means" is to include trade and expansionist
settlement policies which resulted in "dependence on

a 'metropolitan' Power which exploited land, goods and
peoples to its own advantage;" gz/

84

5) contemporary indigenous institutions are not "original“
institutions, but have -- for a number of reasons --
changed in response to their new condition and have
incorporated elements of the dominant institutions of
a society; and

6) "indigenous," for the Study . . . designates non-dominant
groups in non—neutral state structures.

 

The study design relies upon the collection, verification, and
analysis of data from a wide variety of governments, world organizations,
(ILO, OAS) and non—governmental specialized organizations (e.g.,
Anti-Slavery Society) from which monographs will be prepared for
all member-states of the United Nations who have indigenous populations.
Modes of gathering this information include extensive questionnaires§§l
and on-site visitations. Topics to be incorporated in the study
include general demographic information, basic provisions (Constitutions
and laws) concerning indigenous populations, fundamental national
policy and administrative arrangements regarding indigenous groups,
and the provisions intended to eliminate discrimination in health
and social services, housing, education, language, employment and
vocational training, political rights, religious rights, and legal
assistance.

It appears the final document of the Study . . . will be somewhat,

 

encumbered by the persistent problems that have been encountered.

The most obvious of these are the delays in publication (several

years overdue) which threaten to render some information and usefulness
of the study obsolete. Also, the reliance upon governmental support,
which has not been forthcoming to the degree hoped for, may well
curtail the scope of some national monographs. For instance, at
various junctures of the study, more than three-quarters of the

member—states responding to the questionnaire denied having indigenous

85
39/

populations, including some Latin American countries.——- Difficulties
in operationalizing the definition of indigenous populations partly
accounts for this. However, there has been dissatisfaction with the
removal of some sensitive areas from consideration by the Sub-Commission,
such as southern Africa and the Middle East (particularly the Syrian
region of Golan, and Palestinian Arabs in Israel).397 Debates over
whom is "out" and whom is "in" have often represented thinly veiled
political agendas.

There also emerged a view, early in deliberations by the
Sub-Commission, that social scientific literature was of marginal

utility in establishing the contemporary status of indigenous

peoples:

Mr. Martinez Cobo has wisely neglected
anthropological and sociological writings,
most of which served only to confuse the
issue. It was important to bear in mind
that the question under consideration was

a very difficult, ill-defined and perilous
one, which had to do with prejudice against
peoples who were called “primitive," “savage"
and "backward" and were thought to have no
history. Such prejudices had been promoted
by science and pseudo-science, but they were
now being counteracted by a new view of
indigenous groups which recognized that

they comprised human communities which were
just as valid as other types, and not
inferior to them. 31/

The effect this might have, if indeed such writings are excluded,
will certainly be worth noting. A criticism of the International
Labour Organisation's IndigenoUs Peoples is its encyclopedic

presentation. Whether the Study of the Problem of Discrimination

86
Against Indigenous Populations is able to integrate the breadth of
information into a comprehensive overview of over two hundred million

people, distinct and yet sharing in the underside of human development,

remains to be seen.

87

Notes

I. Macroethnic is derived from macro-ethnos: "The ethnos (ethnic
groups) are the operative units of the civilizational process,
each of which corresponds to a unique human group united by
a common language and culture . . . We can speak of a national
ethnos when linguistic, cultural, and national politica
boundaries coincide, and of a macro-ethnos when such states
expand to incorporate populations of different ethnic origins . . .
[When] combined by imperialistic domination in an attempt to
amalgamate them into a larger entity, they form part of a
macro-ethnos." (Riberio, l968: l9)

 

2. Report of the Director of the International Labour Office
(Geneva; ILO, I939): 56.

3. A comparative discussion of national measures on behalf of
indigenous groups is contained in Santa Cruz (l97l): l26-l44.

4. American Indian Policy Review Commission, Report on Trust
Responsibilities and the Federal-Indian Relationship; Including
Treaty Review (Task Fbrce One), Report on Tribal Government
(Task Force Two), Report on Federal Administration and Structure
of Indian Affairs (Task Force Three), Report on Federal, State,
and Tribal Jurisdiction (Task Force Four), Report on Indian
Education (Task Force Five), Report on Indian Health (Task
Force Six), Report on Reservation and Resource Development
(Task Force Seven), Report on Urban and Non-Reservation
Indians (Task Force Eight), Repgrt on Indian Law Revision,
Consolidation and Codification, Vol. I-II (Task Force Nine)
Report on Terminated and Nonfederally Recoggized Indians
(Task Force Ten), Report on Alcohol and Drpg Abuse (Task
Force Eleven), Bureau of Indian Affairs Management Study
(Warren King and Associates, Inc.), Special Joint Task Force
Report on Alaskan Native Issues (Task Forces Two, Four, Seven)
(Washington, D.C.: Government Printing Office, I976).

 

 

 

 

 

 

 

 

5. It is clear, however, that these organizations are somewhat
removed from the orbit of the most critical and comprehensive
work currently underway regarding indigenous populations.

As an illustration, the Stichting Werkgroep Indianen Projekt,
a sponsor of the Fourth Russell Tribunal in Amsterdam in I980
(see Chapter Five) has affiliated chapters in some forty Dutch

cities. The Fourth Russell Tribunal received support from
seventeen organizations in ten Western European countr1es

devoted to research and action on behalf of indigenous
populations throughout the world.

6. Carnegie Endowment of International Peace, The International
Conferences of American States: First Supplement (Washington, D.C.:
I940).

88

Notes (cont'd)

10.

11.

12.

13.

14.

15.

16.

17.

18.

Ibid.

Pan American Union, Inter-American Specialized Conferences
(Washington, D.C.).

Carnegie Endowment for International Peace, The International
Conferences of American States: 'SeCond Sppplement (Washington, D.C.,
1958).

Pan American Union, Annals 0f the Orgepization of American

‘States, Volume IV (Washington, D.C., 1952).

Organization of American States, Resolutions of the Ninth
Regular Session of the General Assembly of the Organization
of American States (AG/Res. 422) (the Five Year Inter-American
Action Plan (AG/doc. 1102/79)).

 

/ /
I Inter-American Indian Conference (Patzcuaro, Michoacan,
Mexico, April 1940); II Inter-American Indian Conference
(Cusco, June-July 1949); III Inter-American Indian Conference
(LaPax, August 1954); IV Inter-American Indian Conference
(Guatemala City, May 1959); V Inter-American Indian Conference
(Quito, Ecuador, October l964)g'VI Inter-American Indian
Conference (Patzcuaro, Michoacan, Mexico, April 1964);
VII Inter—American Indian Conference (Brasilia, August 1912);
and VIII Inter-American Indian Conference (Merida, Yucatan,
Mexico, November 1980).

International Labour Organisation, International Labour

pyganigggion Studies and Reports, New Series, No. 35 (Geneva:

International Labour Organisation, General Conference of the
Internat1onal Labour Organisation at its Fortieth Session,
228J366 I957, Treaty Series, Vol. 328 (Geneva: ILO, 1957):

International Labour Conference, Conventions and Recommendations,
1919-1949 (Geneva, ILO 1949); and International Labour

Organisation, The International Labour Code 1951 (Geneva:

ILO, 1952).

International Labour Conference, Record of Proceedings (Geneva:
ILO, 1948).

International Labour Conference, Record of Proceedings (Geneva:
ILO, I936).

iflgerpgggnal Labour Conference, Record of Proceedims Montreal:

 

89

Notes (cont'd)

19.

20.

21.

22.

23.

24.

25.

26.

27.

28.

29.
30.

International Labour Conference, Record of Proceedings (Montreal:
ILO, I946).

 

Internatienal Labour Conference, RecOrd of PrOCeedings (Geneva:
ILO, I951 .

 

International Labour Conference, Thirty-Ninth International Labour
Conference, Report VIII (1), Living,and Working Conditions of
Indigenous Populations in Independent Countries (1956) [reprinted,
Greenwood Press, 1974].

Bennett (1978) briefly reviews this event. See also United
Nations, OffiCial Records of the Economic and Social Council,
Ninth SessiOn, 320th Meeting (Geneva: UN, 1949): 537.

There are more recent resolutions which pertain to indigenous
peoples, such as General Assembly resolution 2497 (XXIV)

(28 October 1969) which is designed to ensure that education in
countries under foreign rule is responsive to the traditions
(culture) of indigenous populations.

Reports by the Ad_Hoc Committee on Slavery to the Economic and
Social Council in 1950 and 1951: see report by the Secretary
General on the matter, Thirteenth Session of Economic and
Social Council (E/2123; E/AC.33/R.lI-I4).

See resolution 350 (XII) of Economic and Social Council
(19 March 1951).

United Nations, Narcotics Commission of the Economic and
Social Council, Report of the Commission of Enquiry on the Coca
Leaf (E/1666; E/CN.7/AC.2/l), 1950.

United Nations Educational, Scientific and Cultural Organization,-~
Informe sobre el Huallaga (Lima, Peru, Organismo coodinador
de la Hilea amazdnica peruana, 1950).

United Nations and Specialized Agencies Joint Field Mission on
Indigenous Populations. See International Labour Organisation,

'The Andean Prggremme (Geneva, 1958); also E. Beaglehole,

“A Technical Assistance Mission in the Andes," nternetignel

'Labour Review, Vol. 67 (I953): 521.

E/CN.4/882, para. 378.

Resolution 1904 (XVIII) of the General Assemby of the United
Nations, 20 November 1963.

90

Notes (cont'd)

31.

32.
33.

34.

35.

36.
37.
38.

39.

40.

United Nations, Economic and Social Council, Commission on

Human Rights, Sub-Commission on Itevention of Discrimination

and Protection of Minorities, Stpdy of Discrimination in
Education (E/CN.4/Sub.2/l8l/Rev.l), 1957; Study of Discrimination
in the Matter of Religious Rights and Practites (E/CN.4/Sub.2/200/Rev.l),
1960; Study of Discrimination in the Matter of Political Rights
(E/CN.4/Sub.2/213/Rev.l), 1962; StUdy 0f Discrimination in
Respect of the Rights of Everyone to Leave apy Country, Including
His Own, and to Return to His Country (E/CN.2/Sub.2/2207Rev. I),
1963; Study of DisCrimination Against Persons Born out of
Wedlock(E/CN.4/Sub.2/265/Rev.l), 1967; and Study on Eguality

in the Administration of Justice (E/CN.4/Sub.2/296/Rev.l):

1972 (Geneva).

E/CN.4/Sub.2/307.

 

Resolution 2646 (XXV) of the General Assembly of the United Nations,
30 November 1970.

The mechanics of the study, including general discussions of its
preparation and data, are contained in Annex I and Annex II of

the text (E/CN.4/Sub.2/307/Rev.1). The specific sections directly
relevant to examination of indigenous populations are Chapter IX,
"Measures Taken in Connexion with the Protection of Indigenous
Peoples" (E/CN.4/Sub.2/307/Add.2, para, 340-536),and Chapter XIII,
"Conclusions and Proposals" (E/CN.4/Sub.2/307/Add.5, para.
1094-1102).

Some documents, intended for limited distribution, have been
obtained. One of these is the preliminary Chapter XIII,
"Language" (E/CN.4/Sub.2/L.732) presented at the Thirty-third
Session of the Sub-Commission on Prevention of Discrimination
and Protection of Minorities, 22 July 1980.

E/CN.4/Sub.2/L.566, para. 34, 29 June 1972.
Ibid., para. 41.

For the text of the outline used for the collection of information,
the response of the United States, and a retort to the U.S.
American Indian Law Center, American Indian Law Newsletter,

Vol. 7, No. 11 (1974).

If such information specifying which countries deny heving
Tidigenoius peoples is available, it is lim1ted-d1str1bution
material and unavailable to the author.

See, for instance, the exchange between Al-Zahwi and Khalifa,
Twenty-eighth Session of the Sub-Commission on Prevention

of Discrimination and Protection of Minorities (E/CN.4/Sub.2/
SR.728, at 127) 3 September 1975.

91

Notes (cont'd)

4l. Bouhdiba, Twenty-fifth Session of the Sub-Commission on
Prevention of Discrimination and Ftotection of Minorities

(E/CN.4/Sub.2/SR.651, at 11) 24 August 1972.

CHAPTER FIVE
THE SOCIO-HISTORICAL CONTOURS OF LAW

The 1968 Indian Civil Rights Act (ICRA), or any instant of
federal Indian law, draws its significance from the historical
complexion of ethnic relations within a framework of sociocultural
development and underdevelopment. Foregoing chapters have suggested
how federal Indian law might be contextualized, within considerations
of the nature of imposed law, the process of historical incorporation,
and selected research on the contemporary problems of indigenous
populations. Chapter Five will supplement these previous discussions
by staking the enactment of the Indian Civil Rights Act to
l) the development of international law regarding indigenous
peoples, 2) federal Indian law and policy, and 3) the legislative
history of the ICRA. The intent here is not to engage in comprehensive
review of these topics: the literature in these areas is established
and does not need to be reproduced for purposes of the present
inquiry. Instead, a broad overview is sufficient to indicate the
relatedness of the Indian Civil Rights Act to national and

international deveIOpments in law pertaining to indigenous peoples.
International Law

The early period of contact between European ethnic
groups -- particularly the Spanish -- and indigenous peoples of

92

93

the Americas was characterized by the salvationist expansion of
the former and decimation of the latter. A theory of natural
slavery formed the substance of Spanish foreign policy in the
New World, that is, peoples who were by nature feeble minded and
incapable of directing their own affairs must necessarily be enslaved.
Enslavement would accomplish both the spiritual salvation of
Indian peoples, and would assist in the development of European
peoples. This latter objective, though clearly less articulated

than the former, was nonetheless codeterminantl/ The'Reduerimiento,

 

read to Indian peoples before the Spanish would begin an attack,
reviews the consequences of resisting the sacred obligation of

the colonizers:

Therefore as best we can, we ask and require
you . . . that you acknowledge the Church as
the Ruler and Superior of the whole world and
the high priest called Pope, and in his name
the King and Queen Dona Juana our lords, in
his place, as superiors and lords and kings
of these islands and this Terra-firma by
virtue of the said donation . . .

If you do so, you will do well . . .

But if you do not do this, and wickedly and
intentionally delay to do so, I certify to

you that, with the help of God, we shall
forcibly enter into your country and shall
make war against you in all ways and manners
that we can . . . we shall take you and your
wives and your children, and shall make

slaves of them, and as such shall sell and
dispose of them as their Highnesses may
command; and we shall take away your goods,
and shall do all the harm and damage that we
can, as to vassals who do not obey, and refuse
to receive their Lord, and resist and contradict
him; and we protest that the deaths and losses
which shall accrue from this are your fault,
and not that of their Highnesses, or ours,

nor of these cavaliers who come with us. g/

94
The "Indian problem" emerged as the legal questions related
to intervention in the New World were proposed. The New World

was characterized as l) terra nullius, unowned land available for

 

use and exploitation, and 2) inhabited by peoples of inferior
civilizations incapable of managing themselves. Competing

European interests, particularly those of the Spanish and Portugese,
were mediated by the pope and the Treaty of Tordesillas which
divided the New World into Spanish and Portugese enterprises.

The legal status of indigenous peoples was defined in this context.
Francisco de Vitoria,§/ advising the emperor of Spain on rights

in the New World in 1532, concluded that the mere fact of discovery
by the Spanish conveyed no title for land -- the divine rights

of the pope and emperor, and the lack of Faith and sinfulness of
the Indian peoples, notwithstanding: Indian peoples "were true
owners, both from the public and the private standpoint . . . the
discovery of them by the Spaniards had no more effect on their
property than the discovery of the Spaniards by the Indians had

on Spanish property."5/ According to Vitoria, only a just war
waged against the Indians, for violations of the natural rights

of Spaniards, would give Spain rights to title based upon conquest.
However, title and sovereign power could be attained, he said,
through treaties. The assertion of Indian title by Vitoria was
generally ascribed to in the ensuing development of international

law, and can be expressed in three conditions of treatying:

I) That both parties to the treaty are
sovereign powers;2) that the Indian tribe
has a transferable title of some sort to
the land in question; and 3) that the

95
acquisition of Indian lands could not be

left to individual colonists but must be
controlled as a governmental monopoly. §/

Such early developments, which are said to form the basis
of international law,§/ are consistently characterized as being
emancipatory (for recipients) in nature i.e., recognition of
indigenous title and the obligation to treaty with political equals
is said to have tempered the intensity of conflict between ethnic
groups. In point of fact, however, the ensuing relations between
European ethnic groups and indigenous peoples in the Americans
clearly indicated the consistent, methodical erosion of Vitoria's
ideal in the development of international law (between European
nations, and between European nations and indigenous peoples).
The continual, purposeful incursions into the sovereignty of
indigenous peoples differed in intensity at specific historical
junctures due to the uneven development of European groups and
underdevelopment of Indigenous populations: in the main, however,
a clear pattern emerges. The exposition of this pattern in U.S.
federal Indian law will be noted.

As a projection of European development, international law
has been instrumental in defining the locus of the "Indian
problem," and the modicum of behavior (variably sanctioned) of
colonizers consistent with such national development. Treatying
presupposed both the existence of a state among indigenous
peoples with whom to treaty, and a transferable title to
territory which was used, but not owned. While the dicta of

international law (e.g., e_l Vitoria) may appear satisfied during

96
some historical periods, it is crucial to delve beyond mere
appearances to propose the expediency of international law for
national development. For instance, the Swiss legal scholar
Emmerich de Vattel concluded in 1758 that the gse_of land should
have a bearing on its title. Lands, inhabited by wandering peoples
whose numbers and needs relative to the mass of area they occupied

were insignificant, can be expropriated:

We have already said, that the earth belongs
to the human race in general, and was
designed to furnish it with subsistence: if
each nation had resolved from the beginning
to appropriate to itself a vast country,
that the people might live only by hunting,
fishing, and wild fruits, our globe would
not be sufficient to maintain a tenth part
of its present inhabitants. People have not
then deviated from the views of nature in
confining the Indians within narrow limits. Z]

This rationale became important in federal Indian policy regarding
the removal, by treaty or force, of Indian tribes from the southeastern
U.S. to west of the Mississippi. This involved an issue of progress:
progress for Indians was their continued civilization as a
consolidated unit in the west, and progress for white settlers
was the resolution of land shortages in the south, and assertion
of state jurisdiction impeded by the presence of Indian tribes
over whom the federal government exercised jurisdiction in
southern states. Forceable removal was one mechanism for expediting
two disparate forms of "development."

The foregoing points are not to suggest that the total

complexion of international law is repressive regardingindigenous

97

peoples: there have been historical interludes where international
law, and national law and policy, have stymied -- if only momentarily --
the methodical underdevelopment of indigenous peoples which such
law embodies. The Indian Civil Rights Act is characterized by
such contradictory emancipatory and repressive impact. However,
in general international law projects the interests of agent-nations
concerning their development which have historically been opposed
to the interests of indigenous populations in their own autonomous
development. In the modern era, characterized by the uneven
incorporation of indigenous peoples into unevenly developed state
structures, the complexion and impact of international law is
variable. This can be illustrated from an ILO convention and
the proceedings of the Fourth Russell Tribunal.

The heart of modern international lawgl regarding indigenous
peoples is Convention IO7 (Convention Concerning the Protection
and Integration of Indigenous and Other Tribal and Semi-Tribal
Populations in Independent Countries) and the supplementary
Recommendation 104 (Recommendation Concerning the Protection
and Integration of Indigenous and Other Tribal and Semi-Tribal
Populations in Independent Countries), which were chartered by
the International Labour Organisation in 1957 (see Appendix I
for full texts).2/ The tenor of these instruments is apparent
in the continual references to the goal of integration of indigenous
peoples into national life. While the terms of integration are
to be responsive to legitimate indigenous values, behaviors,
and institutions (e.g., religion, customary law) special national

protections for indigenous groups are felt to encourage dependence

98
and ultimately to impede the development of indigenous peoples
yitpig_the dominant nation-states. The locus of responsibility
is the national government which is to plan the program of
integration, the pace of integration, and the extent of incorporation
of indigenous groups in national development. Despite hosts of
qualifications which speak to the integrity of indigenous peoples,
the ultimate consideration appears to be their assimiliation.

Article 24 is quite explicit in this regard:

The imparting of general knowledge and
skills that will help children to become
integrated into the national community
shall be an aim of primary education for
the populations concerned.

Generally, the Convention defers to national development, or rather,
seeks to establish a modicum of behavior, adjudged humanitarian,

that allows nations to deal with impediments to national development.
The provisions for expropriation of land (Article 12) are
instructive in this regard:

I. The populations concerned shall not
be removed without their free consent
from their habitual territories except
in accordance with national laws and
regulations for reasons relating to
national security, or in the interest of
national economic development or of the
health of the said populations.

2. Which in such cases removal of these
populations is necessary as an exceptional
measure, they shall be provided with lands
of quality at least equal to that of the
lands previously occupied by them, suitable
to provide for their present needs and
future development. In cases where
chances of alternative employment exist
and where the populations concerned prefer

99

to have compensation in money or in
kind, they shall be so compensated under
appropriate guarantees.

3. Persons thus removed shall be fully
compensated for any resulting loss or
injury.

These are very similar to rationales for the forced removal and
relocation of indigenous peoples in the territorial United States,
which restated from the ILO Convention, appear as follows:

-Federal Indian law is plenary; mutual consent
between the federal government and Indian
tribes is not required.

-National security interests (for protection
of colonists and settlers from Indians; for
the protection of Indians from colonists and
settlers; pacification of tribes resistent
to domination) are served by the removal and
relocation of Indian tribes and alienation of
their land irrespective of their choice.

-National economic development interests
(expansion of colonization westward;
contemporary energy development, etc.) are
served by the removal and relocation of Indian
tribes and alienation of their land (including
inability to control use of their land)
irrespective of their choice.

-Renumeration and compensation (land, royalties,
etc.) are deemed appropriate to the economic
and political status of indigenous groups
relative to the larger national political and

economic system (which is the source of their
underdevelopment).

Generally, much of the U.S. history of federal incursion into
indigenous life can be defended as within the parameters of
acceptable conduct of Convention 107. The discretionary power
of national governments is seemingly boundless, particularly

when one considers the implications of Article 28:

100
The nature and scope of the measures to be
taken to give effect to this Convention
shall be determined in a flexible manner,

having regard to the conditions characteristic
of each country.

In addition to the instruments of the ILO, there are a variety
of other international agreements and covenants which, though
not as narrowly focused upon indigenous peoples as Convention 107,
are interpreted to have direct relevance for such populations. These
may be illustrated by briefly reviewing their use in the recent
proceedings of an international tribunal.lg/

The Fourth Russell Tribunal, held in Rotterdam in November, 1980,
was assembled to consider alleged violations of rights of indigenous
peoples of the Americas. Jointly sponsored by the Stichting
Werkgroep Indianen Projekt (Amersterdam) and the Russell Peace
Foundation (London), the Tribunal considered a total of forty-five
cases representing twelve nations of the Americas. The range of
substantive concerns was very broad, including land rights,
mineral rights, genocide, ethnocide, and forced labor. The
international jury heard fourteen cases, including presentation
of witnesses, exhibits, and expert testimony. For each of these
cases, the jury issued an opinion and cited violations of
international law. Figure 3 presents, in descending order of
frequency cited by the Tribunal, the various instruments of
international law and their specific (generally summarized)
provisions applied to indigenous peoples in the Americas.

The Fourth Russell Tribunal is indicative of the recent
intensification of activities on behalf of indigenous peoples.

As noted in Chapter Four, the forthcoming Unitediations study

Figure 3

Violations of International Law

 
 

C
I It.
4:4,.”

  

lhlmul Declaration I!
lI-an [ml-ls (l94l)

  

 

Ilelsln“ TIMI kl ("75)

General Aug-Idol] lesolut Ion

(Pei-amt Sovereign
Over lawn! humanly-2)

m1

 

(Ii-valuin- m "i! 'revenllnn

 

ml rum-ml nl the ("In

of Genocide (IMO)

       

     
   
   

   
  

    

  

the
I

United Nations (hauler (I945)

 

Convention I07 (WEI)

  

l02
of discrimination against indigenous populations will be comprehensive
and may itself become the impetus for additional provisions in
international law directed to the problems of indigenous groups.
There is an apparent dissatisfaction with the underlying “integration”
theme of Convention l07, evident in the work of the Russell Tribunal,

and made most explicit in the Final ResolUtion of the International

 

Non-Governmental Organizations' Conference on Discrimination
Against Indigenous Populations. This NGO conference (1977), which
drew representatives of indigenous groups from most States of the
Americas, concluded that the instruments of international law impeded
the development of indigenous peoples by assuming that integration
into national life was a remedy to their problems, instead of a
source of unequal development.* Whether these and like activities
will contribute to a non-marginal shift in the trajectory of
international law is unclear. The tendency to view the problems
of indigenous peoples as supranational, and the increased direct
involvement of these populations in international activities on
their own behalf, are encouraging recent developments. The somber
point remains, however, that international law embodies a
historical itinerary of expansionary development. This corpus of
law, for all its attention to human rights, can only project the
substantive forces of such development which maintain a historical
continuity and which incorporate periodic, marginal interruptions
(e.g., human rights law) to mitigate the glaring contradictions of

human underdevelopment.

 

*The text of the Final Resolution, the Declaration of Principles

' for the Defense‘offthe'Indigenous'Nations‘and Peoples of the
western'Hemisphere of the NGO conference, and the Declaration

' of’Indigenous Peoples of the Fourth Russell Tribual are
attached in Appendix I.

 

103

Federal Indian Law

The development of federal Indian law and policyll/ may appear
inconsistent if not arbitrary. Major pieces of legislation seemingly
convey a favorable intent regarding relations with Indian tribes,
while other enactments clearly undermine such intent. The historical
evolution of federal Indian law (the corpus of treaties, statutes,
court cases, opinions of the Solititor, etc.) and federal policy
(expedient conduct) is guided by dynamics similar to those noted in
the previous section on international law. Federal Indian law and

policy is a series of developmental consistencies i.e., there is

 

relative continuity in the elaboration and impact of law and policy
which erodes tribal sovereignty and jurisdiction. This progressive
erosion, then, is a principle feature of the development of federal
Indian law and policy. Hence, specific laws and policies are

said to be developmental consistencies with respect to their
contribution to such eroding processes. However, the development
of federal Indian law and policy has been uneven, not unlike the
development of most sociocultural formations. A developmental
process spawns contradictions (inherent in uneven evolution) which,
if not incorporated or mitigated in some way, may curtail or
terminate development in a particular trajectory. With respect

to the development of federal Indian law and policy, the results

of such contradictions are disjunctive interludes. These interludes
in development are marginal to the extent that they only retard

the developmental process (they may slow the erosion of sovereignty):

they do not reconstruct development nor alter its course significantly.

104
While a law may appear to restore tribal sovereignty, for instance,
there is ample consistency in the subsequent elaboration of federal
Indian law and policy to overshadow a momentary retrogression.
There are few clear and absolute distinctions between developmental

and disjunctive tendencies, as the history of national development

 

and indigenous underdevelopment (which are causally linked) projects
them both in federal Indian law and policy. An overview of a subset
of major legislative acts illustrates this complexity.

Federal Indian law and policy is rooted to the development
of legal relations between European colonizers and the indigenous
peoples of the Americas. As has been noted, these developments
were uneven and differentially affected Indian populations. For
instance, by the time of the American Revolution, Spain, England,
France, Holland, and some British colonies had forged treaties or
alliances with indigenous peoples in the present territory of the
United States, regarding tribal groups as sovereign political
communities. In the central and southern Americas, however, the
Portugese and Spanish penetrated with relative impunity, seldom
constrained by considerations of the legal status of the peoples
they affected. Several factors account for such a difference.
Ribeiro (197l) notes the fundamental characteristics of European
ethnic groups and indigenous peoples which had an impact on the
form and substance of colonization. Additionally, the area of the
United States was not the reserved domain of any single European
interest (as was more the case in Spanish and Portugese territories)
and the competition between European nations (and ultimately, the
colonies) for territory, trade, etc. made friendly relations

with Indian groups imperative.

105
As perhaps the cornerstone of federal Indian law,lg/ the

Northwest Ordinance of I78713/ provided that:

The utmost good faith shall always be
observed towards the Indians; their lands
and property shall never be taken from
them without their consent; and in their
property, rights, and liberty they shall
never be invaded or disturbed, unless in
just and lawful wars authorized by Congress;
but laws founded in justice and humanity
shall, from time to time, be made, for
preventing wrongs being done to them, and
for preserving peace and friendship with
them. (Article 3)

This expression of Congressional intent is said to have guided
legislative enactments during the formative years of federal Indian
law and policy. The Trade and Intercourse Acts (1790, I793, T796,
l799, l802, 1834) which complement treatymaking, indicate various
methods of operationalizing this intent. The first of these

Acts (l790)lfl/ provided for the mandatory licensing of all those
who traded with Indian groups, invalidated all purchases of Indian
lands except those transactions governed by treaty with the United
States, and directed that all crimes committed by whites against
Indians in Indian Country be punished in the same manner as if

the crimes had occurred outside of Indian territory. This temporary
Act was amended by another in l793l§/ which incorporated several

new provisions. These prohibited settlement on Indian lands,

and empowered the President to remove such settlers, provided
regulations for horse trading and stipulated penalties for horse
thieves, prohibited Indian affairs employees from having an interest

in Indian trade, provided for the delivery of various goods and

106

services to tribes, and declared that states shall not act to
restrict the trade of Indian tribes. The temporary Act of l7961§/
added a detailed description of Indian Country,lZ/ prohibited
driving livestock onto Indian lands, required passports for travel
into Indian territory, and directed the punishment of any tribal
member who enters a state or territory jurisdiction and commits
one of several designated offenses. The Act of l799l§/ included
only minor adjustments to the Act of I796. These four temporary
acts of the l790's were incorporated into permanent legislation
in 180212}. In addition to the general outline of regulations
which preceeded it in the temporary measures, the 1802 Act provided
the President with the power to restrain the distribution of liquor
in Indian Country. Considered in toto, these five Trade and
Intercourse Acts regulated relations with Indian tribes and generally
reproduced the intent of the Northwest Ordinance of T787. They
indicate, by virtue of their specific provisions, problems regarding
interaction of indigenous peoples and settlers.

A host of factors, directly related to national development,
were to substantively shift federal law and policy as it applied
to Indians. A thirst for agricultural land, westward expansion,
and the opinions of some that interaction with whites was destroying
the autonomy (legal and cultural) of Indian tribes anyway, all
resulted in measures to effectively assimilate indigenous peoples,
or remove them to west of the Mississippi, or both. The Indian
Removal AthQ/ embodied these considerations. The Act provided
that federal lands west of the Mississippi be exchanged for Indian

lands in the eastern United States. The Act was designed to be

107
voluntary and provided that land of equal quality was to be
exchanged, and that federal protections would be extended to the
new Indian settlements. The Act was less innocuous in intent than
in practice. The "voluntary“ accession of eastern lands were often
secured through bribery of tribal officials, treaties with non-
representative tribal "leaders," etc. The results were disastrous
for many tribes: movement west brought about general deterioration
of health and many deaths, the fragmentation of some tribes (portions
stayed in the east while other portions traveled west), and general
undermining of political and social structures of tribes. These
effects appear contradictory to law,gl/ but were often consistent
with the intent of policy, in this case, to unencumber development
in the southeast and to foster westward expansion. The last of
the Trade and Intercourse Acts in 183422] echoed much of the
substance of the earlier 1802 Act which was not obsolete (e.g.,
a new definition of Indian Country reflected the treaty cession
since 1802), beefed-up the system of control over traders, relaxed
the requirement of a passport for entry into Indian Country, and
provided for extended provisions dealing with the prosecution
of crimes.

By the mid-nineteenth century, the expansion of settlement
west had accelerated significantly with the establishment of
railroads, discovery of gold, Mexican cession (1848), and the
like. Such events were to have direct bearing on law and policy
affecting indigenous peoples. Some argued that treatying had
become too burdensome for the federal government, and that the

assimilation of Indians was impeded by negotiating with them

108
as nations. Tribes were, as the argument went, increasingly
dependent. The issue of utilization of land was fodder in these
criticisms of treaty-making: “The idea of thirty or forty
thousand men owning in common what will furnish homes for five
or ten millions of American citizens, cannot be tolerated."g§/

The Appropriation Act of 187125/ ended the treaty system:

No Indian nation or tribe within the
territory of the United States shall be
acknowledged or recognized as an
independent nation, tribe, or power with
whom the United States may contract by
treaty . . .

Congress was no longer required to negotiate, but could now legislate
unilaterally to Indian tribes. This "breach“ in posture regarding
the legal status of tribes (from sovereigns to dependent wards) was
an expression of changes in objective conditions. As has been
pointed out, the balance of power -- measured in terms of military
strength (include here the loss of English, French and Spanish
Indian allies) and relative population size -- had undergone a
complete transformation since shortly after the War of 1812.

Market conditions had changed as well. Where Indians had made a
significant contribution to U.S. trade by the goods extracted from
their lands (e.g., the European fur trade), these lands and minerals
were more profitable in the direct control of non-Indians. Tribes,
once independent on lands suited for self-sufficiency, were
dependent upon federal annualties after having divested themselves
(or having been divested of) lands, and being congregated on

reservations.

109

Two statutes of the 1880's further illustrate the depreciated
value of tribal status. The much publicized decision of Ex Parte
Crow Dogg§l held that the murder of one Sioux by another Sioux on
a reservation was not within the criminal jurisdiction of any court
except of tribal determination. Congress reacted to this upholding
of tribal law and passed the Seven Major Crimes Actgé/ in 1885
which enumerated seven crimes which were to be the exclusive
jurisdiction of federal courts, regardless of whether offender and
victim were Indian.zZ/ The General Allotment Act of l887g§/
(Dawes Act) is perhaps the most significant legislation of the
nineteenth century. The chief proposals of the Act were to grant
land to tribal members (160 acres to each family head, 80 acres to
each single person over eighteen and to each orphan under eighteen,
and 40 acres to each other person under eighteen), issue a patent
in fee to each allottee to be held in trust by the federal government
for twenty-five years (land could not be sold or encumbered during
the trust period), allow a four year period for Indians to make
selections<rfland, and confer citizenship upon allottees and all
other Indians who would abandon tribal life. The intent of the
Allotment Act was to substitute white civilization for indigenous
cultures, a process, it was felt, that depended upon the transformation
of common property to individual ownership. Further, allotment was
said to provide security to Indian lands that could not be guaranteed
by the tribal organization and would, in the long run, relieve the
federal government of the burden of Indian dependence. Allotment
had a number of consequences, the most obvious of which was an

estimated alienation of 90,000,000 acres of Indian lands to whites.§2/

110

Reservations became checkerboards, with white owned land inter-
spersed with Indian owned property (making grazing, for instance,
impossible). Lands that remained after allotments
("surplus lands") were sold to the federal government who opened
them to white settlement. Lands that were not used for farming
were leased by Indian tribes, often for far below their market
value. The Burke Act of 1906§9/ gave the Secretary of Interior
power to waive the twenty-five year trust period for owners who
were judged "competent." Tribes were not required to consent to
allotment, and were not consulted. By and large, the Allotment
Act was rationalized as responsible government intervention by a
variety of pro-Indian support groups and interests (charitable
societies, religious organizations, etc.). It was also rationalized
as responsible government intervention by industrialists, and
railroad and mining interests who felt that during the processes
of removal and relocation of Indian tribes from the east, entirely
too much land had been reserved for indigenous groups relative to
their needs, and most importantly, relative to the needs of
national development.

The heightened destitution of indigenous peoples as a result
of the Allotment Act had become quite obvious by the turn of the
century. Largely in response to the deteriorated conditions of
tribes, documented in part by the Meriam Report in 1928 (see
Chapter Four), the Indian Reorganization Act was passed in l934.§l/
The Act spoke to several issues: it terminated allotment of land
on Indian reservations, prohibited transfer of Indian lands or

shares of tribal corporations (the Secretary of the Interior could

lll

authorize voluntary exchanges of lands or interests to consolidate
tribal holdings), established a revolving fund for the purpose
of economic development of incorporated tribes, allowed the tribe
to reject the Act for itself, permitted a tribe or tribes on the
same reservation to organize (adopt a constitution and bylaws),
vested certain powers and rights in a tribal council, and provided
for issuance of a charter of incorporation to tribes (oriented to
business transactions). The Act had several purposes, including
the shoring-up of tribal lands and resources, allowing tribes
more lattitude and decision-making power over their own affairs,
and "standardization" of Indian administration.§g/ The Act was
accepted by 181 tribes and rejected by 77 tribes by 1936, with
adoption of 161 constitutions and 131 corporate charter.§§/

Generally, the legal and social scientific§fll literature have
been quite supportive of the Indian Reorganization Act. There was
(is) considerable opposition to the Act, however. From one
perspective, the Act was a developmental regression. Individual,
rights of inheritance, private ownership of land, and free enterprise
were sacrificed for a policy which would return Indians to a primitive
state and frustrate assimilation efforts. The following sentiments .

are representative of this position:

Arguments advanced against the Wheeler-Howard Act
[the Indian Reorganization Act] in general, can be
summarized as follows:

1. Acceptance of the act changed the status
of the Indians from that of involuntary
wardship to voluntary wardship.

2. The act provides for continued wardship of
the Indians and gives the Secretary of the
Interior increased authority.

112

3. The act is contrary to the established
policy of the Congress of the United States
to eventually grant the full rights of
citizenship to the Indians.

4. The act provides for only one form of
government for the Indians, viz, a communal
government, with all property, real and
personal, held in common; and it compels
the Indians to live in communities
segregated from the rest of American citizens.

5. The act itself and the administration of
the act violates the rights of citizenship
which the Indians have won through long years
of efforts.

6. That the Indians prefer to be under the
jurisdiction of the laws of the respective
States where they reside.
Fundamentally the so-called Wheeler-Howard Act attempts
to set up a state or a nation within a nation which
is contrary to the intents and purposes of the
American Republic. No doubt but that the Indians
should be helped and given every assistance possible
but in no way should they be set up as a governing
power within the United States of America. They
should be permitted to have a part in their own
affairs as to government in the same way as any
domestic organization exists within a State or
Commonwealth but not to be independent or apart
therefrom. §§j

At the other end of the spectrum, the Act is criticized for the
incorporation of white values into the inner-workings of tribal
life by specifying tribal structure, reserving the right (by the
Secretary of the Interior) to approve tribal constitutions and
bylaws, vesting too much authority in created tribal councils
and none in traditional forms of leadership.and the like.

The reception of the Indian Reorganization Act is perhaps
best illustrated by the fact that one of its co-sponsors (Wheeler)
demanded as early as 1937 that the Act be repealed. It was clear

that local whites were unable to retain their power over tribes

113
as the latter organized under the Act. For some, this was an
unintentioned, unanticipated disruption of Indian "assimilation."
There was growing resentment in Congress as well with the communal
emphasis of the Act, and with the performance of the Bureau of
Indian Affairs which was said to be perpetuating the wardship
status of Indian tribes (which in turn perpetuated the Bureau).§§/
Accordingly, appropriations for Indian programs were drastically
reduced, and the Indian Reorganization Act functioned even more
poorly than it had. In 1949, the Hoover Commission recommended
that all efforts on behalf of Indian tribes be designed to ensure

their complete integration into the American mainstream. In

1953, House Concurrent Resolution 108§Z/ was passed:

That it is declared to be the sense of
Congress that, at the earliest possible
time, all of the Indian tribes and the
individual members thereof located
.within the State of California, Florida,
New York, and Texas, and all of the
following named Indian tribes and
individual members thereof, should be
freed from federal supervision and control
and from all disabilities and limitations
specifically applicable to Indians . . ..

During the following year, a Joint Subcommittee on Indian Affairs
began writing termination legislation and holding a total of
thirteen hearings on acts specific to Indian tribes.§§/ Testimony
at the hearings from Indian representatives was largely in
opposition to the legislation of termination, though sentiments
opposing tribal ownership§2/ and federal trusteeship were expressed.

Undaunted, thirteen acts were passed in an eight year period,

114

affecting 109 tribes or bands which were terminated.§9/ In general,
these Acts and the administrative plans developed specifically

for each terminated group provided that tribal lands were sold,
state legislative, judicial, and taxing authority were imposed,

all federal programs to tribes and individuals were discontinued,
and tribal sovereignty was effectively terminated. The effects

of termination were largely disastrous for Indian tribes.fil/ It
was, in the history of federal Indian law and policy, the most

overt and furthest extension of assimilationist policy.

It is clear that certain of these enactments and policies
are more favorable to Indian tribes than other enactments and
polities. A very simplistic division of legislation discussed
would group the Northwest Ordinance of 1787, Trade and Intercourse
Acts (1790-1834), and the Indian Reorganization Act of 1934 together
as either expressing or effectuating Congressional intent to (for
the most part) preserve tribal sovereignty and jurisdiction.é§/
Contraposed to these are the Indian Removal Act of 1830, the
Appropriation Act of 1871, the Seven Major Crimes Act of 1885,
and General Allotment Act of 1887, and the Termination Acts
(1954-1962).ߤ/ However, these enactments are not so easily amenable
to characterization as simply "favorable“ or "unfavorable" to
Indian tribes. The developmental "logic" of federal Indian law
and policy -- disjunctive interludes notwithstanding -- has been
erosion of tribal sovereignty and jurisdiction. This does not mean,
however, that small groups of individuals consciously plotted
incursions into tribal affairs, calculated to infirm tribal

structures, etc. Instead, the progression of national development

115
has set into motion processes which create objective conditions
that affect tribes. While humankind certainly makes its history,
no group of individuals can plot its course as surely as tribal
sovereignty has been compromised.

This examination of legislation also suggests that the narrowly
constructed legal discussions of tribal sovereignty and jurisdiction
do not capture the complexity of forces and factors which are
involved. Tribes have been subjected to a series of external
and internal pressures which variably affect tribal cultures,
institutions, legal status, etc. -- these project the relative
solvency of tribal sovereignty and jurisdiction. For instance,
there are internal pressures that erode tribal sovereignty and
jurisdiction that result from external inducements, such as
education. The history of Indian education policy clearly indicates
that during some periods, the education of Indian children by
non—Indians (either on or off-reservation) was designed to belittle
and slander tribal values, institutions, etc. This process, as
has been noted, is that of deculturation and results in a spurious
product (see discussion on historical incorporation, Chapter Three).
The diminuation of confidence in the validity, integrity, and
vitality of the tribe on the part of successive generations of
Indian children most certainly has had an impact on the sovereignty
and jurisdiction of Indian tribes. Again, while such processes
may be accelerated or given expression in complementary legislative
enactments, they do not significantly retrogress in the face of
disjunctive statutes and policy: inconsistencies, the contradictions

inherent in the evolution of such processes and forces,produces

‘116‘
them. In the larger view, it is proposed that the development
of federal Indian law reflects a generally consistent, methodical
incursion into tribal sovereignty and jurisdiction. Further, it is
proposed that the 1968 Indian Civil Rights Act embodies developmental

and disjunctive characteristics of that process.
The Indian Civil Rights Act

The "era of termination" which so dominated federal Indian
policy in the 1950's crystalized the sentiments of those who
objected to favorable treatment for Indian tribes at the expense
of other U.S. citizens. The outcomes of this period, however,
prodded a renewed examination of tribal institutions. It was
becoming apparent that terminations -- such as the Menominee and
Klamath had experienced -- were not a final solution to dependency
upon the federal government. How Indian peoples were to be assimilated
into national life was still a prevalent query, though the ill-
advised, expedient Termination Acts suggested that less radical
measures had to be taken. The courts in the late 50's struck

discordant notes in the midst of terminations. In Native American

@

 

Church v. Navajo Tribal Council the Tenth Circuit Court held that
1) it had jurisdiction to hear a case involving Indian litigants
residing on a reservation,5§/ and most importantly, 2) that the
Constitution of the United States did not apply to tribal governments.
Members of the Native American Church complained that an ordinance
of the Navajo tribe prohibiting their use and possession of peyote

as a religious sacrament violated their first amendment right as

citizens of the United States. The court argued that the Constitution

117
restricts the conduct of the federal government and the states,
but that Indian tribes are not encumbered by its provisions. In
Williams v. 52231! the Supreme Court ruled that tribes retain
jurisdiction -- except as it is limited by specific acts of
Congress -- over themselves and non-Indians on reservations. This
action held that state courts lacked jurisdiction to intervene
in the affairs of tribal members in a civil matter.ߤ/ These
opinions, supportive of the right of tribes to regulate their affairs
and adjudicate civil disputes on reservations for members and
non-members alike, did not go unnoticed. In two reportsflgl which
generally recognized some inherent problems with termination policy.
the point is made that tribal institutions and actions are largely
unresponsive to the rights (and structures which operationalize
such rights) that are applicable to other citizens. This difficulty,
they maintained, required critical examination and action.

Senator Sam Ervin, who "fathered" the Indian Civil Rights Act
and was its prime mover, initiated hearings in 1961 on the
constitutional rights of Indians. His decision to do so was not
fortuitous, and it was clear that the opinions in Native American
Churgh_and Williams, as well as the Interior, and Fund for the
Republic reports, prompted his interest. Burnett (1972) also
raises some issues concerning Ervin directly which (though they
are used or discounted as ammunition in debates concerning "intent"
of the Indian Civil Rights Act) are worth mentioning. These
points regarding Ervin may be summarized as follows:

1) his interest in Indian affairs derived from a large
Native American constituency in North Carolina;

118

2) the conflict between Constitutional guarantees and
tribal sovereignty intrigued him;

3) he could afford to be critical of the immunity of
tribes from the Constitution because of the extent
of assimilation of Native Americans into the state
structure of North Carolina; and
4) northern liberals, whose primary attention was turned
to blacks and civil rights, were easy targets for
Ervin who embarrassed them for their lack of interest
in Indian problems.
. . 59/ . . . . .
A1v1n Ziontz suggests in addition that Erv1n gained leverage for
his bill by making the point to non-southern legislators that
discrimintion against a racial minority (as he characterized the
status quo in Indian affairs) was not the sole providence of the
south.
The public hearings prior to the introduction of legislation
in 196551/ were conducted from 1961-1963 in numerous locations,
and gathered testimony and evidence from a wide spectrum of Indian
and non-Indian representatives and authorities. The transcripts
and supporting materials (e.g., 2500 questionnaires)display an
array of interests and concerns which could not possibly be
significantly addressed in omnibus legislation. In general, however,
testimony focused upon impingement and violations of "Indian
rights" (predominantly, rights of individual Indians). Sources
of abuses of discretion and power included tribal courts, tribal
councils, tribal police, state and local courts and police, and the
Bureau of Indian Affairs. It was noted that most organized tribes
did not have provisions for individual civil rights, particularly
in the area of due process e.g., few protections against self-

incrimination, prohibitions_against professional counsel in most

tribal courts, problems with jury trials, inadequate or non-existent

119

appeals procedures, and the like. The enforcement of state laws,
particularly in communities situated near reservations, was a
major source of complaint. Cited were double standards in the
application of state laws to the detriment of Indians, the
penetration of local and state police into the reservation where
they lacked jurisdiction, and the differential and prejudicial
treatment of Indians by non-Indian police and in non-Indian courts
(where Indians were often denied due process). In states that had
been granted criminal jurisdiction over Indian tribeség/ there was
general consensus that the states ignored their responsibility
to develop law enforcement programs that would afford Indians the
same protections extended to non-Indians. It was alleged that in
some areas there was no police protection on Indian reservations.
Complaints regarding abuse of power centered on the absence of
accountability. The actions of some tribal councils were unfettered
by the tribal courts, which they controlled, or by any other
agency or jurisdiction. The Bureau of Indian Affairs was assailed
on specifically this point: the activities of Bureau employees,
including police and agency directors, were said to be inconsistent,
arbitrary, and seemingly immune from review.

These and other concerns are not easily reduced, principally
because the characteristics of tribes differ sharply. For
instance, some tribes were certainly more "developed“ when assessed
against Anglo standards of court structure and procedures. The
relative size of some tribes had an effect on their power and status
in the state where they reside. The financial conditions of a

tribe were particularly telling amid allegations of denial of

\_120

due process (i.e., inability to pay a jury, or to pay judges, or

to afford appellate courts, etc.). All subsequent statutes that

Ervin proposed to address the problems enumerated in the testimony

were, however, universal and could not be responsive to the

variability of tribal conditions and structure.

Eight bills and one joint resolution were introduced by

Ervin in 1965, ostensibly as the result of the previous hearings

by his subcommittee. Each is briefly stated:§§/

S. 961

S. 962

S. 963

S. 964

S. 965

S. 966

S. 967

S. 968

Exercise of powers of self-government by an Indian
tribe is subject to the same limitations imposed upon
the federal government by the Constitution.

Criminal convictions in tribal courts can be appealed
to federal district courts, with trials de novo on
appeal.

Indian claims of violations of civil rights are to be
investigated by the Attorney General.

The Secretary of the Interior is to formulate a new
model code as a guide for tribal courts.

In the absence of exercise of state jurisdiction,
federal jurisdiction is extended to crimes committed
by non-Indians on a reservation.

Repeal of those sections of Public Law 280 which
authorize the extension of state jurisdiction without
consent of the affected tribes; tribal consent is
required for the future extension of jurisdiction;
states may retrocede from 280 status.

Federal jurisdiction is extended to the crime of
"aggravated assault."

Attorney contacts submitted to the Bureau of Indian.
Affairs for approval are automatically approved
after ninety days unless contrary action is taken
within ninety days.

S. J. Res. 40 The Secretary of the Interior is to revise,

update, and consolidate all legal materials
related to Indian law.

121
Reactions to these bills varied among the different tribes and
the Department of the Interior.§5/ The extension of the Constitution
to tribes (S. 961) was favorably received in principle by some
tribes who felt it would be consistent with their current practice,
and adamently opposed by other tribes (most notably, the Pueblos)
who sought to maintain their tradition practices. Several tribes
objected to the financial burden of federal trials (S. 962).
The federal investigation of civil rights infractions (S. 963)
was generally supported: there was apprehension voiced, however,
about disparity in interpretations of rights (an infraction for
one tribe may not be an infraction for another tribe). Similarly,
a model code (S. 964) proposal was variably received, and strongly
opposed by tribes who feared imposition of the modal code on
tribes. The bills designed to remedy jurisdictional problems
of law enforcement (S. 965, S. 966, S. 967) received scant
criticism: some felt that the option of retrogression for states
should be extended to tribes as well. The bills pertaining to
attorney contracts and the maintenance of legal materials (S. 968
and S. J. Res. 40) posed only minor difficulties for tribes.
but were unsettling -- as other bills had been -- for the
Department of Interior. Burnett (1972) succinctly characterizes

their sentiment:

Throughout the debate sparked by Senator Ervin's
proposals, the attitude of the Department of

the Interior and of the BIA remained consistent.
When vital organizational interests, such as
reputation and control, were not involved, and
when a commitment of resources were not required,
they proved to be cooperative. But when
confronted with the limitation of their

122
responsibilities or influence or when
pressed for a commitment to additional

tasks, they resisted, even if the interests
of the Indian people were compromised. (602)

By 1967, Ervin reintroduced revised legislation, S. 1843-1847
and S. J. Res. 87. In large part, these bills resembled their
tentative counterparts made in 1965 with only minor adjustments
and clarifications. S. 1843 enumerated constitutional rights
that applied to tribes (as the Interior substitute for S. 961
had specified in 1965) and limited appeals to the federal court
to habeas corpus instead of trial de novo. Proposals S. 963
(investigations of civil rights violations) and S. 965 (extension
of federal jurisdiction in absence of state jurisdiction) were
not addressed in the new legislation. After a rather fascinating
series of events, compromises, and uncertainty (detailed in
Burnette, 1972) the Ervin proposals, consolidated and attached
to H. R. 2516, were passed and became law in April, l968.§§/

Six titles of the Civil Rights Act of 1968 comprise what
is known as the Indian Civil Rights Act. Title II (see below)
is most germain to the present study. Other titles concern
a model code for tribal administration of justice (Title III),
amendments to Public Law 280 which require tribal consent for
state assumption of civil and/or criminal jurisdiction and providing
for retrogression of any or all such jurisdiction by a state
(Title IV), an amendment to the Major Crimes Act (Title V),
measures regarding contracts or agreements of legal counsel with

tribes (Title VI), and the organization and revision of legal

materials relating to Indian rights (Title VII). Title II of

123

the Civil Rights Act of 1968, "Rights of Indians,"§§/ is as

follows:

Sec. 201. For purposes of this title,

the term --

(1) "Indian tribe" means any tribe,
band, or other group of Indians subject to
the jurisdiction of the United States and
recognized as possessing powers of self-
government;

(2) “powers of self-government" means and
includes all governmental powers possessed by
an Indian tribe, executive, legislative, and
judicial, and all offices, tribes, and tribunals
by and through which they are executed,
including courts of Indian offenses; and

(3) "Indian court" means any Indian tribal
court or court of Indian offense.

Indian Rights

Sec. 202. No Indian tribe in exercising powers
of self-government shall --

(1) make or enforce any law prohibiting
the free exercise of religion, or abridging
the freedom of speech, or of the press, or the
right of the people peaceably to assemble
and to petition for a redress of grievances;

(2) violate the right of the people to be
secure in their persons, houses, papers, and
effects against unreasonable search and seizures,
nor issue warrants, but upon probable cause,
supported by oath or affirmation, and
particularly describing the place to be
searched and the person or thing to be
seized;

(3) subject any person for the same
offense to be twice put in jeopardy;

(4) compel any person in any criminal
case to be a witness against himself;

(5) take any private property for a
public use without just compensation;

(6) deny to any person in a criminal
proceeding the right to a Speedy and public
trial, to be informed of the nature and
cause of the accusation, to be confronted
with the witnesses against him, to have
compulsory process for obtaining witnesses
in his favor, and at his own expense to have
the assistance of counsel for his defense;

(7) require excessive bail, impose
excessive fines, inflict cruel and unusual
punishments, and in no event impose for
conviction of any one offense any penalty

124

or punishment greater than imprisonment for
a term of six months or a fine of $500, or
both;

(8) deny to any person within its
jurisdiction the equal protection of its laws
or deprive any person of liberty or property
without due process of law;

(9) pass any bill of attainder or ex post
facto law; or

(10) deny to any person accused of an offense
punishable by imprisonment the right, upon
request, to a trial by jury of not less than six
persons.

Habeas Corpus
Sec. 203. The privilege of the writ of habeas
corpus shall be available to any person, in
a court of the United States, to test the

legality of his detention by order of an
Indian tribe.

Title II applies only to Indian tribes and their instrumentalities
(and not to federal, state or local government, nor to individuals
and non-governmental entities) and specifically enumerates
prohibited conduct of Indian tribes:

"No Indian tribe in exercising powers of self-government

shall -- make or enforce any law prohibiting . . .

abridging . . . violate . . . issue . . . subject . . .

compel . . . take . . . deny . . . require . . .
impose . . . inflict . . . deny . . . pass . . . deny . . ..

The rights of individual members of tribes and (to the limited
degree the courts have addressed the issue) non-tribal individuals
and entities, then, derive from limitations placed upon the
exercise of tribal government. These rights, often referred to
collectively as the "Indian Bill of Rights," differ significantly

from their supposed counterparts in the U.S. Constitution:§Z/

(1.25;

l. Constitutional guarantees of the right to
bear arms (Second Amendment) and the right
to a jury trial in civil cases in federal
courts (Seventh Amendment), and prohibitions
against quartering of soldiers in private
homes (Third Amendment) and against racial
discrimination in voting (Fifteenth
Amendment) are absent in the Indian Civil
Rights Act.

2. The First Amendment language "Congress shall
make no law respecting an establishment of
religion" is not comparable to the ICRA
provision that no Indian tribe may "make
or enforce any law prohibiting the free
exercise of religion." This is significant
in the case of the Pueblos, for instance,
where a "religion" is embodied in the tribal
structure.

3. The grand jury requirement of the Fifth
Amendment is not applied to the Indian
Civil Rights Act.

4. The Sixth Amendment provision for trial
by jury for all crimes is more narrowly
constructed in the ICRA: a defendant
has a right to a jury trial ("of not
less than six persons") in all
proceedings in which the possibility of
imprisonment exists. Federal and state
courts are not required to provide jury
trials in all_cases whch may result in
imprisonment.

5. The Sixth Amendment provision of
professional counsel for indigent
defendants is to be at government
expense: The Indian Civil Rights Act
provides for representation by counsel,
but only at the defendant's expense.

6. The Indian Civil Rights Act mirrors
Constitutional prohibitions against
cruel and unusual punishments, but
limits the sentencing of defendants
by tribal courts to six months
imprisonment and limits fines to
$500 for a single offense.

An analysis of the adjudication of the Indian Civil Rights Act

will suggest further characteristics of the developmental and

126
disjunctive features of international and federal law regarding
indigenous peoples, and of the requisites of national development

and social order.

127

Notes

1. National development was foremost on the minds of early
explorers and their sponsors, and received the fullest
cooperation of the pope. See, Hans Koning, Columbus:

His Enterprise (New York: Monthly Review Press, l976), and
WilComb Washburn, Red Man's Land -- White Man's Law
(New York: Scribner, 1971).

 

2. Quoted in Washburn, Red Man's Land -- White Man's Law: 7.

3, Francisco de Vitoria, De Indis et de Iure Belli Reflections
(Washington, D. C.: Carnegie Institution, 1917).

4. Ibid.: 7, 44-45.
5. Felix Cohen, Handbook of Federal Indian Law (Washington, D.C.:

Government Printing Office, 1942): 471 See also Felix Cohen,
"Original Indian Title," 32 Minnesota Law Review 28 (1947).

 

6. A broad spectrum of legal literature e.g., Cohen (1942),
Clinebell (l978), Getches et a1. (1979), designate Europe
in the sixteenth century as the locus of development of
international law. This would appear arbitrary at best,
and ignores several centuries of development of formal,
sanctioned relations between nation-states.

7. Emmerich de Vattel, The Law of Nations;,or the Principles
of the Law of Nature, Applied to the Conduct and Affairs
of Nations and Sovereigns (Philadelphia: 'P. H. Nicklin and
T. Johnson, 1758): 158-159.

8. For discussion of the further development of international
law regarding indigenous peoples to the modern period,
see A. H. Snow, The Question of Aboriginies in the Law
and Practice of Nations (Metro Books, 1972) which was
prepared in’1918 for the Department of State for use at
the Versailles Conference; see also Gordon Bennett, Aboriginal
Rights in International Law (London: Royal Anthropological
Institute, 1978).

9. The development of Convention 107 and Recommendation 104
can be traced through International Labour Conference,
Living and Working Conditions of Indigenous Populations
ifi'Independent Countries (Geneva, 1956)FWhich has been
reprinted by Greenwood Press, 1974. This research was
subsequent to Indigenous Peoples and presented preliminary
discussions, presentation of the questionnaire, summary
of the responses of member-states, and conclusions which
formed the basis of Convention 107 and Recommendation 104.

 

128

Notes (cont'd)

10.

ll.

12.

A problematic feature of international law is sanction.
Conventions and agreements are binding upon those who

sign them, although sanctioning authorities vary from

the International Court of Justice to the review of a
particular sponsoring organization. The teeth of international
law, particularly that related to minority peoples, are
seldom bared. Convention 107, for example, has been
ratified by twenty-six member-states of the International
Labour Organisation, several of which do not have indigenous
peoples within their national territory. The jury of the
Fourth Russell Tribunal, who acknowledge they lack the power
to enforce its decisions, appeal to "human conscience

and reason alone." Further:

"With the answer to the question if a
state has violated an article or several
articles of some treaty, it is important,
viz., states are only committed to a
treaty when they have ratified it.
However, the jury sides with the

opinion of a great number of prominent
international authors on human rights,
that particularly the treaties concerning
human rights and the right of self-
determiniation of peoples are the result
of standards of justice which are already
generally accepted. Therefore the jury is of
the opinion that in those cases, that states
have not ratified a certain treaty, those
states are still committed to those
treaties on account of the so-cagled f
international customary law." e art 0
the Fourth Russell Tribunal on the Rights
of the Indians of the Americas (Amsterdam:
Workgroup Indian Project, 1980): 2.

The authority on federal Indian law has remained Cohen (1942).
The contributions of Price (1973) and Getches, Rosenfelt

and Wilkinson (1979) are within Cohen's philOSOphical
tradition and update the development of federal Indian

law and policy. Federal-tribal policy is reviewed by

Prucha (1962;, Debo (1970 , Tyler (1973), Washburn (1975),
McNickle (19 5), and the rican ndian Policy ReView

Commission (1977).

Felix Cohen, Federal Indian Law: 69. The Constitution
provided Congress with powers to conduct the relations
of the United States and Indian tribes: "to regulate
commerce with foreign Nations, and among the several
States and with Indian tribes." (Article I, Section 8,
clause 3).

129

Notes (cont'd)

13.
14.
15.
16.
17.

18.
19.
20.
21.

22.
23.
24.
25.
26.
27.

28.
29.

30.
31.

l Stat. 50.

C. 33, l Stat. 137.

l Stat. 329.

l Stat. 469.

This definition would change over the ensuing decades as
treaties redefined the Indian territory. The final
legislative attempt to indicate the boundaries of Indian
Country was in 1834 (4 Stat. 729).

C. 46, l Stat. 743.

2 Stat. 139.

4 Stat. 411.

See Cherokee v. Geor ia, 5 Pet 1 (1831), and Worcester v.

Georgia, 5 Pet 515 183 ).

4 Stat. 729.

41 Cong., 3d Sess., Congressional Globe, p. 743.

16 Stat. 566.

109 U.S. 556 (1883).

23 Stat. 385.

The complexion of criminal jurisdiction is only partly
revealed by the Seven Major Crimes Act of 1885. The General
Crimes Act (C. 53, 62 Stat. 757) and the Assimilative
Crimes Act (54 Stat. 234), and additional legislation
(e.g., those Acts incorporated into 18 USC 1153) have
defined the scope of tribal, state and federal criminal
jurisdiction.

24 Stat. 388.

Hearings on HR. 7902 Before the House Committee on Indian
Affairs, 1934 (73d Congress, 2d Sess. 16-18).

34 Stat. 182, 183.
48 Stat. 984.

130

Notes (cont'd)

32.

33.

34.

35.

36.

37.
38.

39.

40.

41.

42.

43.

For example, a goal was to limit the broad discretionary
powers of Indian agents, in order to yield a more consistent
Indian policy.

Comment, "Tribal Self-Government and the Indian Reorganization
Act of 1934," 70 Michigan Law Review: 955-74 (1972).

 

See J. B. Nash, ed., New Day for the Indians (New York:
Academy Press, 1938).

Hearing on S. 21030 Before the Committee on Indian Affairs,
H. R., 1940 (76th Cong., 3d Sess.).

Report, No. 310 of U. S. Senate, 11 June 1943 (78th Cong.,
lst Sess.).

HCR 108.

Actual termination began in 1954 and continued to 1962 for
the following groups: Menominee (68 Stat. 250), Klamath
(68 Stat. 718), Western Oregon -- 61 tribes and bands --
(68 Stat. 724), Alabama-Coushatta (69 Stat. 768), Mixed
Blood Utes (68 Stat. 868), Southern Paiute (68 Stat. 1099),
Lower Lake Rancheria (70 Stat. 58), Peoria (70 Stat. 937),
Ottawa (70 Stat. 963), Coyote Valley Racheria Act -- 37 to
38 rancherias -- (72 Stat. 619), Catawba (73 Stat. 592),
and Ponca (76 Stat. 429).

Tribal affairs e.g., communal ownership of property,do
not appear to have been beyond the scope of "unAmerican
activities“ in the era of McCarthy.

In relative terms, only 3% of federally recognized Indians
were involved. See Wilkinson and Biggs (1977).

For instance, see Felsenthal and Preloznik (1974), and
Kickingbird and Ducheneaux (1973).

To these might be added the Snyer Act of 1921 (42 Stat. 208),
the Oklahoma Indian Welfare Act of 1936 (49 Stat. 1967),

the Menominee Restoration Act of 1973 (98 Stat. 770), and

the Indian Self-Determination and Education Act of 1974

(88 Stat. 2203).

A notable addition here would be Public Law 83-280 (18 USC
1162). See Goldberg (1975) for detailed analysis; also
American Indian Policy Review Commission, Task Force Four
(1976).

131

Notes (cont'd)

44.

45.

46.

47.
48.

49.

SO.
51.

The legislative history of the Indian Civil Rights Act is
complicated, or has been complicated in voluminous accounts
within many Indian Civil Rights Act cases, and in over
fifty books, law journals, and reports. For present
purposes, a limited chronological overview is provided.

The complex issues related to congressional intent, in

as much as tiiey will be incorporated in this analysis,

are discussed in Chapter Six.

272 F.2d 131 (10th Cir., 1959). The precident for tribal
immunity from the Constitution was Talton v. Mazes, 163 U.S.
376 (1896). On petition for habeas corpus, the Supreme
Court ruled that a Cherokee convicted of murder in the
Cherokee court was not entitled to remedy of the fifth
amendment of the Constitution, as Indian tribes are
"distinct, independent, political communities" and are

not subject to the limitations of the Constitution.

The Navajo tribe, the largest in the United States, is
not organized under the 1934 Indian Reorganization Act.

358 U.S. 217 (1959).

Specifically, the dispute involved non-payment (an action
to recover) for goods purchased on credit on the reservation
from a non-Indian business concern.

Fund for the Republic, Commission on the Rights, Liberties

and Responsibilities of the American Indian (see Brophy

and Aberle, 1966); and Department of the Interior, Task
force)on Indian Affairs, A Program for Indian Citizens
1961 .

Personal correspondence, 19 June 1981.

Hearings on Constitutional Rights of American Indians

Before the Sub-Committee on Constitutional Rights of

the Senate Committee on the Judiciary, 87th Cong., lst Sess.,
pt. 1 (1961); Hearings on Constitutional Rights of American
Indians Before the Sub-Committee on Constitutional Rights of
the Senate Committee on the Judiciary, 87th Cong., lst

Sess., pt. 2 (1961); Hearings on Constitutional Rights of
American Indians Before the Sub-Committee on Constitutional
Rights of the Senate Committee on the Judiciary, 87th

Cong., 2d Sess., pt. 3 (1962); and Hearings on Constitutional
Rights of American Indians Before the Sub-Committee on
Constitutional Rights of the Senate Committee on the
Judiciary, 88th Cong., lst Sess., pt. 4 (1963).

132

Notes (cont'd)

52.

53.

54.

55.

56.
57.

The so-called "280 states" (from Public Law 83-280) such
as California.

Adapted from Donald L. Burnett, Jr., "An Historical Analysis
of the 1968 'Indian Civil Rights' Act," 9 Harvard Journal
on Legislation: 557-626 (1972).

 

Hearings on S. 961-968 and S. J. Res. 40 Before the Sub-
Committee on Constitutional Rights of the Senate Committee
of the Judiciary, 89th Cong., lst Sess. (1965).

82 Stat. 73. The legislation history of the ICRA does not
end here. The Pueblos persuaded their congressional
delegation to introduce legislation at the next Congress
that would exempt them from the Act. Ervin reopened
hearings in New Mexico (Hearings on 5.211 Before the
Subcommittee on Constitutional Rights of the Senate
Committee on the Judiciary, Blst Cong., lst Sess., 1969),
but did little pursuant to the general apprehension
concerning the impact of the ICRA. Special measures

that Ervin introduced shortly thereafter, as well as the
original exemptory bills on behalf of the Pueblos, all
quietly died in committees.

Codified at 25 USC 1301-1303.

Summarized from Gil Hall, “Civil Rights in Indian Country,"
unpublished manuscript (1979).

CHAPTER 51x
ADJUDICATION OF CIVIL RIGHTS

Preceeding chapters have suggested socio-historical concommitants
of the indigenous milieu, including developmental and disjunctive
aspects of evolving international and national law and policy
regarding indigenous peoples, and the impact of national development
on Indian tribes, specifically their spurious incorporation into
national life, and underdevelopment. The modus operandi to this
point has been macro-structural, with a decided emphasis on the logic,
consistency, and integration of macro-structural, historical elements.
The conventional wisdom (the preponderance of social scientific,
legal and historical literature) suggests otherwise: 1) the
ggdevelopment of indigenous peoples is historically aberrant within
the American experience of assimilation and integration of multiple
racial and ethic groups; 2) the unfortunate circumstances of
national development are past history, and the contemporary
isolation of Indian peoples is largely a matter of their choice;
and 3) the persistent rejection of efforts to integrate Indian
peoples in national life eminates from a) so-called traditional
values and behaviors which are bankrupt and misplaced in modern
American society, and b) a preference for continued dependency
upon the federal government as opposed to independent, creative

self-actualization. Such explication of the "Indian problem"

133

134
also contains its own logic and consistency, but selectively ignores
the development of underdevelopment, and its penetration and
manifestations in socio-cultural formations.

The intent of Chapter Six is to illustrate, by delimiting the
scope of analysis, this penetration and manifestation of under-
development in the arena of contemporary civil rights adjudication.*
An inventory of socio-legal impacts will be considered which indicate
the terms and direction of interdependence within, between, and
beyond indigenous peoples. The examination is largely descriptive
and does not, as stated previously,l/ hinge upon points of law,
but rather addresses socio-legal outcomes of conflicting interests.
Before proceeding, however, it is necessary to restate the Indian
Civil Rights Act. Thusfar, the ICRA has been characterized as a
projection of historical underdevelopment as imposed law. The
Act may also be cast within the previous discussion of human

interdependence.
Human and Civil Rights

Within natural law traditions, thg_rationa1 faculty of humankind
(which discovers and applies natural law) 0V.EE§ virtue of
humankind (which links thg_nature<yfhumenkind to th§_moral elements
of existence) made human and civil rights apparent and justified

claims. However, when the multiplicity of "rational" schemes,

 

*The federal court case files examined for this analysis are
listed in Appendix II, including a statement on the
style/format used with reference in ICRA case material.

135
the disparate interpretations of human virtue, the variable "nature'I
of humankind, and endless definitions of morality and moral conduct
are considered, the bases for questioning human rights characterizations
as absolute, self-evident, immutable, basic, inalienable, essential,
inherent, etc. human and civil rights is established. Throughout
history, rights -- so construed -- have undergone significant
transformations. Generally, the ownership of humans by humans is
not sanctified in either moral or civil codes as it once was. The
notion that natural parents have the right of absolute domination over
their children is being assailed by both the ascendency of children's
rights and the broadening of states' rights of penetration into
the family.§/ It is therefore unlikely that empirical discovery
will yield thg_formulation of rights. It is from the arena of
political and social action, however, that the nature and existence
of a set of rights or institutions which orchestrate human conduct
at a particular point in time emerges.

A review of national, transnational (application to disparate
economic and socialsystems), and transcultural (application to
disparate value systems) civil and human rights policies and law,
reveals some common assumptions, among them notions that civil and
human rights are 1) general principles which reflect general
properties and relations; 2) universal in application; and 3)
inherent rights. However, these points cannot be the necessary
and sufficient parameters of an impact assessment, for even a
cursory overview of civil and human rights formulas reveals that
1) their imbued "naturalness" is dependent upon dominant

conceptions of human orderliness; 2) non-dominant cultural patterns,

136

ideological persuations and goals, etc., both intranational and
transnational, undermine even the possibility of universal compliance;
and 3) despite their utilization as the natural, logical and
apparent bases of ordering conflicting claims to justice, they
reflect little of -- and actually mitigate against -- alternative
formulations of human institutions. The range of these
qualifications is fully applicable to the Indian Civil Rights Act.

In general, the ICRA enumerates rules for making rules.
Legislative and judicial use of these rules (as prescriptions of
civil rights) may result in the creation, change, or sanctioning
of institutional structures. The intent of formulations like the
ICRA is to affect a substantive change in performance;§/ in this
case, to limit the actions of tribal self-governance and to alter
remedies for individual tribal members in a tribal setting. At one
level, the ICRA does not appear to be an institutional alternative
in the context of what we know to be a series of attempts to give
expression to broad guarantees of individual rights (beginning with
the first amendments to the Constitution).fl/ While the ICRA
has its distinctive featuresél (such as its specific designation
of a segment of the population, "Indians") it might be concluded
that the Act is simply a variation on an existing theme and policy,
and that lack of systematic (universal) success of prior legislation
is the basis of intensification of civil rights legislation --
hence, the ICRA. Within a tribal setting, however, the possibilities
for institutional change are not easily dismissed. While the
Act pursues a general theme_of federal Indian law, namely, federal

incursion into the affairs of tribal governments, its outcomes

137
appear to go beyond diminuations in tribal sovereignty and
jurisdiction, to the regulation of a wide arc of human
interdependence. Unaccustomed to viewing civil rights as a form

of regulation (and not as moral, etc. requisites), their

 

repressive dimension may be particularly difficult to grasp.

Human interdependence is shaped by the arrangement of rights
within institutions which delineate who can avail themselves of
opportunities, and whose choices are to be encumbered by the
exercise of rights by others. Generally, civil rights are viewed
as epiphenomenal to the regulation of human interdependence, as
a consequence of either their specific protection of individual
or group interests which are held sacred and seldomed questioned
(i.e., civil rights as emancipatory), or because civil rights
are perceived as inevitable outcomes (tradition, custom, i.e.,
unreflective habituation) of human consociation which are seldomed
questioned despite the possibility that such rights may ppt_best
serve the valued interests, and may only restrict opportunities.
It is not enough to defend civil rights as the necessary guarantee
of both individuals' rights in society and a modicum of social
order, without specifying Epipp individuals and pflp§g_interests
are protected, and ppp§g_definition of social order is to count.
These are choices from a range of possibilities whose "integrity"
is intimately related to whichever interests and values prevail.
The ICRA establishes opportunity sets (for Indians and some
non-Indians alike) from which individuals and corporate bodies
(tribes, municipalities, businesses, etc.) choose courses of
action. Stated baldly, civil rights protect some interests at the

expense of other interests, and as sanctioned claims, regulate

138
the opportunity structure within which human interdependence
takes its course. The conflict over the ascendency of rights
(i.e., how interdependence is to be ordered) is no less generic

to the discussion of the Indian Civil Rights Act.

Civil Rights Litigation

Several preliminary points warrant consideration prior to
examination of ICRA cases. The first of these deals generally
with the ipdistinctiveness of court cases decided, court cases
in the process of litigation, and court cases which have -- for
any number of reasons -- been terminated during the course of
litigation. Adjudication shall refer to the process of litigation,
irrespective of whether a Court decision has been rendered. A
case. represents a formalized statementcrfconflict, and can
represent a class or category of conflict. Litigation may occur
when a "critical mass" of conflict is reached, and when the instant
case of conflict is felt to be adequately tailored to the
requisites of the federal court (e.g., the issues of conflict are
germain to federal court subject matter jurisdiction). An impetus
of formal litigation may also be the appearance of a new remedy,
either due to enactment of new legislation, or due to ongoing
judicial interpretation of law which suggests alternative avenues
of remedy. The ICRA was a new remedy in both of these respects.
Another factor which blurs the distinctions between decided cases
and those yet undecided by the courts is their shared element of

risk. Litigation embodies costs, the least of which appear to be

139
related to attorney and court fees.§/ The most apparent and immediate
cost hinges upon the pi§k_that an act or activity will be
specifically prescribed or proscribed i.e., the status quo, under
scrutiny of the courts, may be changed. This risk factor is
operative whether a final court determination is forthcoming or
not.

A second preliminary note is related to constraints on generalizing
from the data. The intent of the review of ICRA cases is not to
judge the adequacy of remedy, but to survey the litigation and
areas of conflict which it embodies, and relate these to competing
interests within the context of tribal sovereignty. The analysis
cannot be reduced to a series of frequencies drawing from a decade
of adjudication of the Indian Civil Rights Act. This is largely
due to the absence of representitiveness. As noted previously,

ICRA cases do not reveal the conflict which is avoided or solved
because of the pppggp_of sanction in federal courts: this could
include adjudicated conflict in tribal courts. In addition,
frequencies constructed from federal court litigations are applicable
only to the limited arena of federal court litigation. A
hypothetical example makes this point clear. In one instance, a
federal court decision, which is specific enough, and of such merit
and weight, precludes one hundred similar instances of conflict
from seeking a federal remedy i.e., conflicting interest groups
view the single adjudicated case as an accurate measure of their
odds in federal court. The risk is unreasonable for a particular
interest. In another instance, one hundred (gppp_and gygpy)

occurances of a type or class of conflict are adjudicated in

140
federal court. No single federal court decision has been so
specific, meritorious or weighty so as to preclude the frequency
of federal litigation i.e., competing interest groups view the
disparities in decisions of adjudicated cases as accurate measures
of their odds in federal courts. The risks appear evenly shared
among litigants. To proceed with a frequency analysis, therefore,
means citing the single case within its category of type of conflict
with a frequency of one, and citing the one hundred cases within
their category of type of conflict with a frequency ofone hundred.
The hypothetical reveals, however, that the frequency of conflict
(irrespective of whether it receives final adjudication in federal
court) is equal. Accordingly, the relevance of frequencies is quite
limited in this analysis.

A third consideration is the utility of a strict legalistic
interpretation of ICRA cases in the present analysis. Such
interpretation relies solely upon legal precidents (the decisions
of federal courts) to construct the legal impact, or the status and
interpretation of a legislative enactment. For present purposes,
given the attempt in previous chapters to view law generally, and
federal Indian law and policy specifically, as a response or reflex
of evolutionary acceleration and historical incorporation, the
adequacy of a legalistic approach is insufficient. This is not
to suggest, however, that it is irrelevant. It would be ludicrous,
for instance, to ignore the points of law in the Santa Clara Pueblo
v. Martinez (001565) decision of 1978 which in every respect are
specific, and of sufficient merit and weight (a U.S. Supreme Court

decision) to preclude the adjudication of entire categories of

141
conflict in federal courts. Gil Hall (1979) provides an excellent
and succinct review of ICRA case lawZ/ which is generally within
the strict legalistic approach. His conclusions indicate the
development of substantive points of law in pre-Martinez cases.
For instance, the majority of ICRA cases turned on specific elements
of tribal self-government, including membership and enrollment
procedures, eligibility criteria for voting in tribal elections
and candidacy for elective office, apportionment of voting
districts, and conduct of elected and appointed tribal officials.
Property interests, of tribal members and non-members, were examined
on a number of procedural grounds (largely administrative) felt to
be affected by the ICRA. A much smaller number of cases involved
criminal issues and the habeas corpus provision of the Act. In
finding generally that tribes were no longer protected by sovereign
immunity from suits by members and non-members due to specific
Congressional intent (the ICRA), the courts promulgated standards
applicable to tribes in the conduct of self-governance. These
included requirements of due process in the administrative and
judicial conduct of tribal affairs (affecting members and non-members),
and consistent (and reasonable) application of enrollment, membership,”
and voting criteria. These standards, however, were largely tempered
by considerations of tribal custom and culture. Hence, some distinction
between Indians (blood quantum) that had bearing on enrollment and
membership were allowed to stand, as were differences in the
treatment accorded to members and non-members. Customary inter-
pretations of tribal rules and regulations (and practice) were
weighted favorably to tribes: however, lacking these, tribal

structures which mirrored Anglo counterparts (e.g., tribal court

l42

structures) were expected to apply tribal rules and regulations
in a manner consistent with the expected conduct of like instruments
in the larger society. A buffer between the status quo conduct
of tribal governance and asserted ICRA rights was the general
requirement of exhaustion of tribal administrative and judicial
remedies pripp_to federal court intervention.§/

Such an overview is instructive in its own right, and reveals
a dimension of legal impact of the Indian Civil Rights Act. It
does not readily disclose, however, the particulate social impact
of a legislative enactment and its interpretation in federal courts.
To this end, the substance of ICRA cases is nominally divided into
considerations of litigant interests, boundary conditions,
perceptions of legitimate authority, and interests-at-risk, which

when viewed as an interrelated whole, reveal socio-legal impact.

ICRA Litigation

 

It is difficult, if not altogether meaningless, to characterize
ICRA litigation in neat, circumscribed categories. The range of
issues and conflicts seeking federal remedy was very broad, and in
instances where cases appear to be similar in most respects, further
scrutiny reveals discernable contrasts. These would include
differences in tribes -- historical development, degree of federal
dependency, development of tribal court systems, etc. -- which were
variably considered by the courts. It is reasonable to suggest
that the initial decade of adjudication of the ICRA was sufficiently

complex to warrant the proliferation of appeals to federal intervention.

143
The deliberations and decisions of federal courts had limited
application and would not, until the Martinez decision in 1978,
be of sufficient breadth to indicate (or rather, to ultimately
establish) federal intent regarding the application of ICRA to

Indian tribes.

Litigant Interests

The majority of ICRA litigation involved strictly intratribal
disputes: a) the issues presented to the federal courts for
adjudication were related to elements or aspects of tribal self-
governance, and b) litigants were tribal members (individual members
or tribal entities). This latter point requires clarification.

More than one-half of ICRA cases were complaints brought by an
individual tribal member(s) against the "tribe." These individuals,
often attempting to represent a class of tribal members, represented
many different interests of the tribe. Many were aggrieved political
candidates or voters, some were convicted criminals (in tribal courts),
some were tribal employees, and the like. The "tribe," defendant

in over three-quarters of the federal cases, included the various
instruments of tribal government, such as the tribal council, election
boards, business committees, tribal courts, tribal judges, jailers,
and tribal police. In addition, various instruments of the federal
government (Secretary of the Interior, Bureau agency directors, etc.)
were named in suits along with tribes. For instance, litigation
testing the power or effect of a tribal ordinance would include

the Secretary of the Interior where a tribe, organized under the

144
Indian Reorganization Act of 1934, had received the Secretary's
approval for amendments to a tribal constitution.2/ Similarly,
in controversies regarding the conduct of tribal police, the
Bureau of Indian Affairs (BIA) might be a defendant, as in many
tribes police are employess of the BIA. Complaints against
tribal instruments, which specify a limited number of members who
hold elective or appointed positions, have on occasion included
a broader spectrum of tribal members. For example, in Lefthand v.
Crow Tribal Council (001089), an action brought by an individual
alleging procedural irregularities in the conduct of the Executive
Committee, and in Stands Over Bull v. Bureau of Indian Affairs
(003665), an action brought by an impeached tribal chairman alleging
violation of due process, the Crow Tribal Council was a defendant.
The Crow Tribal Council consists of the gpgipg adult membership
of the tribe (males 21 years and older; females 18 years and older),
hence the legislative body of the tribe is not so narrowly constructed
as was the case in most ICRA litigation. The various and competing
interests of tribes and tribal members projected in federal courts,
due to the preponderance of intratribal ICRA controversies, will
be threaded thrdughout the ensuing discussion. A sample category,
political disputes, canindicate the contours of some intratribal
conflict.

Controversies regarding tribal membership and enrollment
criteria and procedures, and tribal elections (voting eligibility,
apportionment, certification of election, candidacy for tribal
office, etc.) constitute the lion's share of ICRA litigation.

These are properly boUndary disputes, involving various aspects

145
of participation in tribal life, such as membership in a tribe,
and political enfranchisement. While these will be discussed
elsewhere as boundary issues, they often project political interests
within a tribe. In Merchand v. Nicholson (001206) a former member
of the Colville Business Council alleged she was ousted because
of a change of political views. The background of the dispute is

described:

In 1959 a political bloc was formed on the
Colville Business Council to liquidate

the Reservation by termination of federal
status. Termination in federal Indian law
means liquidation of a reservation by sale
and distribution of proceeds to individual
members. The Colville Reservation has been
valued at between $30,000,000.00 and
$1,000,000,000.00.

Since 1959 the pro-termination and anti-
termination factions on the Colville
Business Council have been engaged in a life
and death struggle over the future of the
Reservation. Positions of the two factions
have hardened, and shortly after the last
council election of May 9, 1970, the political
position of each faction became one of no
compromise. Uniform bloc voting resulted
even on matters not connected with the
termination issue . . .

As a result of plaintiff Thelma Marchand's
change of political views defendants
conspired to seize control of the Colville

Business Council by ousting plaintiff
Thelma Merchand from the Council. 19]

In another case, twenty-eight plaintiffs, Indian residents of the
Pine Pidge Indian Reservation, brought action against twenty officers
and employees of the_Oglala Sioux Tribe alleging that election
irregularities (fraudulent and criminal acts) deprived them of

their vote, and of the opportunity for newly elected officials

146
to take office [Mg§p§_v..Wilggg,(002567)1. This controversy at Pine
Ridge was but a single manifestation of an ongoing political
struggle between an entrenched leadership and tribal factions which
to various degrees, were supporting activities of the American Indian
Movement on the reservation. In Oglala SiouxCivil Rights Organization
v. Wfllgpp_(002002) plaintiffs allege that tribal President Wilson
had organized a private police force, a "goon squad" to carry
out a program to "terrorize, harrass, intimidate, assault, threaten"ll/
members who support the American Indian Movement, and intimidate and
prevent members' attorneys from access to their clients. Additionally,
Wilson and other tribal officials were accused of enforcing a
prohibition against public meetings on the Pine Ridge Reservation,
tampering with official court documents, and providing erroneous
police and court records on the plaintiffs to extra-tribal law
enforcement jurisdictions. Exerpts from a tribal newsletter

establish the purported rationale:

The time has come for all good citizens

of the Pine Ridge Reservation, to lay aside
their petty differences and squabbles and
unite. Unite against the American

Indian Movement and their planned takeover
of our Reservation.

What has happened at Wounded Knee, is all

part of a long range plan of the Communist
Party. First, they divide the people, get
them to fight among themselves: Hasapa
against wasieu, lakota against wasieu,

iyeska against lakota, father against son,
mother against daughter or religion against
religion. Disrupt the normal function of
society. Demand the removal of key officials.
Demand the resignation of Heads of State,

and so you see the jigsaw puzzle begins to fall
in place.

147

To combat this unpleasant nuisance we are
confronted with Oglalas, we are organizing
an all out volunteer Army of Oglalas Sioux
Patriots . . . There is no doubt that Wounded
Knew is a major communist thrust. They

have established a beach head. Now it is

up to us to Get Them Out. We will organize
and train while the Fed. Gov. is negotiating
with them. And when the Fed. Gov. has
yielded, conceded, appeared and just short
of surrender, we will march into Wounded
Knee and Kill Tokas, waticus, hasapas and
spiolas. They want to be martyrs? We will
make it another Little Big Horn and any one
of their beatnik friends can be a stand-in
for Yellow Hair. 1;]

Similarly, in Rosebud Sioux Tribe v. Drivipg,Hawk (002901), the Sioux

 

Tribal Election Board brought a complaint against tribal individuals
to prevent them from interfering with performance of official duties.
The defendants, claiming to be duly (and newly) elected, countersued
and alleged that the actions of the election board in refusing to
certify an election were motivated by the defeat of incumbent tribal
officials. Specific allegations from the litany of defendants'

claims against incumbent officials included:

2. Ordered the credit and loans to the
Driving Hawk [defendant] supporters from
the tribe to be-terminated called in
and withdrawn.

3. Robert Burnette [President of the Rosebud
Sioux Tribe] changed the payroll deduction
credit plan of Driving Hawk supporters
to prevent monthly installment payments
on cars to be deducted from tribal employees
wages and paid to Mr. Driving Hawk's car
sales business.

. 4. Secured a Restraining Order by one of his
[Robert Burnette] supporters in Tribal
Court restraining Ed Driving Hawk, doing

148

business as Oyate Sales [car dealership]
from doing business on the reservation.

ll. Fired approximately 130 of the employees

of the CETA Program, who were mostly
Ed Driving Hawk supporters. 13]

Similar cases which involve political factionalism include White
v. Tribal CouncilL Red Lake Band of Chippewa Indians (003376),

an action of a "defeated" tribal chairman, Colombe v. Rosebud Sioux

 

Igipg_(002816), an action of a disqualified council representative,

and Stands Over Bull v. Bureau of Indian Affairs (003665), an action

 

by an impeached tribal chairman. In Rank v. Crow Creek Sioux Tribe

 

(003535), the district court judge'slfi/ Memorandum Opinion begins

with an appraisal of like controversies:

This lawsuit presents the Court with a situation
with which it has, of necessity, become all too
familiar; i.e., political controversies of the
Crow Creek Sioux Tribe are reduced to legal
questions of allegedly constitutional
significance and presented to the federal court
for resolution. 15]

While the above are perhaps most blantant, the "political" nature
of intratribal disputes is a recurrent theme (see Chapter Seven).
The bounds of tribal disputes are broadened in litigation

involving non-members and non-member entities, though such disputes
generally revolve around the exercise of tribal governance. There
have been, for example, several instances where Indian non-members
of tribes have pursued actions against tribes. These cases involve
membership and the attendant rights of membership. In Mark0vich v.

The Puyallup Indian Tribe (003001) individuals with between 1/8 and

149
1/32 Indian blood alleged denial of due process when, in 1938, they
were not included on the membership roll that is currently used to
grant Indian fishing permits under treaty provisions. In Thompson
v. Tonasket (001499) a gigenfranchised Indian sought federal remedy
from the action of the Colville Business Council which struck her
from membership rolls, alleging that she had lost her American
citizenship when voting in a foreign election in Canada.) In
Standing Rock v. Chippewa Cree Tribe (003596), an action to re-enroll
a former member, and in Williams v. Chippewa Cree Tribe (003536),
an action to enroll a new member, claims to annualty payments, and
allotments of tribal lands (concommitants of membership in the
Chippewa Cree Tribe) were made by the plantiffs.

Several actions have been brought by non-Indian corporations
affected by tribal decisions. In Wg§§9p_v.'§ppy_(001015), a
nonprofit legal aid corporation, funded by the Office of Economic
Opportunity and located on the Zuni Reservation, sued the Pueblo of
Zuni because of alleged harrassment of public defenders, and
exclusion from the Tribal Administration Building which amounted
to "a denial of effective assistance of counsel to plantiff's
present and potential c1ients."l§/ Several for-profit corporations
involved in ICRA litigation are energy related. In Olympic Pipe
Line Company v. Swinomish Tribal Comnunity (003076), plaintiffs

 

sought to prevent the tribe from blocking and removing pipelines
from tideland property on the reservation. Non-Indian leasees

who produced oil and gas on the Jicarilla Apache Reservation brought
action in federal court against the Jicarilla Apache Tribe [Merrion
v. Jicarilla Apache Tribe; Ancca v. Jacariiia Apache Tribe'

150
(consolidated: 003553)] which is pending before the current
session of the U.S. Supreme Court. The plaintiffs allege that
enforcement of a tribal gas and oil severance tax is contrary to
terms of leases approved by the Secretary of the Interior prior

to enactment of the tax. In Lake v. Peabody;Coal (001492) tribal

 

individualle/ alleged they were due compensation for use of their

property. The plaintiffs prevail:

Under Peabody's lease with the Navajo
Tribe, it (Peabody) agreed to compensate
all tribal licensees and surface owners

for all damage to or destruction of any

or all their property. Thus, it appears
Peabody assumed a tribal authority or
function, to-wit: the payment of just
compensation for property rights of tribal
members affected by Peabody's operations
under its lease with the Navajo Tribe. 18]

There are additional permutations of plaintiffs and defendants
which, though statistically insignificant, indicate some of the
variable impact of the ICRA. For instance, in Plummer v. gppg§_
(001070), individual tribal members brought action against the
Bureau of Revenue of the State of New Mexico and alleged that
collection of state tax from tribal members living within the
exterior boundaries of the Reservation (Navajo) who derived their
incomes wholly from sources within the Reservation violated the
ICRA [section 1322 requires consent of tribes prior to state
assumption of civil jurisdiction.] An intertribal dispute, I§g_v.
The Hopi Tribe (002882) involved the jurisdiction of the Hopi tribe
over Navajo individuals living on lands which were once contested

between the Navajo and Hopi tribes. A case of federal intervention

151
is United States of America v. San Carlos Apache Tribe (002367),

 

 

an action where the plaintiff sought remedy to prevent a tribal
election because the defendant tribe lacked election ordinances
and administrative procedures consistent with ICRA provisions.

The interests of outside litigants in tribal conduct are at
once apparent, if one chooses to focus specifically on the issue
at hand. Hence non-members who own or lease land on Indian
reservations are intent upon preserving property rights -- including
use rights -- in the wake of or in anticipation of a tribal
action. Non-members who seek recognition as tribal members assert
their interest in birthrights, usually including annualties, land
allotments, or other rights (e.g., fishing permits) which membership
confers. Non-member employees and corporations may insist on
general due process (adequate notice, impartial hearings, etc.)
when tribal action alters the terms and conditions of their
employment or business affairs. Similarly, non-members who
practise before tribal courts or who are litigants in tribal
courts have an interest in the conduct of tribal courts (e.g., do
they conform to familiar and expected court structure and
procedures?) which in turn is to affect a personal interest in
defending a client, or in the issue when prompts the litigation.
Occasionally, much broader interests are specified. These might
result from the complexity of conflict in a particular case. For

instance, Settler, A. v. Lameer and Settler,,M. v. Yakima Tribal

 

Court (consolidated: 001213) details a controversy involving
the criminal jurisdiction of the Yakima Tribe over members'
activities off the Yakima Reservation. Tribal members, the

plaintiffs, were arrested by tribal police for fishing during the

152
closed season at a location approximately sixty miles beyond the
reservation, but in a "usual and accustomed" fishing station. The
case is unusually complicated due to the jurisdictional disputes
between the tribe, the state, and the federal government (BIA)
over fishing regulations, as well as the protracted conflict between
the State of Washington and various Indian tribes in the state over
treaty fishing rights. In the Settler cases, the State of Washington
argued that BIA approved laws and criminal sanctions related to
fishing of the Yakima Tribe authorized Indians to fish in violation
of State of Washington laws. The state's interest, in addition to

their jurisdiction stake, is represented to include the following:

The decision reached in this case will have
a significant and far-reaching effect upon
the state's ability to conserve, protect,
and perpetuate the anadromous fishery
resource for the benefit of all citizens.
Fish and game laws . . . and regulations
promulgated thereunder . . . are designed

to accomplish the goals of conservation of
these valuable resources. 12/

The federal interest is similarly stated, except for the proviso
that the Yakima Tribe should determine how fishing rights are to
be shared and exercised among its members. The Yakima Tribe
stipulated its interest in the protection of treaty rights (again,
partially a jurisdictional issue) to fish at designated places,
and its interest in the protection of the resource (apg_the right
to fish) for Yakima Indians yet unborn. The tribe argued that
State of Washington law, regulations and enforcement were too lax,

and the State was not interested in protecting Indian fishing rights

153
pp the fishery: "A hiatus in enforcement exists in the State of
Washington. The conflict is real and is harming all parties concerned."§9/
The opinion of the court notes: "Cooperation between state, local
and Tribal officials is encouraged. Ultimately, effective regulation
of the fishing resource is of benefit to both Indian and non-Indian."gl/
These disparate definitions of the "public good? involved several
conflicting interests: individual tribal members with the tribe,
the tribe with individual citizens in the State of Washington, and
in the U.S. generally, the tribe with the State of Washington,

the federal government with the State of Washington, etc. In

Olympic Pipe Line Company_v. Swinomish Tribal Community (003076),

 

a similar conflict emerged between the tribe who argued that the
tribal fishing resource could be threatened by the presence of oil
and gas pipelines in tidelands, and the corporation which contended
that disruption in the delivery of petroleum products would adversely
affect a significant segment of the general ppblic. These interests
are voiced in addition to those interests of the tribe in the
ownership of land, and of the corporation in property rights
(pipelines and valves) including use rights of an easement.

United State, ex rel. Cobell v. Cppgll, and Spagp_v. gpiggg.
§5a§g§_(consolidated: 001601) is another complicated jurisdictional
dispute, involving child custody. The Blackfeet Tribal Court claimed
jurisdiction of two children on behalf of their maternal grandmother
(an enrolled member) and mother (not a member) after State of
Montana courts awarded custody to the children's father (also
not a tribal member). The Blackfeet tribe argued that i£§_children

are the strength of the tribe and that the tribe is enhanced by the

154
jurisdiction over children. The State of Montana directed its

concerns to the "best interests" of the children:

The State of Montana, Amicus Curiae,
supports the position of the father,

Henry F. Cobell. Unless clearly defined
guidelines are set forth in the
jurisdiction of custody of children in
divorce and marriage and related matters,
irreparable damage will be done to many
children. There will be a constant flood
of litigation of one court overruling
another court, of no one knowing for sure
which order to obey, children will be
snatched from one jurisdiction and one
state court to Tribal Courts, to
reservations. The State of Montana basically
attempts to protect the interests of the
children. Most of the arguments which have
gone before in this case have centered
around the rights and best interests of

the father and of the mother, and even

of the grandmother; but we would argue

that this court should look to the best
interests of the children, and that would
dictate well-defined limits of jurisdiction
and guidelines for both the Tribal Courts,
.and state courts, and the United States
court to follow in child custody matters.

2_2/

In United States of America v. San Carlos Apache Tribe (002367)
the federal government intervened in a tribal election in the
absence of procedures and ordinances consistent with guarantees
of the ICRA. Its statement on the rationale for federal advocacy

is the most explicit of ICRA cases:

The public interest has been defined

as being something that either furthers
some recognized public good or minimize
a public harm . . .

155

The United States has a special relationship
to Indians which is grounded upon
Constitutional provisions, upon Congressional
enactments and upon federal Court decisions.
Not only is the United States concerned that
the interest of the San Carlos Apache people
in having a fair and unbiased election is
vindicated; but the federal government also
believes this action also furthers the
broader interests of the American people.

In recent years, the United States has seen
normal social processes disrupted by persons
who, rightly or wrongly, felt that their
views could not be expressed through normal
elective processes. The San Carlos Apache
reservation is not immune from such possible
disruption, which, if it were to occur, would
not be confined to the geographic boundaries
of that reservation . . .

The granting of the relief sought is
eminantly consistent with the public interest,
in that is increases reliance on established
avenues of expressing social concern and
political views, and tends to avoid the
potentially harmful effects which would

obviously result from an unfair tribal
election. 23/

The interests projected by non-Indian litigants in ICRA cases,
such as those reviewed above, are significant to the extent they
indicate the impact of tribal actions beyond the mere confines of
reservation boundaries or membership. However, to reiterate an
earlier point, most ICRA litigation was intratribal, related to 1

what shall be designated as boundary issues.
Boundaries and Agenda
For present purposes, a "boundary" is the parameter which

distinguishes whom or what is included, and whom or what is excluded

in a sphere of social interaction. A boundary condition is a

156
specific criterion which, considered alone or with other conditions,
defines a boundary. The enumeration of boundaries and boundary
conditions related to ICRA litigation does not appear, on its
face, to be problematic. One could methodically note, for instance,
the criteria which were the bases for decisions regarding membership
in tribes, certification of candidacy for elective tribal office,
and the like. In situations where boundary conditions appear
unevenly applied or inconsistent, it becomes obvious that the
various rationales which govern the implementation of boundary
conditions can be expedient and blatantly political. Such rationales,
though they do not fairly represent the dynamics of all boundary
disputes, nonetheless suggest that the delineation of "insiders"
and "outsiders" is immeasurably complicated by factors ranging
from tribal factionalism to resource depletion.

A most obvious category of litigants embroiled in boundary
issues are "outsiders,"though the designation belies the variation
in their circumstances. In 139 v. The Hopi Tribe (002882), plaintiffs
argued that a geographic boundary was an insufficient boundary
condition. The plaintiffs, Navajo individuals, one of whom had
lived on a parcel of land for all her life, the other for more than
twenty years, were prevented from rebuilding their home after a
fire destroyed it. The property in question was among territory
that had been the focus of an intertribal dispute between the
Navajo Tribe and the Hopi Tribe. The Secretary of the Interior had
stepped in and designated areas under the exclusive control of each
tribe. Navajo plaintiffs' property was within the new (or rather,
newly sanctioned) exterior boundaries of the Hopi Reservation.

Hence, plaintiffs, non-members, were subject to the actions of the

157'
Hopi Tribe. Dry Creek Lodge v. United States of America (002438)

 

 

involved geographic boundary issues as well. The plaintiff, a
non-Indian business located on privately owned land within the
exterior boundaries of the Arapahoe and Shoshone Reservation, sought
federal remedy to prevent the tribe from blocking an access road
(which passed over lands of tribal members) to a newly constructed
lodge. The Wind River Reservation, the locus of the dispute,
includes a city and several small communities and has a population
of approximately 35,000, only 4,500 of whom are enrolled members

of the Arapahoe and Shoshone Tribes. The reservation resembles a
checkerboard, with private land holdings of non-Indians interspersed
among the tribal property (see discussion of Allotment Act, Chapter

Five). Plaintiff corporation alleged:

That the acts of the said Tribal Council
are discriminatory and have been undertaken
with the avowedeintent of driving from the
Reservation non-Indians and other persons
associated with non-Indians who now reside
on the Reservation, and who have resided on
the Reservation from the earliest time.“

2.4!

In Baggy_v. Arapahoe and Shoshone Tribes (003108), non-Indian
lodge owners on deeded land within the reservation brought action
against the Joint Business Council of the tribes when they were
denied a tribal liquor license (they had been able to obtain the
required county liquor license). The plaintiffs argued that

deed land and population patterns in the area surrounding their
lodge (within the Wind River Indian Reservation) constituted a

"non-Indian community" and the extension of tribal juriSdiction

158
to non-Indians and deeded lands was unlawful. In both Dry Creek
Lpggg_andԤgppy, non-Indians argued that the fact of their geographic
inclusion on an Indian reservation was not balanced by other
boundary conditions, such as the vote (i.e., non-Indians do not
have a say in the tribal governance which affects their businesses).

Other non-Indian businesses, such as those in Merrion, Amoco, Lake

 

and Olympic Pipe Line Company (discussed above), with interests in

leases and easements on reservations, had expressed similar objections.
Tribal actions to exclude non-members from reservations took

various forms. The first ICRA case, nggg_v. Nakai_(001037) involved

the removal from the Navajo Reservation of a non-member attorney

[this case will be discussed in detail below]. Less drastic, a

number of cases addressed the exclusion of non-Indian lawyers from

practice before tribal courts. Prior to the ICRA, many tribes that

had courts prohibited professsional counsel because they were felt to,

impede (or intimidate) the deliberations of judges who were not

trained in Anglo law, or to demand of the tribal court what it

could not produce (e.g., Anglo notions of due process). The ICRA

specifically legislated that any person in a criminal proceeding

was entitled to have the assistance of counsel (the courts consistently.

interpreted this to mean professional counsel) at his/her own

 

expense. Tribal action which would exclude non-members also includes

incarceration. In Ortiz-Barraza v. United States of America

 

(002729) a Papago tribal police officer stopped and searched a
non-member vehicle as it passed through the Papago Indian
Reservation, finding burlap sacks containing marijuana. The

plaintiff was taken to the Papago detention facility and held

 

 

159

for transfer to the drug enforcement administration, thus effectively
excluding a non-member engaged in illegal activities from the
Papago Reservation. Plumn'er v. 99113.: (001070) could be said to
describe another type of boundary, namely the exclusion of state
instruments (the Bureau of Revenue of the State of New Mexico)
from a reservation where plaintiffs alleged the state was involved
in illegal activities by collecting taxes from members of reservation.
The Tribe (Navajo) had not consented to state assumption of jurisdiction.

Another variant of exclusion is demonstrated in
Wisconsin Potawatomies v. Houston (001656). In this case, the
Hannahville Indian Community brought action against the Michigan
Department of Social Services which had placed three children of
a full-blood tribal member father and a white mother (both deceased)
for adoption in Florida. The Department of Social Services argued
that the state had jurisdiction over the matter because the children
assumed the status of their mother (who was white) and hence the
children were "white" and beyond the jurisdiction of the tribe
(i.e., excluded from tribal jurisdiction). In ordering the
Department of Social Services to return the children to the tribe
from Florida, the court determined that according to Potawatomie
tribal custom regarding both the care and custody of children and
status of children of an Indian father and white mother, that the
children were Indian and were included within the jurisdiction of
the tribe. United States, ex re14_Cobell(described supra),which
involved three separate jurisdictions in a child custody dispute,
shares with Plummer and Wisc0nsin'Potawatomies the manipulation
of jurisdictional criteria to assert boundaries and to designate

insiders and outsiders.

160

The relevance of boundary and boundary conditions to intratribal
disputes becomes more apparent as control of the "agendaf is taken
into account. Designation of the agenda, ostensibly the prioritized
inventory of tribal deliberations and actions,is;positively correlated
with the relative power of individuals or groups in tribes. For
instance, non-Indian businesses on reservations complained that they
had no voice in tribal affairs, and that tribal councils and business
committees, who appeared to have little interest in the viability
of a business, nonetheless dictated the conditions and terms under
which it had to operate. Such excluded entities lacked the vote,
lacked eligibility for tribal office, and some would argue, lacked
the ability as a class of interests to prevail in struggles over the
agenda (be it through tribal courts, etc.). A federal remedy, the
ICRA, was seized upon as a means of penetrating the tribal boundary.

As is evident in several cases cited thus far, membership
criteria control access to the tribe, the agenda, and tribal
resources. Membership controversies appear to be intratribal when
former members are excluded, because of the changed status of their
national citizenship, violations of reservation residenCy requirements,
and the like. There are additional types of membership disputes. .
A member of the Three Affiliated Tribes of the Fort Berthold
Reservation, in Necklace v. The Tribal Court of the Three Affiliated

‘Igipg§_(003362), petitioned the court for write of habeas corpus.

The plaintiff had been confined in a state hospital pursuant to an
involuntary commitment order of the tribal court, and she argued
that her exclusion from the.reservation and confinement in a state

facility did not satisfy basic due process. In Gr0undhog v. Keeler

161
(002261), plaintiff descendants of enrolled citizens of the Cherokee
Nation brought action against the Principal Chief of Tribe who
had been appointed by the Secretary of the Interior. Challenging
the power of the Secretary to designate the Chief, plaintiffs
alleged that the current appointee, Keeler, was not a citizen by
blood of the tribe. In this case, in spite of tribal membership
criteria, federal intervention (Secretary's appointment) resulted in
an allegedly non-member official assuming a measure of control of'the
tribal agenda.

Determinants of political power, such as eligibility for tribal
elective office and eligibility to vote, are fundamental requisites
for controlling the tribal agenda. In Jacobson v. Forest County
Potawatomie Community (002672) an adult female descendant of an
enrolled member of the Forest County Potawatomie Community alleged
that a contemporary stipulation of the tribal Constitution and
Bylaws that the "General Tribal Council shall elect from its male
members . . ." prohibited female tribal members from holding office
on the Executive Council, though females had traditionally participated
in the General Council (including the plaintiff). Another
boundary condition was based upon alleged conflict of interest.

In prpp_v. Rosebud Sioux Tribe (001107) the plaintiff challenged
a section of the Constitution of the Rosebud Sioux Tribe which
denies eligibility for membership on the tribal council to employees

of the Public Health Service or Department of the Interior:

Even if it be admitted that the tribe

has a legitimate interest in proscribing

employees of the Bureau of Indian Affairs
from membership on the tribal council, it

162
has no legitimate interests in excluding
all employees of the Department of the
Interior (which would include, for instance,
a national forest ranger, a federal inspector
of mines, etc.) or for excluding any employee
of the Public Health Service, an organization
which by law has no direct or indirect

influence upon or connection with the
internal governance of the tribe. 25]

The tribe maintained that federal employees in administrative
capacities in the tribe may unduly influence tribal affairs in a
manner detrimental to the integrity of the tribe. In Howlett v.
The Salish and Kootenai Tribes (002779) two tribal members were
declared ineligible candidates for tribal council membership on the
basis of residency requirements. The plaintiffs, who were absent
from the reservation for several months the year prior to the
election (working and attending school), contended that a residency
requirement was a violation of their right to travel. The tribe
argued that residency was requisite: the political and managerial
responsibilities of tribal council members could only be discharged
if the members had full knowledge of the constituents and area
represented, acquired by daily presence on the reservation. In
addition, they argued that the cultural identities of the tribes
were entrusted to political leaders to carry forward -- knowledge
of these cultures was gained only by continual residence on the
reservation.

In addition to eligibility for tribal elective office, voting
criteria are basic boundary conditions. The twenty-sixth amendment
to the U.S. Constitution (right of citizens eighteen years and

older to vote) was cited by plaintiffs in Wounded Head v. Tribal

163
Council of the OgJala Sioux Tribe (002646) who were denied the right
to vote in tribal elections. The tribal constitution stipulates
that only members twenty-one years or older may vote. Though not
specifically articulated by either litigant, enfranchising a new
class of the tribal population (a three-year cohort) would have
implications for the balance of power on the reservation. Similarly,
in Lpgap_v. Mppppp (002471) the plaintiff class, Osage Indians
who possess no "headright" annuity interest (or only fractional
interests) in the Osage Mineral Estate, were not permitted to vote
(fractional annuity interests permit corresponding fractional votes)
in the election of the Principal Chief, Assistant Principal Chief,
or tribal council. Plaintiffs argued that they were unfairly
deprived of membership privileges (a whole vote) because they
lacked annuity shares. The tribe, on the other hand, argued that
its powers to sell certain tribal reserves, lease oil, gas and
mineral rights, detenmine royalities paid to the tribe, etc.
provided a rationale why a member's stake in annuity interests
should be accorded full weight. Hence, members without such
annuity interests should not dictate the actions of council which
directly affect headright annuities. Apportionment is a related
boundary condition which affects eligibility for tribal elective
office and voting. In Mousseaux v. Rosebud Sioux Tribe (003549)
the member plaintiff, seeking office as a tribal councilman, alleged
that the tribe had arbitrarily and without notice redefined the
boundaries between two Indian communities. This allowed a competing
candidate, previously excluded because he could not satisfy the

residency requirement for tribal office, to be placed on the ballot.

164

The plaintiff, no longer running unopposed, accused the tribal
council of taking its action solely to remedy the residency problems
of the other candidate. Reapportionment, in this and like instances,
has an impact on voters in that the populations of election districts
may not be sufficiently equal to guarantee equal representation.
For example, a proposed action pending before a tribal council,
which will have an impact on the entire tribe, will be decided
by the majority of five votes cast by five elected representatives
from five communities within a reservation. If the populations
of these communities are unequal, the vote of a representative
of a small district may disproportionately affect the outcome of
tribal council deliberations i.e., the "vote" of a small district,
which may result in a tribal action which disproportionately affects
a larger district, controls the agenda. Da_ly_ v. United States of
America (001274) largely reflects such a situation.

It should be reiterated that such intratribal boundary conditions
and agenda issues have a distinctive political, factional flavor
(see section, Litigant Interests, supra). In Soloman v. Lafip§g_
(002033) plaintiffs readily admit that they are challenging the
decision of the tribal council to invalidate election results
because such actions deprived them (the plaintiffs) of an opportunity
to f0rm an intratribal council coalition.g§/ The substance of like
cases was noted by the courts. In gpgpg§3g_v. Rosebud Sioux Tribe

(003697) Judge Bogue observed:

The complaint is a veritable hodgepodge.
Interspersed among the allegations about
the recent election, we find several dozen
allegations concerning alleged deprivations

165

of property without due process of law. On

top of that we find occasional references to

an alleged conspiracy -- who allegedly conspired
and for what alleged purpose we must for the
most part surmise from the context . . .

We have referred to the prior election and the
disputes that came in its wake in order to
demonstrate that this business of federal
courts being called upon to intervene in tribal
elections is becoming routine operating
procedure. There appears to be no end in
sight. Every two years one can expect as a
matter of course that a replay will occur.
This cannot go on indefinitely. There are
five reservations in the Central and Western
Divisions of South Dakota, and one federal
judge. Unless this trend is cut off at some
point, it will become virtually impossible

to deal effectively with the ordinary run

of cases by virtue of the fact that disputes
of this nature will dominate the federal
docket. gz/

Perceptions of Legitimate Authority

The perceptions of litigants regarding the legitimacy or
illegitimacy of structures (e.g., tribal courts) and actions which
facilitate or impede opportunities are, of course, relative to the
perceived costs or benefits of intervention (where at least one
"side" of a controversy invokes outside arbitration of a dispute,
such as occurs with a civil complaint). Such perceptions, when
articulated in ICRA cases, are overwhelmingly rooted to beliefs,
values and interpretations of legitimate and illegitimate authority
which go considerably beyond the issues directly at hand. Contending
parties have a clear sense of which authority, for them,has integrity,

and merits their compliance and respect.

166

As the underlying theme of all ICRA cases is tribal self-
governance, manifest in impacts upon tribal members and non-members,
there is considerable attention paid to the adequacy and the proper
exercise of tribal authority. Tribal entities -- courts, councils,
committees -- and classes of tribal members (which are fluid and
construct themselves around any single issue) embrace a basic set
of domain prerogatives which ensure they can preserve themselves
and the status quo. The authority of the tribe is so exercised
in determinations of boundary conditions,such as enrollment criteria,
eligibility for tribal office, and distribution of the vote. The
tribal exercise of authority, as pointed out, has been extended
beyond the geographic COflflflESinthe reservation. In Wisconsin
Potawatomies v. Houston (001656) and in United States,ex rel. Cobell
v. Qppell(001601) children involved in custody or probate disputes
in state courts were alleged to be the exclusive concerns of Indian
tribes. In Settler v. Yakima Tribal Court (001149) the tribe
asserted its control over activities of members exercising a
membership right (fishing) some distance from the reservation.
Non-member activities on a reservation are also perceived to be
genmain to the exercise of tribal authority. Regulation of these

matters has had wide impact. In Ortiz-Barraza v. United States

 

(002729) the action of a tribe to remove a non-member was cast

as self-protection from persons wishing to conduct illegal activities
on the reservation. In Berpy_v. Arapahoe and Shoshone Tribes
(003108) and Dry Creek Lodge v. United States (002438) the regulation
of alcohol consumption on a reservation was defended as a means of

controlling the debilitating effects of alcohol in tribal life.

167

The extraction or use of tribe resources (grazing permits, oil
and gas leases, easements, etc.) has been subject to tribal
regulatory actions on the basis of protecting the tribal livelihood
for present and future members. Included here as well are boundary
conditions related to membership which in effect regulate the
distribution of tribal rights in property to individuals. In
Plummer v. gppeg (001070) an attempt is made to shield assets of
tribal members (the incomes of individual members) from taxation by
the state. The disposition of tribal assets and resources also
involved intratribal regulation. For instance, in Lpgap_v. Mppgpp_
(002471) the structure of tribal governance is defended on the basis
of interests in the Osage Mineral Estate: voter eligibility is
determined by headright annuity interests. In Aubertain v. Colville
Confederated Tribes (003638) a tribal member, who was granted a
Discharge in Bankruptcy in federal court, alleged that the tribe
illegally withheld tribal per capita payments from him to apply
to the unpaid balance of a loan from the tribe. The tribe in turn
argued that the federal bankruptcy decision did not discharge the
individual member's obligation to the tribe.

Tribes have also reserved, as their legitimate exercise,
the interpretation of their own constitutions and bylaws. In
Big Knife v. RockypBoy's Chippewa:Cree Tribal Business Committee
(001060), an action regarding qualifications of candidates for
the Business Committe, the defendant tribe maintained it had the
discretion to waive an article of their constitution which required
district representatives to reside on their selections (property)

for two years to qualify for office:

168

The Rocky Boy Reservation covers only

a limited land area. Consequently, there
is not enough selection for all the
qualified members of the Tribe. Location
of selection or the necessity of proper
and adequate living conditions often
dictate that a member and his family
cannot live on their selection.

Because of these conditions, Business
Committees have not interpreted this
requirement strictly. Rather, they have
looked to where the particular individual
lives. Given the conditions of Reservation
life, this is a reasonable interpretation
of the qualification and it affords all
members of the Tribe an equal opportunity
to seek elective office. 223/

In Howlett v. The Salish and Kootenai Tribes (002779), reviewed
previously, the tribe defended a strict interpretation of residency
requirement as requisite for the responsible conduct of tribal
affairs by the council members.

Another critical area of self-governance which tribes steadfastly
defended as legitimate was the right to adjudicate intratribal
conflict. In Indian Political Action Committee v. Tribal Executive
Committee of the Minnesota Chippewa Tribe (003050) plaintiff members
protested elections on the White Earth Indian Reservation alleging,
in part, that they were denied due process by the Tribal Executive

Committee (TEC). A court opinion aptly described the TEC defense:

In the present litigation, plaintiffs'
claims concerning the hearing procedures
cannot be measured by normal due process
standards including formal testimony,
cross-examination, a written record, and
written reasons for decision. The "town
meeting" type hearing which was employed

by the TEC is the traditional form of

tribal hearing and must be measured by

the general standard of fundamental fairness

169

This court refuses to hold that this time-
honored and customary procedure employed

by the TEC is so lacking in fundamental
fairness as to constitute a denial of due
process. All members of the tribe had notice
of the meeting, and all who came were given
the opportunity to be heard. No fairer
procedure could exist. 28]

The tribal courts are instrumental in this adjudication process
[the court structure, however, is largely imposed, a product of
legislative enactments such as the Indian Reorganization Act], and
in United States, ex rel. Cobell defendant tribal judge Sharp spoke
to the legitimate involvement of the tribal court in the child
custody matter and jurisdictional dispute with State of Montana

courts:

The recent history of this country shows
an ever increasing level of self-awareness
on the part of the minority groups that
comprise such an important part of our
population. It has only been recently
that this tide of self-awareness has
reached the American Indian but it pa§_
reached them and cannot now be ignored.
The primary goal of the entire self-
awareness movement is self-determination
an element of which is the autonomy of

the tribal courts. Tribal courts are
beginning to act like autonomous,
functioning tribunals capable of asserting
independent jurisdiction over a variety
of subjects and capable of dealing with them
competently. Correspondingly, the Indians
themselves are pressing their own tribal
courts to assume jurisdiction over matters
important to them. ‘22/

In Burnette v. Dann (003147), an action by an Associate Judge against

the Chief Judge of the Fort Hall Tribal Court alleging due process

170

violations on the part of the tribal court, the federal court
upheld the solvency of the tribal remedy: "Exhaustion of tribal
court remedies in cases of this nature should be the rule . .
It is essential to the strengthening of the Tribe's 'power of self-
government.'Ҥ9/ However, in a number of ICRA cases, discussed
below, litigants challenged the tribal courts and the conduct of
tribal government generally: the federal court findings and opinions
regarding the adequacy of their structure and process were variable.

Aggrieved litigants who sought federal remedy from the impacts
of tribal self-governance often alleged the illegitimacy of tribal
actions. Federal court decisions involving ICRA disputes, where the
federal courts deemed the intent of Congress to be intervention
in such controversies, addressed a broad range of tribal affairs.
From these, the general framework of "proper conduct" emerged
for intratribal and extratribal matters based upon the opinion that
tribes were not immune from suit, and that the federal court could
review tribal affairs. This posture was advocated by a number of
affected interests, including interests of some tribal members.
With respect to intratribal conflicts, some of which have been reviewed
in preceeding pages, "proper conduct" mandated by the federal court 1
included directives that tribes must abide by their own constitutions
and apply their own rules of conduct with consistency,§l/ that
tribes are accountable to individual members for the contracts
they enter into, the expenditures they make, and the conduct of
their instruments (e.g., police), and that their administrative
and judicial institutions must reasonably referee intratribal

conduct (see Bogue's coment at165, supra).

171

With regards to boundary conditions of all types as they
affected "outsiders," some tribal actions were considered arbitrary
and tribal discretion in these matters was questioned. In the
Settler cases, as noted, tribal jurisdiction -- more specifically,
the right of tribal members to fish according to tribal ordinances
off-reservation -- was challenged with regards to the larger public
good. Treaty fishing rights were felt by the State of Washington
to pale in the face of managing the fishery for the larger public.
Similarly, plaintiffs in Olympic Pipe Line Company, confronted with
accusations that oil and gas lines could irreparably harm a tribal
fishery if a rupture were to occur, retorted that the larger public
was served by uninterpreted delivery of petroleum products. In
United States, ex rel. Cobell, the federal (District) court, in
concert with the State of Montana which alleged that the extension
of tribal jurisdiction to the custody case in question undermined
State efforts to secure the best interests of the children, observed

of the tribal actions:

The effect of the order [of the tribal court]
is to allow a Tribal Court to establish a
sanctuary for Indian persons both members

and non-members, who have subjected
themselves to state court jurisdiction,
merely because the Indian person takes

flight to the Indian reservation. I find
that to be an exercise of Tribal power beyond
that granted in a controlling Act of Congress.

g]

It was issues of tribal justice and tribal courts that
elicited the most poignant.considerations of illigimate authority

and power in ICRA cases. Tribal adjudication of conflict was often

172
alleged to something less than a "civilized standard of justice."
Some of these sentiments eminate from general perceptions of
tribal conduct. In Waggpp v. ggay (001015), an action against
tribal officials for interference with a legal aid corporation,

it is observed:

A basic purpose of the federally-funded

Zuni Legal Aid program is to provide
literate and sophisticated advocates

for low-income persons who are in many

cases unfamiliar with the English language
and most cases unfamiliar with their most
basic legal rights in dealing with
governmental officials. It is understandable
that governmental officials may feel
apprehensive about dealing with such
advocates, especially if such officials

are accustomed to treating Indian people

in an arbitrary manner without significant
opposition, but it is clearly beyond the
authority of such officials to hide behind
the walls of their offices and refuse to
deal with the advocates retained by the
people they are supposed to be serving. 22]

Other themes were broader and spoke to the trans-tribal complexion

of Indian rights, as in Cliff v. Hawley (002924):

It is submitted that the seeds for such
deterioration can already be seen on

other reservations including Fort Belknap
Reservation and Rocky Boy Reservation both
of which are in northern Montana. It is
submitted that the answer does not find
itself in greater funding for weaponry of
arms and ammunition funneled to the
reservations through various United States
Government agencies . . .

It is submitted that first there must be

created an atmosphere conducive of respect

for the law and a reliance upon principies
' of justice and fairness . . . 24]

173

In ICRA cases, when questions concerning the adequacy of
tribal remedy were in dispute, an attempt was made by tribes to
balance the alleged requirements of the ICRA with tribal custom
and practice. Federal courts generally maintained that it was
reasonable to take such factors as Indian culture into account.
Litigants challenging the legitimacy of tribal authority often
responded directly to such claims of cultural immunity by tribes.

For instance, in Wounded Knee v. Andera (003083), an action alleging

 

that the platiff was denied a fair and impartial trial because
the tribal judge acted as both judge and prosecutor, the following

point is made:

The tribe contends that cultural and
traditional Indian values will be injured

if the tribe is required to hire a prosecutor.
We find little merit in this contention.

The judicial system is Anglo-American

and assuredly not Indian; adding the
safeguards guaranteed in Anglo-American

law certainly is no more an encroachment

upon the Indian way of life than the tribal
court itself. 25]

A companion sentiment, though more direct, was expressed in Peterson

v. Salois (003591), a petition for habeas corpus:

The constitutional rights afforded all
citizens are not available to Indians
(and possibly all of us) in dealing

with Tribal entities. To remedy this
anomaly Congress has provided statutory
protections, and remedy, through the
Indian Civil Rights Act. To erode these
protections and rights through a slavish
pandering to the view that the Tribal
Courts can disparage these rights because
they represent the government of indigenous

174

aborigines still engaged in a primitive
hunting culture is to ignore reality. We

are reviewing the actions of a court using

an Anglo-American form of jurisprudence.
These Tribal officials should be held to the
same standard as the rest of us. There might
well be exceptions but such should be
demonstrable and constitute the exception

and not the rule. Tribal courts are generally
not of record (and here the record is of
doubtful quality). The duty of the Federal
Courts is to protect the rights of the

people brought in contact with Tribal
institutions, not vice versa. 2p]

Structural inadequacies of tribal court systems which were
cited in ICRA cases ran the gamut from total absence of courts
in some tribes to lack of autonomy of the tribal judicial system
.11§_a_gi§_administrative bodies. Ruling that the plaintiffs in
Two Hawk v. Rosebud Sioux Tribe (002857) had exhausted tribal
remedies, the federal court noted that "due to lack of funds the
Court of Appeals [tribal appellate remedy] has not heard a case in
fifteen years."§Z/ In Schantz v. White Lightening (002137), amicus

 

Marvin Sonosky spoke to the major deficiency, in his view, of

tribal courts:

The basic rights conferred by the Indian
Civil Rights Act are magnificant. But

the right to trial by jury, the right to
counsel, the protection against unlawful
search and seizure and all the other

fresh benefits of the Indian bill of
rights, mean little, if not given life.

And that calls for money. Indian tribes
have no tax base. Their income is limited
to their tribal property and to some of the
federal money available to States and their
subdivisions for specific purposes. The
administration of justice on Indian
reservations is acknowledged to be a
Federal responsibility. Unhappily, it is

175

a responsibility that has not been fulfilled.
This court cannot simply supply the monetary
need. But, we mention it, because the
problem is a practical one, that requires

a pragmatic solution. 22]

Petitioner in Wounded Knee v. Andera (003083) is more direct, and

seemingly less tolerant:

Certainly the Tribe should be able to spend
its monies as it sees fit, but to ignore

basic rights guaranteed by the Indian Civil
Rights Act on the ground that the Tribe cannot
afford to provide those rights is simply
beyond the discretion of the Tribe. Such
excuses resemble the rhetoric of dictatorship
and some communist governed sovereigns when
they are faced with accusations of denying
their citizens basic civil rights. They have
no place in our country, on an Indian Reservation
or anywhere else. 22]

From other points of view, the problem is located elsewhere. In

White v. Tribal Council, Red Lake Band of Chippewa Indians (003376)

 

plaintiffs, who contested election results, maintained that the
tribal court had no jurisdiction over the tribal council, and

further:

This study clearly shows the inadequacy
of the Court to handle this dispute . . .
While our investigation has yielded
imprecise information as to the extent
of the training of Tribal Judges, it is
beyond question that the Tribal Judges
have had only slight legal training, and
little academic training. 59/

The effect of tribal court procedures on a class of litigant,

indigent, was purported to be adverse. For instance, the right

176
to counsel at the expense of the litigant, was said to exclude
some tribal members. In 12'! v.'_s_u___upn_ (002835) plaintiff/appellant
Tom, convicted in tribal court of driving without a valid driver's
license and incarcerated for ten days, alleged he was denied due
process because he could not afford advice of counsel. The ICRA
"which confers the right of counsel only upon those wealthy enough
to take advantage of that right, controls and defines the 25 USC 1302

(8) command of due process and equal protection95l/ In Walkinngagle

 

v. Nightpipe (001077), an action against the Rosebud Tribal Court
which refused to grant personal recognizance to the plaintiff who
had two misdeameanor charges pending before the court, the bail
policy of the Rosebud Court was "interpreted" to be a policy "which
promises only to incarcerate those 'dangerous' people who are
also destitute; wealthy multiple offenders can, and do, post the
required cash bonds and go free until trial."53/

For some, the most debilitating constraint on the tribal
court system was the influence, or control exerted by administrative
units such as tribal councils, elections boards, and business
committees. In Dry_Creek Lodge, the tribal judge allegedly failed
to enjoin the actions of the tribe because he feared he would
lose his job if he did so without their consent. In Williams v.
Sisseton-Wahpeton Sioux Tribe (002677), a candidate, Cloud, allegedly
falsified a Notice of Candidacy by stating he was never convicted
of a felony. The tribal judge took this information to the
tribal chair and elections board, but was told Cloud's name would
remain on the ballot. Acting on a petition by one of those not

surviving the primary, the tribal judge issued a restraining order

177
to prevent the tribal council from counting ballots until the
eligibility question of Cloud was settled. The council met and
voted to disregard the court order -- when warrants were issued
for the arrest of council members for contempt, the council
suspended the Chief Judge of the Sisseton-Wahpeton Sioux Tribe.
In Runs After v. Cheyenne River Sioux Tribe (003623) plaintiffs
alleged that the Cheyenne River Sioux Tribal Council illegally
cancelled debts to the tribal treasury incurred by tribal members
during the course of a tribal rehabilitation program. Plaintiffs
demanded a referendum on the matter, but the tribal council and
tribal chairman refused to act on the demand. The court, assessing

the adequacy of tribal remedy, noted the following:

. . . it became clear that the council
which originally cancelled the debt and
thereafter refused to call a referendum,
would be the same council that would
determine whether the judicial officers
of the tribe should grant plaintiffs an
extension on the time for appeal. We do
not assume that the council will operate
in bad faith and cannot forecast with
certainty what their decision would be.
Yet, at this juncture it would strain
common sense to postulate that appellate
review would be granted in the council's
discretion when the council has made
every effort to foil plaintiff's hopes
for a referendum, and has refused to waive
sovereign immunity. Much as this Court
would like to send this matter back for
tribal appellate review, we decline to do
so because there appears to be no reasonable
possibility that a timely review would be
made. 42]

178
In Spotted Eagle v. The Blackfeet Tribe (002189) plaintiffs, a class
of persons convicted in the Blackfeet Tribal Court and detained
in the tribal jail, lodged a broad spectrum of complaints against
the general criminal justice system of the Blackfeet Tribe. Of
tribal judges, it was maintained that defendants in criminal
proceedings were made to incriminate themselves, were not advised
of their right to trial by jury, were denied professional counsel,

and the like. The tribal jail was assessed as well:

For adults, the jail is a place of
deprivation and despair; for minors it
is a breeding place of immorality,
lawlessness and crime. It is alleged

on information and belief that the
Blackfeet Tribal Jail must be classified
as one of the most degrading facilities
to be found anywhere in the United
States, comparable in our time only to
the concentration camps of the Third
Reich. This jail would be the subject
of outraged protest by a humane society
if it were to be used for animal
detention. No rehabilitation is possible
in such a depraved atmosphere; the
fostering of criminal propensities is

a necessary and unavoidable result of
time served in this facility which may
truly be designated a pest hole. 35]

Perceptions of history and culture of Indian tribes are related
to assertions regarding the legitimate. and illegitimate exercise
of tribal self-governance. For example, tribes in some ICRA
cases attempted to contextualize tribal actions in history and
custom in a manner that lent integrity to contemporary actions.
In Mark0vich v. Puyallup Indian Tribe (003001), where plaintiffs
challenged the procedures used to compile the Approved Tribal

Roll of the Puyallup Tribe in 1929, the tribe responds:

179

Over 45 years have passed since the events
which plaintiffs want to question took
place. The events involved determinations
which we have no way of reconstructing,
taking into account circumstances
prevailing at the time of which we can be
only in the most general terms aware.
Decisions were made based on factors of
tribal heritage and sense of community,
an outlook which neither this Court nor
anyone else could simulate. Enrollment
decisions were based in part on the
actions of ancestors and family members,
many of whom have long ago died. The
problem is particularly acute in this
situation where plaintiffs apparently
seek to go into detail concerning the
state of mind and capabilities of persons
no longer living. Even if plaintiffs

are able to present credible evidence on
such matters, the Tribe no longer has any
way of testing or countering such
evidence. 32]

In Big Eagle v. Andera (002506), conta plaintiffs' allegation
that a disorderly conduct provision of the tribal code is so
vague that its interpretation threatens freedom of speech, the

status quo in the Crow Creek Sioux Tribe is proposed:

Misconduct is not constitutionally
protected, and residents of the
reservation know that to be the fact.

No arrest has ever been made by the

Tribe or the police officers for making
speeches at rallies, carrying picket

signs or any other such activity. As

a matter of fact, the normal tribal
political situation contemplates active
dissent and it is not unusual for political
leaders to be vocally harangued by members
of the audience, nor is it unusual to

have several petitions for impeachment
with respect to any and various members

of the council or police department
circulating on the reservation at the

same time. Thus the statute in question

180

has had no chilling effect upon freedom of
speech or of dissent on the reservation.
In fact, the cultural and traditional
complexion of tribal politics ensures that
no sanction will ever be imposed for
speaking out or dissenting. 32]

It is difficult to summarize federal court interpretations

of relations between indigenous groups and Anglo-Americans, except

to note the simplistic and even romantic character of such accounts.
Two examples should suffice to make this point. In Settler v. Xagime.
Tribal Court (001149) the district judge reviewed the origins of

fishing rights:

About 113 years ago, a group met in the
Walla Walla Valley at a place called

Camp Stevens. Some were called Indians

and others white men, and, for the sake

of brevity, will be referred to as red
brother and white brother. The head white
brother, a man named Stevens, talked to the
head red brother, a man named Kamaiakun,

and after due deliberation presented the
head red brother with a piece of paper and
asked him to make his mark on the paper, and
that he would fill in the blank spaces
later. Kamaiakun assented. It appears that
he could neither read, write nor speak the
English language. Communications were by
interpreter. This piece of paper was
described as a treaty, ratified by the
Senate of the United States on March 8, 1859,
and proclaimed by the President of the
United States on April 18, 1859. After

the blank spaces were filled in, it was
provide that those who were represented

by red brother, including delegates

from a number of Indian tribes named in

the treaty, would be considered as one
"nation." 12 Stat. 951. The name of the
nation was "Yakima," and the Yakimas ceded
and relinquished certain lands to the

United States, but reserved from the ceded
lands for their own use what is now known

as the Yakima Indian Reservation. 42]

181
A circuit court judge in Groundhog v. fiéfilfit (002261) recounted the
development of the Cherokee Nation (which, it appears, was the basis
for his discounting the importance of plaintiffs' contention that
Keeler, the Principal Chief appointed by the Secretary of the
Interior, did not meet the blood quantum requirements for membership
in the tribe):

The Cherokees are one of the Five Civilized
Tribes of Indians.

They were the largest and most important tribe
of Indians originally east of the Alleghanies.
Compared with other Indian tribes, they ranked
high in culture and intellectual receptivity.
Their high degree of civilization was probably
due to their own inherent character and the
fact that many of their purebloods
intermarried with fine members of Scotch
families, and pureblood Cherokees intermarried
with half-blood or less than half-blood
Cherokees. The admixture of Cherokee and
white blood began long before the Revolutionary
ar.

We have recited the above facts . . . to show
the high degree of civilization the Cherokees
attained. 52]

In addition to contemporary interpretations of tribal history,
some ICRA cases present interpretations of contemporary intent.
For the most part, these are articulated by litigants adversely
affected by tribal actions. In Dry Creek Lodge non-member
plaintiffs living within the exterior boundaries of the Arapahoe

and Shoshone Indian Reservation conclude:

What the Appellee Tribes are really saying

to this Court is that ”we may do what we wish
to any citizen, Indian or non-Indian, and

we are not bound to governing our own

182
intra-Tribal affairs but may reach out into

society in general, wherever we wish and whenever
we please." 32]

Schantz v. White Lightening (002137) was an action of a non-

 

Indian who, while traveling across the Standing Rock Indian
Reservation, was involved in an automobile accident with tribal
members who were at fault. State and tribal courts refused him
remedy, claiming to lack jurisdiction. There is little question

as to plaintiff/appellant's regard for tribal justice:

Perhaps this case is unique, perhaps it

is run of the mill. Explain to the
plaintiffs that they have been injured

by other "citizens of the United States."
Explain to the plaintiffs that they

cannot pursue the usual and customary

route to redress their claim against the
defendants because the defendants are Indians.

Indians you say, but under the Constitution
of the United States aren't we all equal
without regard to race, color or creed?

Well yes, that is true, but not where they
are Indians and you happen to go on their
reservation and have an accident with them.

Well then are they a separate little nation
down there, that they have their own laws
and aren't subject to the laws of the
United States?

Well no, they are subject to the laws of
the United States when it suits their
benefit, but you must go to their courts
and abide by their laws in order to
redress your grievance.

Well, even if I wanted to go into their
Court, their Court doesn't want me. Their
Court excludes me because I am not an
Indian, not a resident of the reservation
and my claimexceeds $300.00.

183
So if my State Court doesn't want my case
because the defendants are Indians, and
if the Tribal Court doesn't want my case
because I am not an Indian, and if the
United States Courts do not want my case
for the reason that this does not involve

a question of Federal Law, then what Court
is available to me? 29/

Interests-at-Risk

Litigants embroiled in ICRA controversies promoted their acts,
intented actions, or appeals to federal remedies as benefits,
contraposed to the pp§t§_and impact of adverse actions or threat
of same. Costs and benefits appear obvious, in that at one level,
the interests at stake (for the individual litigants and often for
the class of interests represented) are baldly stated. They are,
in order to "make the case," usually overstated and over-dramatized
as well. The point is that at first glance some interests-at-risk
are apparent. For instance, more than three-quarters of ICRA cases
alleged denial of due process. This is a rather straightforward
observation, which when combined with other equally obvious features
of ICRA litigation, would allow the conclusion that the impact
of the ICRA has been largely procedural versus substantive rights-
oriented. While this is a valid conclusion in its own right, it
does little to illuminate the complex interplay of factors which
contour socio-legal impact. A balance is not easily struck between
conflicting claims to "equitable and reasonable" conduct. Tribal
self-governance, if we may legitimately claim to understand its
status quo from ICRA litigation, variably jeopardized and enhanced

opportunities of tribal members and nonmembers alike.

184

A significant portion of ICRA cases where interests of the tribe
were contrasted with those of “outsiders" were related to the
management, control and extraction of resources. Conflict was most
often cast as the "tribal v. public" interest. Hence with fishing
(Settler cases, for instance) it was alleged that state enforcement
of ordinances designed to protect the common resource was undermined
by the immunity of a small public, tribal members. The tribe, for
its part, argued that its exercise of self-governance was intended
to protect the right to fish. Measures to ensure the viability of
fishing for a future generations of tribal members were not inconsistent
with the larger public good. There is an ironic feature of like
cases, in that federal "concessions" of treatying -- considered
at one time to be marginal (marginal, useless land and rights) in
the framework and requirements of national development -- are now
the locus of conflict. Cases that touched upon different facets
of energy production illustrate the irony where the "public interest"
which clamors for limiting tribal discretion, and the tribal interest
in unfettered management, are both focused upon what was once felt
to be worthless. In Merrion v. Jacarilla Apache Tribe and Amgpg_v.

Jacarilla Apache Tribe (consolidated: 003553), actions testing a

 

severance tax, James Watt [current Secretary of the Interior] argued
the federal ("public") interest in Jacarilla Apache Tribal management

of gas and oil extraction:

The Arab Oil Embargo instituted by OPEC in

the early 1970's highlighted this nation's
dangerous dependence on imported oil.

Congress responded with a variety of measures
designed both to increase domestic production
of fossil fuels and to encourage development of
alternative forms of energy . . .

185

By 1977, Congress recognized that this
country was facing a shortage of nonrenewable
energy and, at the same time, was becoming
increasingly dependent on foreign energy
supplies. . . Realizing that in the context
of a fragmented approach to energy matters this
disturbing trend constituted a threat to our
national security, Congress mandated a
comprehensive national energy policy to be
implemented by the newly created Department
of Energy.

Clearly, the establishment of a comprehensive
long-range national energy policy is an
overriding federal interest.

Indian tribes in this country control a
significant amount of energy reserves. . .

As of 1977, forty separate tribal governments
in seventeen different states controlled a
portion of these reserves. From a logistical
standpoint alone, the evaluation and
coordination effort needed to integrate

forty separate regimes of energy-related
taxation into a comprehensive national
strategy is staggering.

In arguing the case below, the Secretary of
Interior asserted that the tribes could use
their purported sovereign right to tax

as a tool to restrict development of their
reserves even under existing leases. . .
Moreover, it is not speculative to assume
that if the ordinance at issue in this case
is upheld, other tribal governments will
follow suit. . . Therefore, this Court
must consider whether in light of these
ramifications and the desire to establish

a comprehensive energy plan, it is in the
national interest to have forty separate
enclaves that can not only tie up future
development, but also stall existing
production under previously negotiated
leases by unilaterally increasing, in
potentially unrestrained amounts, the cost
of production. 21]

In Lake v. Peabody Coal Company_(001492), customary use is contrasted
with development (which ostensibly included tribal development)

where plaintiffs argued that stripmining prevented the exercise of

186
surface rights, including use of land for grazing, use of water from
natural sources and wells for livestock, farm and domestic use, use
of land for homesites, farming, and thelike. Similarly, in the

intertribal dispute of I§p_v. The Hopi Tribe (002882) the customary

 

use of land by Navajo individuals is usurped by the larger public
(the Hopi Tribe) who, it was alleged, was contemplating the
development of the contested land (at the corners of two major
highways) into a prime commercial site.

Boundary conditions stipulated by tribes had variable impact
as well upon segments of the non-Indian “public" who resided within
the reservation. Businesses, whose affairs were checked by tribal
entities (purportedly in the best interest of the tribe) appeared
subject to substantial costs in the transaction of their affairs.
Tribal restriction of alcohol on the reservation, such as in 2e§py_
v. Arapahoe and Shoshone Tribes (003108), affected interests who
would benefit from a lodge (including tribal members) and those
whose stake in the tribal interest favored less alcohol. In
Drprreek Lodge the cost of non-Indian residents, and to tribal

members employed by them, is detailed:

The business of the Lodge was immediately
ruined due to fear of armed violence along
the road. The Small Business Administration
loan went into default. . .the internal
actions of the "Tribes" have made the
Plaintiffs destitute and close to bankruptcy
and have caused foreclosure of the Lodge
properties by the United States Government.
The relative wealth of the parties is without
comparison inasmuch as the Defendant Tribes
are relatively wealthy Tribes and the Plaintiffs
now have been reduced to bankruptcy.‘ 22]

187

Tribal boundary conditions also variably affected different member
classes. Criteria for voting, for instance, limit who will have
access to the agenda: hence, females in some cases and eighteen
year olds in some cases will be excluded. Political factions which
might be threatened by enfranchising excluded groups are enhanced
(a perception which extends as well to the exclusion of non-members,
such the business interests cited above, from the vote). Criteria
for candidacy also entail various and completing interests. A
residency requirement of elective office candidacy may suit the
purpose of members who want officials to have as complete knowledge
of the constituent area as possible, but it will not be in favor
with those who, after military service, college, or working away
from the reservation, find themselves excluded from eligibility.
Membership criteria may enhance some interests in the tribe who
view exclusion or selective inclusion as a mechanism for controlling
distribution (and depletion) of tribal resources. Excluded individuals,
however, may feel deprived of their Indian heritage and its
concommitant rights.§§/

Tribal individuals and entities who pursue federal remedy have
a number of interests at stake, as discussed. The impact of such
action is not limited specifically to litigants, but can also be
distributed to all tribal members. For instance, a variety of
costs are entailed with due process hearings, a court structure,
jury trial, etc. which tax tribal (communal) resources that could,
alternatively, be used for other purposes. Individuals who bring
action against tribal officials incur more than their own costs.
In flhite v. Tribal C0uncil, Red Lake Band of Chippewa Indians (003376),

an election dispute, plaintiff tribal members point this out:

188

Under a contract entered into between the

law firm . . . and defendants, acting

for the Red Lake Band of Chippewa Indians . . .
Edwards & Bodin are general counsel to the

Red Band of Chippewa Indians and to the

Tribal Council . . . The firm receives
$15,000 per year plus expenses in that capacity.
Presumably, it is under this contract that it
represents the defendants here. Thus, the
plaintiffs will have their money (i.e., the
Tribe's money) spent to contest their rights
to a fair election. 25]

Individuals, in particular indigent members who bring actions against
the tribe, in essense tap federal monies (which fund legal aid
services and programs) in litigation which requires expenditure
of tribal resources. Another type of cost distribution is represented
in United States, ex rel. Cobell where plaintiff Cobell, a non-member,

incurs added cost by virtue of his status as a resident of Montana:

As the record will show, the Blackfeet
Tribal Court is represented through the
Indian Law Program at the the University

of Montana School of Law. Apparently that
representation is being furnished through
the expense of public funds and at no expense
to the Blackfeet Tribal Court. . . we
certainly question the propriety of a State
agency, to-wit, the University of Montana
School of Law, involving itself in an
adversary proceeding of this nature,
especially when it concerns the question

of whether or not the State of Montana

has jurisdiction over the issue at hand

. e!

Factors such as these, and their endless permutations,have a bearing
on interests-at-risk and project the impacts of the ICRA. To
augment the various discussions of this chapter, three ICRA cases
are briefly reviewed. Each of these is representative of various

dimensions of litigated (ICRA) conflict in tribal settings.

189
1. Dodge v. Nakai

"An obnoxious guest has been evicted by his
hosts." 22]

Qggge v. 22221 (001037) was the first ICRA litigation in federal
court and its outcome was significant for ICRA litigation for the
next decade. In August, 1968 Theodore Mitchell, a non-Indian
attorney, was removed from the Navajo Reservation by order of the
Advisory Committee of the Navajo Tribal Council. The events which
inlnediatel'y preceeded his expulsion involved his conduct and that of
a council member at two Advisory Committee meetings where, ironically,
representatives of the Department of the Interior were discussing
the 1968 Civil Rights Act. A query by tribal council member
Annie Wauneka regarding rights of the tribe to remove a non-Indian
from the reservation drew some laughter, as it was apparent that
Wauneka had Mitchell in mind based upon a history of frictions between
Mitchell and tribal officials. Wauneka singled out Mitchell's
laughter, and admonished him for his conduct in Council chambers.
The same meeting continued the next day and in the afternoon session, .
Wauneka approached Mitchell, exchanged some words with him, and
struck him several times. Mitchell left the meeting. The following
day, the Advisory Committee adopted a resolution expelling Mitchell
from the reservation, which was executed.

Mitchell was the program director of Dinebeinna Nahiilna Bo
Agaditahe, Inc. (DNA), a legal aid corporation which is located
on the Navajo Reservation. DNA was federally funded (CEO) to

provide legal assistance to indigent tribal members: most individuals

 

190
of the tribe qualified for service. The legal program of DNA
was unsettling to a number of interests on the reservation: its
involvement in a particular case, a recall petition in a
reservation school district, result in Advisory Committee Action to
remove Mitchell from DNA (this and similar efforts in the months
preceeding his expulsion were not successful). Plaintiffs§Z/
characterized the nature of the incipient conflict between DNA

and the tribe:

Friction arose on the Navajo Reservation

in connection with these legal services.

The plain fact is that as desperately poor
Navajos began to get legal services, they
began to assert legal rights which were
upsetting to those who had previously gained
from the fact that Navajos, for all practical
purposes, had enjoyed no legal rights. The
immediate consequence was that the powers
that be of the Navajo administration sought
first to extinguish the program. Failing in
this, they sought to achieve the same result
by excluding Mitchell from the Reservation. 22]

Plaintiffs argued that the exclusion of Mitchell had several adverse
consequences, among these the denial of Mitchell's legal expertise
and counsel to tribal members, a "chilling effect" on the right
and obligations of DNA to provide independent services to indigent
Navajo members, and denial of basic civil rights.

In response, the tribe argued that the treaty of 1868 gave the
Navajo tribe the right to determine who "shall ever be permitted
to pass over, settled upon, or reside in the territory"§2/ of the
Navajo tribe. Further, defendants argued that Mitchell should

exhaust tribal remedies, and in any case, the ICRA did not apply

191
to non-Indian Mitchell. Where plaintiffs located the significance
of the conflicts in the removal of Mitchell, defendants focused on

the gravity of his conduct:

Deponent specifically denies that there was
general laughter from the audience after

Mrs. Wauneka asked the above referred to
question. Only one person in the chamber
laughed. That person was Theodore R. Mitchell,
and that laugh was not merely a laugh. It

was a Guffaw. It was an expression of

scorn, ridicule, and derision directed toward
Mrs. Wauneka and the entire legislative body.

. Mr. Mitchell was ordered excluded,
solely as a result of his obnoxious conduct
during the legislative session. . . as well
as his subsequent obnoxious conduct. . .
which provoked Mrs. Wauneka into striking
Mitchell in defense of the honor and dignity
of the Navajo people.

. It was Mr. Mitchell' 5 obnoxious conduct,
that caused him to be declared a trespasser,
labeled "person- non- -grata" and led directly
to his being evicted from the private property
and special reserve of the Navajo Tribe. 29]

The broader context of his actions was proposed in the resolution

which excluded him from the reservation:

Such defiance, ridicule, tensions and
violence seems destined to continue and
grow worse, thus threatening the peace
and well-being of the Navajo people and
manifestly leading to grave danger to
the life and health of members of the
Navajo Tribe. ‘21]

Plaintiffs retorted that Mitchell's lifetime exclusion, inconsistent
as it was under the grounds for exclusion of the Navajo Tribal

Code, was the culmination of defendants' efforts to harrass the DNA.

192
The district court, ruling that it had jurisdiction of the matter,
held that Mitchell had been denied due process, and that defendants'
actions had abridged freedom of speech. The court dismissed the
argument by defendants that the Navajo tribe's right to exclude
a non-member was based upon its inherent sovereignty. The ICRA,
it said, imposed constraints upon tribal exercise of power. The
court held that invocation of the power to exclude, on the basis
of personal dislike for the conduct of Mitchell, was unreasonable.

In addition,

. . non-Navajos living on the Navajo
Reservation look to the tribal government
for goods and services normally provided by
state and local governments; the quality

of life for all persons living on the
Reservation is directly affected by the
actions taken by tribal agencies. Under

24 U.S.C. 1302 (1) these individuals
possess the right to express views as to the
wisdom and propriety of the policies and
programs adopted by tribal governmental
agencies. 22/

The court settled upon its own interpretation of the basis of the
dispute, namely, that tribal officials felt that the DNA program
should be directed to protection of tribal members in their extra-
tribal relations, while DNA wished to focus a large part of its
efforts to representation of indigent tribal members before tribal
agencies. Concluding that the resolution to exclude Mitchell was an
unlawful bill of attainder and as such violated the ICRA, the court
enjoined the defendants from implementing the exclusion order.

In reaction to the district court order, the Advisory Committee

of the Navajo Tribal Council passed a resolution to refuse federal

193

funds (0E0) for the purpose of operating the DNA program. The

Advisory Committee's rationale (stipulated in resolution) included,

in part, items related directly to the federal litigation:

On August 8, 1968, the Advisory Committee
permanently excluded Mr. Mitchell from

all lands of the Navajo Tribe for his personal
obnoxious conduct before the Advisory Committee,
and

Following his exclusion, Mr. Mitchell brought
a lawsuit against the Chairman of the Navajo
Tribal Council in Federal Court, in which

he challenged the right of the Navajo Tribe,
under the Treaty of 1868, to evict non-Navajos
from the private property of the Navajo Tribe,
and

As a result of this lawsuit, the sovereignty
of the Navajo Tribe, and the absolute right
of the Navajo people to be secure from
outsiders on their reservation, has been
placed in jeopardy, and

This lawsuit has injured not only the Navajo
Tribe, but every individual Navajo, and . .

§_3_/

The interests-at-risk in Dodge v. Nakaig—y stood in stark

contrast to each other, and included the following:

1.

The power of the tribe to control the domain of legal
advocacy (and deflect interference from the exercise

of tribal self-governance) versus the power of advocacy
on behalf of tribal individuals to control the
administrative agencies of the tribe;

The immunity from suit of a tribe in its exercise of
sovereign powers versus the rights of individuals
adversely affected 5y tribal self-governance to have
redress and remedy;

The power of the tribe to control the activities of non-
members on the reservation versus the rights of non-members
to conduct, within the contraints of the constitution

and laws of the tribe, their affairs unfettered; and

194
4. The power of the tribe to exclude a non-member from the
reservation versus the rights of the non-member to due process
and equal protection.
Each of these conflicts involve distinct boundary conditions. Their
resolutions, imposed and sanctioned by the federal court were

decidely skewed to an interpretation of the ICRA as license for

federal intervention in tribal affairs.

2. Peoples Committee of'Taos Pueblo v. Tribal Council of Taos
Pueblo

 

In August, 1974 the Taos Pueblo Council enacted a zoning measure
entitled "Ordiance Governing the Installation of Electrical Service
on Taos Pueblo Lands." The enactment set specific boundaries within
which installation of service lines was prohibited. Generally,
electric service line agreements were to be subject to review and
approval of the General Council, construction of service lines
required the consent of individual Taos members whose land assignments
such lines would cross, all power lines were to be installed
underground, and pre-existing service in the newly designated
restricted zones was exempted from the Ordinance until such time
that the property is sold (the exemption shall cease). The stipulated

purpose of the Ordinance is as follows:

Taos Pueblo is unique in having preserved
through the centuries the natural beauty of
the community and its lands, and the cultural
and religious heritage of its people
associated with certain areas of traditional
activities. This ordinance is intended to
protect these unique values for future
generations by establishing zones and
regulations for the installation of electrical
service. §_§_/

l95

A complaint was lodged in federal court by individual members
(an unincorporated group, Peoples Committee of Taos Pueblo) alleging
that the ordinance was, and was applied in an arbitrary and capricious
manner. Plaintiffs, representing a class of individual Taos members
within the restricted zone who desired electricity, cited violations
of basic civil rights, due process and equal protection. It was
claimed that some interests within the restricted area had electricity,
that other interests had been specifically allowed by Council to have
electricity, and that the plaintiffs were summarily denied electrical
service. The federal court was asked to intervene and enjoin
defendants from refusing or failing to grant service permits to
residents of the restricted zone, and to declare the Ordinance,
which as enacted violated the ICRA, null and void.

The controversy over zoning in Peoples Committee of Taos
Pugblg_v. Tribal Council of Taos Pueblo (002850) appears conspicuous,
in that Taos society is highly structured both physically and
socially. Contending parties readily admitted to this. Plaintiffs
and defendants were far apart in their basic contention in the case,
regarding the impact of electricity on Taos culture, particularly

religion. In addition,

. . Plaintiffs believe that in this day

and age, electricity and electrical services
have become a necessity. While the Council
is within constitutional bounds in regulating
the placement of power lines (underground)
for aesthetic and cultural reasons, they are
surely outside those bounds in denying these
services to certain tribal members while
allowing them to many others. §§/

l96
Defendants responded to allegations that the enactment and enforcement
of the Ordinance was arbitrary by reviewing the history of electrical
services on the Pueblo. In the l930's, the BIA had requested to install
an electrical line to service the BIA day school in the Pueblo.
They were initially refused permission, but after the BIA threatened
to remove Taos children to a BIA boarding school a considerable
distance away, the Pueblo relented. The Pueblo attempted, some years
later, to remove the electrical line but were prevented from doing so
by residents who had connected to the BIA line “in violation of the
customary, unwritten, prohibition of electricity."§2/ In l969, the
Pueblo Council authorized electricity for the western zone of the
Pueblo, away from the sacred wall which circles the inner village
of Taos Pueblo.

Defendants were careful to make the distinction between a
prohibition against electricity and a prohibition against the
construction and installation of electric lines. The Ordinance,
designed to accomplish the latter within restricted areas, did not
terminate the use of electricity from butane generators, car batteries,
or existing electrical lines (most of which were connected twenty-five
or more years previous). In retort to plaintiffs' allegations that n
the general welfare of the Pueblo was compromised by the Council's
action (e.g., children are denied adequate light to study with at
night), defendants posed an alternative interpretation of the general

welfare of the Pueblo:

The prohibition of electric service lines

in the restricted zone is necessary to
protect a religious area containing numerous
shrines and sacred places from desecration or

197

destruction as a result of the disturbance

of earth required to install and maintain the
lines and incidental equipment and of the
intrusion of an uncontrolled and continuous
commercial activity which is inconsistent

with ceremonies based upon the natural
environment. Home generators or portable
equipment do not threaten destruction of shrines
and they may be turned off during religious
ceremonies. QB]

The court's findings regarding the merits of the case were
straightforward: the impact of electrical service on Pueblo

religion was a matter for tribal (Pueblo Council) interpretation:

It is inappropriate to call upon a civil
tribunal to determine the religious
significance of electricity. . . . The
legislative intent of the I.C.R.A. was

to preserve theocratic forms of government
and not to force a separation of religious
and secular functions in the Pueblos. g2]

The substantive allegations by plaintiffs, the court noted, failed
as well; the Ordinance which zones the Pueblo into eastern and
western zones and treats them differently is reasonable, and evidence
to indicate arbitrary application and enforcement of the Ordinance
is lacking.

Though unique in some superficial respects, the Peoples
Committee of Taos Pueblo case is representative of a larger proportion
of ICRA cases which involve intratribal disputes. It is distinctive,
however, in its pointed illustration of a subtle boundary condition,

information. Considera disclaimer of the court:

 

Little is known about the Taos religion.
Neither plaintiffs nor defendants are

 

198
willing to talk about religion beyond
stating opinions on the ultimate issue and
a few basic tenets. I do respect this view,
but must observe that the evidentiary loss

will tend to fall on the party who carries
the risk of non-persuasion on an issue.

Plaintiffs and defendants contested the impact of electrical service
on Taos religion without specifying in ggy_detail the constituent
elements (beliefs and practices) under consideration. The proposals
before the court were that electrical service would have an adverse
effect upon religion, or it would not have an adverse effect. Non-
Indian experts at the trial also lacked information of Taos religion
and could only speak generally to its importance in the daily life
and vitality of the Pueblo. Withholding such information on the part
of the Pueblo effectively defines "outsiders" who are excluded

by their ignorance. In federal litigation, the reluctance or

refusal of disclosure of this genre underscores the imposed nature

of sanctions such as the ICRA. Litigants, in choosing not to
reveal information, took the risk that their case might fail on
merits because such information was vital. Their alternative posture
might have been to disclose information concerning Taos religion,
thereby decreasing the risk of an unfavorable court ruling. But
there is cost involved here as well, namely, coerced disclosure
(i.e., the risk factor -- Anglo courts value "discovery" and
comprehensive displays of information). It appears as well that the
federal court perceived an information cost as non-disclosure
impinged upon the substantive material facts of the case from which

a ruling had to be based. The lack of information did not, however,

prevent the court from rendering a decision regarding an intra-tribal

 

199
dispute which may not have been, to an appreciable degree,
specified for the court. Information -- be it knowledge of the
particulars of a case, or tribal history and customs, or an understanding
generally of the indigenous milieu -- is a basic boundary condition.
Figuratively, the distance between the federal court and the intra-
tribal affairs it portended to regulate, varied with the level of
information. If the implication here is that better information
will yield better court decisions, one must objectively consider the
refusal of disclosure coupled with the lack receptivity to types of
infbrmation (e.g., historical incorporation of indigenous groups)

as rather dismal indicators of the thrust of imposed sanction.

3. Santa Clara Pueblo v. Martinez

The Santa Clara Pueblo, reacting to the increasing number
of mixed marriages and a general increase in tribal population,

enacted the following ordinace in 1939:

Be it ordained by the Council of the Pueblo
of Santa Clara, New Mexico, in regular
meeting duly assembled, that hereafter the
following rules shall govern the admission
to membership to the Santa Clara Pueblo:

1. All children born of marriages between
members of the Santa Clara Pueblo shall
be members of the Santa Clara Pueblo.

2. All children born of marriages between
male and members of the Santa Clara Pueblo
and non-members shall be members of the
Santa Clara Pueblo.

3. Children born of marriages between female
members of the Santa Clara Pueblo and non-
members shall not be members of the Santa
Clara Pueblo.

 

200
4. Persons shall not be naturalized as

members of the Santa Clara Pueblo
under any circumstances. 21]

At issue were dwindling tribal resources and increasing tribal
membership: the limited amount of grazing land available to support
viable livelihoods was the most acute manifestation of these factors.
Individual members of the Santa Clara Pueblo, Julia Martinez
(representing herself and females who were members of the Pueblo

who had married males who were not members of the Pueblo) and

Audrey Martinez (representing herself and children born of a marriage
between a female member of the Pueblo and a male who is not a member
of the Pueblo) initiated a complaint in federal court in 1972 against
the Pueblo alleging that the membership rules discriminated on the
basis of both sex (Julia) and ancestry (Audrey) in violation of the
ICRA. Julia Martinez had married a Navajo Indian and settled at

the Pueblo in l941, two years after the tribal ordinance was enacted.
She had ten children who were born and raised on the Pueblo, eight
of whom were living. These children spoke the Tewa language,
participated in all aspects of Pueblo life (including religion), and
considered themselves Pueblo. However, they were not members of the
Pueblo by virtue of the tribal ordinance which excluded children

of a female member'who marries a non-Santa Claran. Hence, the Martinez
children could not v0te in tribal elections, could not hold office

in the tribe, could not inherit their mother's home or interests in
the communal lands, nor (it was alleged by plaintiffs) would they be
entitled to remain at the Pueblo in the event of their mother's

death.

201

Since 1946, Julia Martinez had attempted to enroll her children
(or to have her husband naturalized, which would accomplish the same)
by purusing tribal remedies, and appeals to the BIA and a U. S.
Senator. These efforts were without success. The initial complaint
in federal court was precipitated by a Housing and Urban Development
program to which plaintiffs were denied benefits as a result of the
exclusion of the Martinez children from tribal membership. The housing
controversy was settled out of court, but plaintiffs pursued a legal
remedy for the enrollment question. Enrollment criteria prior to
1939 held that children of mixed marriages could be recognized and
adopted by the council, and that persons could be naturalized and
hence gain membership (e. g., the non-member spouse). Plaintiffs
alleged that the new criteria which adversely affected them was a
significant departure from Pueblo tradition, based upon economic
factors and not custom. The Santa Clara Pueblo responded with four
arguments to support their compelling interests, based upon
preservation of the cultural and religious heritage of the Pueblo.
They asserted that the Santa Clara Pueblo society was partilineal
(e. 9., it was customary for females to accompany and settle at their
husband's home), that male parents were more important than female
parents in the religious rearing of Santa Claran children, that
the l939 Ordinance was a codification of pre-existing rules, and
that the 1939 Ordinance was fully integrated into the religious
life of the Pueblo. Despite considerable challenge to the authenticity
of such assertions by the plaintiffs (who drew, for example, from
the research of a Santa Claran and other Tewa member anthropologists),
the district court -- which accepted jurisdiction -- held in favor

of the Pueblo:

 

202

. . the equal protection guarantee of the
Indian Civil Rights Act should not be
construed in a manner which would require
or authorize this Court to determine which
traditional values will promote cultural
survival and therefore should be preserved
and which of them are inimical to cultural
survival and should therefore be abrogated.
Such a determination should be made by the
people of Santa Clara; not only because they
can best decide what values are important,
but also because they must live with the
decision every day. Obviously they can and
should be the judges of whether a particular
rule is beneficial or inimical to their
survival as a distinct cultural group . . .

. . . to abrogate tribal decisions,
particularly in the delicate area of
membership, for whatever "good" reasons,

is to destroy cultural identity under the
guise of saving it. . . .12/

The court of appeals disagreed with the district court on the merits
of the case, and reversed the decision: "There is evidence that

the ordinance was the product of economies and pragmatics."Z§/

It could find no reason why the invideous distinction on the basis
of gender was justified by a compelling tribal interest, "patriarchial
traditions" and the need to protect Pueblo resources notwithstanding.
Santa Clara Pueblo pursued the case, and in 1978, the Supreme Court
reversed in favor of the Pueblo. Its opinion would end the majority
of intratribal litigation in federal court. The court ruled that
congressional intent regarding the ICRA limited intervention in
tribal affairs to habeas corpus ("Congress' failure to provide
remedies other than hagga§.ggrpu§_was a deliberate one" Zfl/)and

that suits against the tribe under the ICRA are barred by its
sovereign immunity from suit. It appears appropriate that the

issue of Martinez, a most basic boundary condition of tribal

 

203
membership, was the occasion for such a decisive ruling. The seven
Amicus briefs filed with the Supreme Court, representing some fourteen
tribes and Pueblos, and several organizations and entities, juxtaposed
the right of a tribe to define itself and its appropriate conduct
with the limitations upon tribal self-governance which derive from
individual civil rights.

The clear message of the Supreme Court was that the ICRA was
binding upon Indian tribes, but that tribes and not federal courts
(except for habeas corpus) were responsible for its enforcement.

By implication, the adjudication of intratribal disputes was left

to the exercise of tribal self-governance. In the absence of federal
court intervention between Indian tribes and their members, one
might argue that risks and costs are redistributed, and are far

less of an impediment to tribal exercise of sovereignty than in the
decade preceeding Martinez. The court's ruling, however, contained

a somber warning which suggests an alternative interpretation:

. . Congress' authority over Indian matters
is extraordinarily broad . . . Congress
retains authority expressly to authorize
civil actions for injunctive or other relief
to redress violations of § 1302, in the event
that the tribes themselves prove deficient
in applying and enforcing its substantive
provisions. Z§/

204

Notes

See Chapter One, pp. lO-l4.

Include among these proposals where natural parents have no
standing before the law with regards to their children.

See, for example, "Suggestions for Some Provisions of a Child
Placement Code" at para. 10.4, in Goldstein, Freud and Solnit,
Before the Best Interests of the Child (New York: The Free
Press,*l979).

Senator Ervin, upon introducing amendment No. 430 to the
Senate:

Mr. President, this will be a very interesting
amendment in its present context. It gives the
Senate an opportunity to show whether it believes
in constitutional rights for the red man.

The reservation Indian now has no constitutional
rights. The purpose of the amendment is to
give these Indians constitutional rights which
other Americans enjoy.

114 Congressional Record 5836 (1968).

l960's civil rights legislation (ofwhich the ICRA is one

example) would include the Civil Rights Act of 1960 (74 Stat. 86),
the Civil Rights Act of 1964 (78 Stat. 241), the Voting Rights
Act of 1965 (79 Stat. 437), and the Civil Rights Act of 1968

(82 Stat. 73).

See Chapter Five, p. 125.

The research did not reveal instances where attorney and court
fees prevented the initiation or continuance of litigation.
Obviously, however, an examination of court case files would
not reveal the conflict which was not amplified in a federal
case because of monetary considerations. Hence, the impact
of this type of cost cannot be summarily discounted.

Hall's conclusions, based upon approximately seventy-five

ICRA cases, are in most respects consistent with the

author's findings. The specific strength of Hall's research

is his explication of the implications for tribes, particularly
tribal courts, of the Martinez decision.

The ade'uac of these remedies was often passed upon, however,
and 1n some cases the exhaustion requirement was waived because
tribal remedies were judged inconsistent, contrived, not
available in an instant case (e.g., where litigation involved
the conduct of tribal judges), or absent altogether.

 

 

205

Notes (cont'd)

10.

11.

12.
l3.
14.
15.
16.
17.
18.
19.

20.
21.
22.
23.

24.
25.
26.

27.

27a.

This authority is given in Section 16 of the Indian Reorganization
Act (48 Stat. 984).

Complaint for Declaratory Judgment, Injunction, and Damages
(OOlZO6-A).

Complaint For Declaratory Relief; For Temporary Restraining
Order; For Preliminary and Permanent Injunction; For Damages;
and for Other Relief (OOZOOZ-A).

Ibid., Attachment 1.

Brief of Appellees (002901-0).

Over one—third of ICRA cases were heard in the Eighth Circuit.
Memorandum Opinion (OO3535-A).

Verified Complain (OOlOlS-A).

The Navajo Tribe was later named a party defendant.

Opinion and Order (District Court) (001492-0).

Brief of Washington Department of Fisheries and Washington
Department of Game, Amicus Curiae (001213-P).

Opening Brief of Appelants (OOlZl3-Y).
Opinion (001213-FF).
Amicus Curiae Brief of the State of Montana (OOlGOl-W).

Memorandum in Support of Motion for Preliminary Injunction
(002367-C).

Amended Complaint (002438-E).

Memorandum in Support of Right to Seek Election (OOllO7-F).
Various class actions against tribal officials represent
coalitions as well. For example, Wo sock v. Uintah and
Gum Tribal BuSiness Conmittee (O was an action
concerning petitions of one:third of the tribes to recall
the entire Business Committee.

Memorandum Opinion (003697-A).

Brief in Support of Motion to Dismiss (OOlOBO—F).

 

206

Notes (cont'd)

28.
29.

30.
31.

32.
33.

34.
35.
36.

37.
38.
39.
40.

41.
42.

Memorandum and Order (OOBOSO-Q).

Brief for the Honorable John A. Sharp and the Blackfeet Tribal
Court (OOl60l-O).

Memorandum Decision and Order (OO3l47-A).

In Williams v. Chippewa Cree Tribe (003536) plaintiff alleged
that the tribe had retroactively applied an ordinance which
effectively denied her application for enrollment. The tribe,
arguing that it alone had authority to establish a current
enrollment for distribution of tribal assets, was rebuffed

by the federal court:

 

A decision concerning the substantive
right to be enrolled, the requisite
indicia of Indian heritage having been
established, is a matter which cannot be
treated lightly by the tribe. The right
to enrollment is itself a property right
(Memorandum and Order (OO3536-O)).

Memorandum Opinion and Order (OOlGOl-H).
Plaintiff's Memorandum of Points and Authorities in Support

of Motion for Temporary Restraining Order and Injunction
Pendente Lite (OOlOlS-C).

 

Brief of Appellant Gilbert Cliff (002924-0).
Memorandum Opinion (003083-E).

Brief in Opposition to Dismissal of Petition for Writ of Habeas
Corpus (00359l-G).

Memorandum Opinion (002857-A).
Brief Amicus Curiae of Marvin J. Sonosky (002137-H).
Petitioner's Reply Brief (003083-0).

Plaintiff's Brief on Issues Raised at Argument on October 29, 1974
(OO3376-C).

Appellant Brief on Appeal (002835-A).

Memorandum of Law in Support of Petition for Habeas Corpus
Relief (OOlO77-B).

 

207

Notes (cont'd)

43.
44.
45.

46.
47.
48.
49.
50.
51.

52.
53.

54.
55.

56.
57.

58.

Memorandum Opinion (003623-A).
Complaint (002189-A).

Memorandum in Support of Motion to Dismiss or for Partial
Summary Judgment (OO300l-B).

Brief for Appellees (002506-H).
Memorandum Decision (OOll49-D).
Memorandum Decision (002261-A).
Reply Brief of Appellants (002438-M).
Brief of Appellants (002137-E).

Brief of the Mountain States Legal Foundation -- Amicus Curiae
in Support of Petitioners (OO3553-HH).

Brief of Appellants (002438-K).

Some of these rights are given monetary value, as in Markovich v.
The Puyallup Indian Tribe (003001) where plaintiffs asked for
$50,000,000 damages because they were denied status as members

of the tribe. Claims in all areas of ICRA litigation included
declaratory and injunctive relief damages (compensatory and
punitife), and costs. The change in status quo (the interpretation
of Congressional intent regarding ICRA that tribes were no longer
immune from suit) had new implications for judgments against the
tribes. When these involved money, for instance, the cost

was absorbed by all tribal members, irrespective of their degree
of culpability.

Plaintiffs Brief on the Issues of . . . (003376-A).

Brief in Opposition to Motion to Stay Proceedings and in
Opposition to Motion to Dispense with Appropriate Bond
(OOl60l-N).

Brief of Appellant (OOlO37-PP).

The three plaintiffs were a class of indigent tribal members
who receive services from DNA, DNA and eight Navajo Indians
were serve on its board of directors, and Mitchell. The
defendants were Nakai, Chairman of the Navajo Tribal Council,
the Superintendent of the Navajo Police Department, and the
Area Director (BIA).

Brief of Appellees (OOlO37-QQ).

208

Notes (cont'd)

59.
60.
61.
62.

63.

64.

65.
66.
67.
68.
69.
70.
71.
72.
73.
74.
75.

15 Stat. 667.
Admission of Facts and of Genuineness of Documents (001037-A).
Brief of Appellees (OOlO37—QQ).

Opinion, Findings of Fact, Conclusion of Law and Judgment
(OOlO37-KK).

Plaintiffs Supplemental Bill (OOlOB7-MM). The program was
funded directl to DNA in the program year 1968-1969 without
going through the Office of Navajo Economic Opportunity.

Defendants appealed the district court decision, but appellants
and appellees later stipulated to dismissal of appeal.

Complaint (002850-A).
Brief in Opposition to Defendant's Motion to Dismiss (002850-C).
Memorandum Opinion (002850-P).

Motion for Summary Judgment (OOZBSO-M).

Memorandum Opinion (002850-P).

Ibid.

See Memorandum Opinion on Jurisdiction (001565-0).
Ibid.

Memorandum Opinion (001565-K).

‘Opinion of the Court (001565-Z).

Ibid.

CHAPTER SEVEN
SUMMARY AND CONCLUSIONS

The foregoing analysis addresses several general themes which
bear upon the historical and contemporary relations between indigenous
peoples, and tribal and extra-tribal social matrices. Types of
conflict which are projected in adjudication of the ICRA involve a
variety of tribal institutions and individuals, and non-tribal
entities and individuals variably affected by and affecting tribal
self-governance. However, these themes (proposed in Chapter One)
are not limited to a single legislative enactment, but are applicable
to a broader genre of socio-legal interdependence: they may be
summarized as follows.

The legal system is a social construction which embodies
relations between socially-defined human aggregates on the basis
of the historical development of material conditions. The opportunity .
structure of a legal system articulates avenues of social action -
which are adequate for the satisfaction or operationalization of
some interests, and less adequate for other interests. A legal
system is a sociocultural formation, a product of processes whose
distributional manifestations define the opportunity structure.
The accelerated development of European ethnic colonial peoples,
and the concomitant progressive underdevelopment of indigenous

peoples in the territorial United States is aptly chronicled in
209

210

the elaboration of a legal system which reflects l) the production
and reproduction of the material requisites of a type of development,
2) (the regulation of human conduct condusive to such development,
and 3) the transcription of this preferred societal development
into beliefs and values (legitimation).

The legal system, which projects competing interests, ensures
not only that some interests are dominant and other interests are
less dominant, but that a subset of interests in a legal system are
buoyed at the expense and exclusion of other interests. Hence,
human conduct in pursuit of some interests is sanctioned and prescribed,
while other types of human conduct, in pursuit of less salient
interests, are proscribed. The historical incorporation of indigenous
peoples into U. S. development has subvertedaabroad spectrum of
interests, values and behaviors adjudged inconsistent with national
development strategies. Generally, indigenous peoples lost control
of their own destinies and increasingly became dependent upon others
[include here dependence on imposed tribal structures, such as tribal
councils and court systems tailored to values exogenous to tribal
custom] for basic survival. Tribal enthocentric values, ways of
thinking and behaving, and tribal institutions were undermined and
abandoned in the wake of domination, and were redefined and externally
sanctioned as the requisites of national development changed.

The progression of accelerated national development which
required underdevelopment of tribal peoples is a dialectic embodied
in the historical exposition of international and national law and
policy regarding indigenous populations. The crux of the dialectic

in the sphere of law is legitimation of authority i. e., where

21l

mechanisms for ensuring compliant behavior and for restricting the
very definition of the universe of possible human action are
institutionalized to present a reasonable, natural and functioning
social environ. The converse, delegitimation of forms of authority
which threaten to encumber the preferred status quo (or trajectory
of societal develOpment), is equally vital. The relative power of
competing indigenous peoples and European ethnic colonial groups was
determinant for whose defintion of legitimate social order and
authority was to prevail. The elaboration and impact of imposed
law and policy, integral to the historical incorporation of indigenous
populations, is developmentally consistent and represents a continual
erosion of tribal sovereignty and jurisdiction. Even momentary
disjunctive interludes, where law and policy deviate from the
progressive delegitimation of tribal sovereignty and jurisdiction,
are spawned by the (uneven) development of sociocultural formations
and are crucial to their long-term maintenance.

Far from integrating indigenous peoples into national societies
(as 20th century policy-oriented research and action purports to do)
the proliferation of laws and legal institutions consolidate narrow
interests, mitigate against or frustrate competing interests,
exacerbate cleavages -— in short, undermine tribal self-governance
by imposing exogenous prescriptions of social order that create
prevalent disorder in tribal life and maintain the marginal socio-
legal status of indigenous peoples in transnational and national
development. It is this system of law which projects inequalities
among socially defined racial and ethnic groups, consistent with
the terms of their participation in developmental processes. Such

inequalities are not aberrant social forms, but are rather

 

212
manifestations of l) the transplantation of relatively homogeneous,
concentrated European ethnic groups who substituted themselves for
indigenous populations, and to varying degrees decimated tribal
peoples and their institutions rather than absorbing them, and
2) the interest of indigenous peoples in aspects of their own
survival (physical, cultural, etc.) which extends beyond the
parameters of sanctioned conduct and goals -- this removes indigenous
peoples from the arena of effective determination and execution of
their interests. The ascendency of some racial and ethnic groups
within developmental processes has been assured through a legal
system which facilitates the underdevelopment of other racial and
ethnic groups whose interests and power are in relative decline.
Inequality is endemic to such a legal system: the social history
of indigenous peoples illuminates the instrumental role of the rule
of law in the processes of underdevelopment which embody it.

From the sphere of social action emerges sets of rights and
institutions which orchestrate human conduct. Civil Rights, most
often framed as emancipatory and immutable, are delimited by the
social system which accelerates the development of some groups at
the expense of other groups. Civil rights specify arrangements of
rights and institutions which regulate human interdependence: the
resulting opportunity structures are compatible with dominant
conceptions of human order and control which reflect little of -- and
actually mitigate against -- alternative (and competing) formulations
of human institutions. Civil rights are arbitrary to the extent
they legislate the preferred boundaries of sanctioned human conduct.

The Indian Civil Rights Act, pursuing a general theme of federal

213
incursion into the affairs of tribal self-governance, stipulates
not only the diminuations in the exercise of tribal sovereignty
and jurisdiction, but regulates a wide arc of human relations.
ICRA adjudication highlights the conflicting interests of tribal
and non-tribal individuals and entities in disparate interpretations
of the public good, in basic boundary conditions such as membership,
eligibility for tribal office, and the vote, and in the exercise
of authority and administration of justice. The emancipatory and
repressive impacts of the ICRA are causally linked: within a logic
of societal development and concomitant underdevelopment, the Act
protects some interests at the expense of other interests, and
sanctions and regulates the opportunity structure within which human

interdependence takes its course.

Socio-Legal Impact: Supplementary Strategies

In the best of all possible worlds, decisions regarding
institutional design and institutional performance would be based upon
at least three broad categories of information. These would include
knowledge of 1) the performance of existing institutions and their
evolution, 2) alternative methods of affecting performance, and
3) consequences that may result from each alternative. The preceeding
discussion has only partially satisfied this regimen by examining a
single alternative -- one which is legally sanctioned -- and exploring
some dimensions of its impact. Socio-legal impact is significantly
more complex, and additional areas of requisite inquiry are proposed.

It is apparent that omnibus legislation, such as the ICRA, when

214
imposed upon tribes in the United States, will not have a singular
impact upon all indigenous peoples. The point, of course, is the
variability of Indian tribes regarding methods of self-governance,
court structure, systems of control, and the like. Omnibus legislation,
prevalent in federal Indian law, is not designed to speak to the
variability among tribes, but rather legislates against it. Disparate
institutional performance should be expected. For example, we might
wish to contrast "traditional civil liberties" (customary law) with
the "alien imposition of civil rights" (ICRA) as a means of establishing
existing institutions and their evolution. This would, to a degree,
underscore many substantive distinctions between tribal groups:
however, the polarity (customary law or imposed law) belies complexity
in tribal practice. There are, to be sure, a number of tribal groups
who may be said to function within a customary, traditional framework
of social order (e.g., Pueblos). Here, institutional maintenance is not
predicated upon civil rights or liberties, but may in fact be threatened
by the pressures of such rights. In these tribes, the individual
has no meaning beyond the group identity and welfare. "Power" or the
"state" are not removed from individual members where it must be
"checked“ by individual rights. The best interests of the tribe
are pre-eminent: civil rights are non-tribal and anti-tribal (g_la_
Clastres, 1977, society against the state -- see Chapter Three). By
and large, however, the contemporary status of most indigenous tribes

is skewed to an Anglo or colonial model of social control:

Obviously, it is difficult, if not impossible, to
talk about traditional law or traditional order
apart from or independent of the influence of Anglo
law and order. These societies have changed and
changed immensely over the last hundred and two-

215
hundred years. Tribal councils are often a
creation of American imposition as is the tribe
itself. What are deemed to be traditional methods
and traditional functions may only be patterns
which have arisen within a community over the

last forty or fifty years all under the direction
or suggestion of Anglo intervenors. l/

The Anglo model 2!

has been incorporated to varing degrees, from the
Navajo Tribe with its elaborate court system and proposed Department

of Justice to tribes who have lost, as a result of domination,
indigenous institutions (a prerequsite of the Anglo model) but which
have not substituted anything in their place. It is reasonable to
suggest that the ICRA will have different types of impacts and receptions
across this range of tribal differences. In some situations, the ICRA
is not particularly foreign to the status quo of tribal self-governance
where tribal structures mirror counterparts in the dominant society.

It is suggested §/ that where the federal government imposed the Indian
Reorganization Act, tribal codes written by the Department of the
Interior, etc. but offered no way to control entities such as tribal
councils, that even traditional members of tribes may have applauded

the ICRA as a type of needed limitation on tribal governance. In more
traditional tribal settings, the ICRA was an outrage as definitions of”
fundamental fairness in an Anglo tradition were at serious odds with
equally stylized precepts of traditional groups. In summary, the
elaboration of these and similar points contributes to a more realistic
display of status quo performance and establishes a framework from which
to assess variable impact of omnibus imposed law.

The impacts of the ICRA, as proposed (Chapter Six) suggest several

areas of further inquiry which may add to the inventory and extent of

216

consequences for institutional performance. With regards to evolving
tribal structures, it would be useful to establish what changes in
tribal substantive law may have occurred as a result of the threat of
federal intervention. For instance, the relationship of tribal entities
to non-tribal interests should have eased considerably with enactment
of the ICRA e.g., the requisite upgrading of tribal courts and the
federal remedy may have encouraged non-member business endeavors
on reservations, as legal remedies appeared more accessibly or
resembled more closely Anglo counterparts. In the wake of Martinez
(affirmation of tribal sovereignty; limitation of the federal remedy)
it may be possible to determine if demands by non-member businesses
have increased (e.g., negotiation becomes much tougher, tribes are
expected to FEllanISh some sovereign control) because federal remedies
appear again to be unavailable.

The relationship of the ICRA to tribal sovereignty and jurisdiction
might be specified more clearly by establishing its variable impact
upon tribes along a continuum, ranging from undermining self-determination
to strengthening self-determination. Self-determination, to the very
limited extent it represents a federal Indian policy, appears
compromised because decisions on how to protect individual rights
are legislated to the tribes and sanctioned by the federal courts. On
the other hand, for tribes without any types of checks upon imposed
tribal governance, the ICRA. despite its flaws, functioned as a limitation

on the powers of self-governance: hence, in absence of traditional

internal controls, the Act may in the long run strengthen self-governance -
(e.g., improve by coercion). For instance, faced with the possibility

of additional federal intervention in tribal affairs,&/ tribal courts

217

may deem previously excluded or discounted interests more salient.

Similarly, the impact of the ICRA on the tenor of intratribal
affairs may be further investigated by isolating consequences which
undermine tribal unity by encouraging intratribal disputes, and/or
consequences which strengthen tribal unity by mitigating abuses of power
and authority. Some factors which appear to undermine tribal unity
have been discussed, such as intratribal boundary disputes, delegitimation
of authority, and the like. The role of the ICRA in curbing abuse and
excess in tribal self-governance should be carefully considered as well.
In some instances the ICRA may have offered a remedy which defused a
volitile intratribal situation which, without an available avenue
to vent hostilities, may have resulted in a violent confrontation.
That intratribal affairs reach such a pitch (as they did on Pine Ridge
and Red Lake, for example) should not be surprising. Where the federal
government designates a tribal structure (tribal council), dispenses
funds through increasingly powerful tribal councils (and in the process
funds the problem) and refuses to do anything to curb abuses by those
it empowers, Indian regimes often run roughshod over tribal members,
particularly those who oppose their control of tribal affairs. '
Previously (Chapter Six), these were labeled "political disputes." In
actuality, such relations are immeasurably more complex and derive from
the historical incorporation of indigenous peoples. Robert Thomas,

quoted in Schusky (1970) describes Pine Ridge:

Nearly all former (Pine Ridge Sioux) institutions
on the local level have disappeared. The small
Sioux community is hardly even a community. It is
a kin group without the aboriginal institutions
which once related them to their environment, and
no substitute institutions have developed in their

 

218

place. New institutions have been preempted by
outsiders. The old Chief's Council is non-
functional. The warriors' societies have long
since disappeared and the local police force is
seen as a foreign and illegitimate coercive force.
Thus, few (practically no) means of social control
are left to the local Sioux community.

A major inStitution, which has been in recent

years introduced into the community by the federal
authorities, is the tribal government. From the
viewpoint of the country Sioux, this new institution
is "The Tribe." In many ways they look at it in

the same way that many urban working class people
look at the police force and city government. They
see it as a foreign coercive feature of their daily
lives. To the older Sioux, the tribal government
gets in the way of their personal approach to the
powerful and benevolent federal government. The
country Sioux certainly do not see the tribal council
as representing them nor as making decisions for
them. Tribal councilmen are elected to "get
something" from the Bureau of Indian Affairs.

But the main difference between Sioux tribal
government and government in other American
communities is that the Sioux tribal government
is, in effect, without power. Most of the day
to day decisions about Sioux life, about roads,
schools, relief, are made by Bureau personnel.
And information about such decisions are in
Bureau files. Further, what decision the tribal
council makes is subject to approval by the
Secretary of the Interior. (43-44)

Even within such a bleak context, it is argued that the ICRA can have "

a positive impact of tribal affairs. David Getches elaborates:

The Indian Civil Rights Act can actuall strengthen
tribal governments 1f it is used proper y because

it will give them greater respect from their own
members. In many places, on the Sioux Reservations,
for instance, the individual tribal members do not
have alot of respect for their tribal government
because they have either been mistreated or they see
people, who they believe are ripping—off benefits of
money from the tribe as a result of their position,
indulging in nepotism , and the like. The straighter
the tribal governments are the more they are going

219

to command the respect of tribal members and
be enduring institutions. §/

A sobering point, however, is that the ICRA does not appear to mitigate
abuses of power and authority by strong regimes. Though they may not
prevail on some points, they more than compensate for their losses

within the system of opportunities. Of the total sphere of opportunities,
the ICRA affects only a portion of that structure: the interconnectedness
of rules and laws -- which warrants rigorous analysis -- will have
considerable bearing on the socio-legal impact of any single legislative

enactment.

220

Notes

1. Monroe Price.(Personal correspondence, 26 July 1981).

2. Alvin Ziontz proposes that the bases of difference between Anglo
and traditional tribal perceptions of law (due process and equal
protection) are formalism, individualism, lawyers, and subtle
reasoning.(Personal correspondence, 30 June 1981).

3. Tim Coulter. (Personal correspondence, 30 June 1981).

4. The Supreme Court decision in Martinez implied such a threat
(see Chapter Six, p. 203).

5. David Getches. (Personal correspondence, 25 June 1981).

 

APPENDICES

APPENDIX I

Convention 107
Convention Concerning the Protection and Integration of
Indigenous and Other Tribal and Semi-Tribal Populations
in Independent Countries (ILO)

Recommendation 104
Recommendation Concerningthe Protection and Integration
of Indigenous and Other Tribal and Semi-Tribal
Populations in Independent Countries (ILO)*

Final Resolution

 

(International NGO Conference on Discrimination Against
Indigenous Populations in the Americas)

Declaration of Principles for the Defense of the Indigenous
Nations and Peoples of the Western Hemisphere

(International NGO Conference on Discrimination Against
Indigenous Populations in the Americas)

Declaration of the Indigenous Peoples

(Fourth Russell Tribunal)

221
A. Convention 107

Convention Concerning the Protection and Integration of
Indigenous and Other Tribal and Semi-Tribal Populations
in Independent Countries (ILO)

The General Conference of the International Labour Organisation,

Having been convened at Geneva by the Governing Body of the International
Labour Office, and having met in its Fortieth Session on 5 June 1957,
and

Having decided upon the adoption of certain proposals with regard to
the protection and integration of indigenous and other tribal and
semi-tribal populations in independent countries, which is the sixth
item on the agenda of the session, and

Having determined that these proposals shall take the form of an
international Convention, and

Considering that the Declaration of Philadelphia affirms that all
human beings have the right to pursue both their material well-being
and their spiritual development in conditions of freedom and dignity,
of economic security and equal opportunity, and

Considering that there exist in various independent countries indigenous
and other tribal and semi-tribal populations which are not yet
integrated into the national community and whose social, economic or
cultural situation hinders them from benefiting fully from the rights
and advantages enjoyed by other elements of the population, and

Considering it desirable both for humanitarian reasons and in the
interest of the countries concerned to promote continued action to
improve the living and working conditions of these populations by
simultaneous action in respect of all the factors which have hitherto
prevented them from sharing fully in the progress of the national
community of which they form part, and

Considering that the adoption of general international standards on
the subject will facilitate action to assure the protection of the
populations concerned, their progressive integration into their
respective national communities, and the improvement of their living
and working conditions, and

Noting that these standards have been framed with the co-operation

of the United Nations, the Food and Agriculture Organisation of the
United Nations, the United Nations Educational, Scientific and Cultural
Organisation and the World Health Organisation, at appropriate levels
and in their respective fields, and that it is proposed to seek their
continuing co-operation in promoting and securing the application of
these'standards,

222

adopts this twenty-sixth day of June of the year one thousand nine
hundred and fifty-seven the following Convention, which may be cited
as the Indigenous and Tribal Populations Convention, 1957:

PART I. GENERAL POLICY
Article I

1. This Convention applies to -—

(a) members of tribal or semi-tribal populations in independent
countries whose social and economic conditions are at a less
advanced stage than the stage reached by the other sections
of the national community, and whose status is regulated
wholly or partially by their own customs or traditions or by
special laws or regulations;

(b) members of tribal or semi-tribal populations in independent
countries which are regarded as indigenous on account of
their descent from the populations which inhabited the
country, or a geographical region to which the country
belongs, at the time of conquest or colonisation and which,
irrespective of their legal status, live more in conformity
with the social, economic and cultural institutions of that
time than with the institutions of the nation to which they
belong.

2. For the purposes of this Convention, the term "semi-tribal“
includes groups and persons who, although they are in the process
of losing their tribal characteristics, are not yet integrated
into the national community.

3. The indigenous and other tribal or semi-tribal populations
mentioned in paragraphs 1 and 2 of this Article are referred to
hereinafter as "the populations concerned."

Article II

1. Governments shall have the primary responsibility for developing
co-ordinated and systematic action for the protection of the
populations concerned and their progressive integration into the
life of their respective countries.

2. Such action shall include measures for --

(a) enabling the said populations to benefit on an equal footing
from the rights and opportunities which national laws or
regulations grant to the other elements of the population;

(b) promoting the social, economic and cultural development
of these populations and raising their standard of living;

(c) creating possiblities of national integration to the exclusion
of measures tending towards the artificial assimilation of

these pa ulations. , ,
3. The primary 0 jective of all such act1on shall be the foster1ng

of individual dignity, and the advancement of individual
usefulness and initiative.

4. Recourse to force or coercion as a means of promoting the
integration of these populations into the national community
shall be excluded.

223
Article 3

So long as the social, economic and cultural conditions of the

populations concerned prevent them from enjoying the benefits

of the general laws of the country to which they belong, special

measures shall be adopted for the protection of the institutions,

persons, property and labour of these populations.

Care shall be taken to ensure that such special measures of

protection --

(a) are not used as a means of creating or prolonging a state
of segregation; and

(b) will be continued only so long as there is need for special
protection and only to the extent that such protection is
necessary.

Enjoyment of the general rights of citizenship, without

discrimination, shall not be prejudiced in any way by such special

measures of protection.

Article 4

In applying the provisions of this Convention relating to the integration
of the populations concerned --

(a) due account shall be taken of the cultural and religious
values and of the forms of social control existing among
these populations, and of the nature of the problems which
face them both as groups and as individuals when they undergo
social and economic change;

(b) the danger involved in disrupting the values and institutions
of the said populations unless they can be replaced by
appropriate substitutes which the groups concerned are
willing to accept shall be recognised;

(c) policies aimed at mitigating the difficulties experienced
by these populations in adjusting themselves to new
conditions of life and work shall be adopted.

Article 5

In applying the provisions of this Convention relating to the protection
and integration of the populations concerned, governments shall -—

(a) seek the collaboration of these populations and of their
representatives;

(b) provide these populations with opportunities for the full
development of their initiative;

(c) stimulate by all possible means the development among these
populations of civil liberties and the establishment of
or participation in elective institutions.

Article 6

The improvement of the conditions of life and work and level of education
of the populations concerned shall be given high priority in plans for
the over-all economic development of areas inhabited by these populations.

224

Special projects for the economic development of the areas in question
shall also be so designed as to promote such improvement.

Article 7

1. In defining the rights and duties of the populations concerned
regard shall be had to their customary laws.

2. These populations shall be allowed to retain their own customs
and institutions where these are not incompatible with the
national legal system or the objectives of integration programmes.

3. The application of the preceding paragraphs of this Article
shall not prevent members of these populations from exercising,
according to their individual capacity, the rights granted to all
citizens and from assuming the corresponding duties.

Article 8

To the extent consistent with the interests of the national community
and with the national legal system --

(a) the methods of social control practised by the populations
concerned shall be used as far as possible for dealing with
crimes or offences commited by members of these populations;

(b) where use of such methods of social control is not feasible,
the customs of these populations in regard to penal matters
shall be borne in mind by the authorities and courts
dealing with such cases.

Article 9

Except in cases prescribed by law for all citizens the exaction from
the members of the populations concerned of compulsory personal
services in any form, whether paid or unpaid, shall be prohibited
and punishable by law.

Article 10

1. Persons belonging to the populations concerned shall be specially
safeguarded against the improper application of preventive
detention and shall be able to take legal proceedings for the
effective protection of their fundamental rights.

2. In imposing penalities laid down by general law on members of
these populations account shall be taken of the degree of cultural
development of the populations concerned.

3. Preference shall be given to methods of rehabilitation rather
than confinement in prison.

225
PART II. LAND

Article 11

The right of ownership, collective or individual, of the members of
the populations concerned over the lands which these populations
traditionally occupy shall be recognised.

Article 12

1. The populations concerned shall not be removed without their free
consent from their habitual territories except in accordance
with national laws and regulations for reasons relating to
national security, or in the interest of national economic
development or of the health of the said populations.

2. When in such cases removal of these populations is necessary
as an exceptional measure, they shall be provided with lands
of quality at least equal to that of the lands previously occupied
by them, suitable to provide for their present needs and future
development. In cases where chances of alternative employment
exist and where the populations concerned prefer to have
compensation in money or in kind, they shall be so compensated
under appropriate guarantees.

3. Persons thus removed shall be fully compensated for any resulting
loss or injury.

Article 13

1. Procedures for the transmission of rights of ownership and use
of land which are established by the customs of the populations
concerned shall be respected, within the framework of national
laws and regulations, in so far as they satisfy the needs of these
populations and do not hinder their economic and social development.

2. Arrangements shall be made to prevent persons who are not members
of the population concerned from taking advantage of these customs
or of lack of understanding of the laws on the part of the members
of these populations to secure the ownership or use of the lands
belonging to such members.

Article 14

National agrarian programmes shall secure to the populations concerned
treatment equivalent to that accorded to other sections of the national
community with regard to --
(a) the provision of more land for these populations when they
have not the area necessary for providing the essentials
of a normal existence, or for any possible increase in their
numbers;
(b) the provision of the means required to promote the development
of the lands whith these populations already possess.

226
PART III. RECRUITMENT AND CONDITIONS OF EMPLOYMENT
Article 15

1. Each Member shall, within the framework of national laws and
regulations, adopt special measures to ensure the effective
protection with regard to recruitment and conditions of
employment of workers belonging to the populations concerned
so long as they are not in a position to enjoy the protection
granted by law to workers in general.

2. Each Member shall do everything possible to prevent all
discrimination between workers belonging to the populations
concerned and other workers, in particular as regards --

(a) admission to employment, including skilled employment;

(b) equal remuneration for work of equal value;

(c) medical and social assistance, the prevention of employment
injuries, workmen's compensation, industrial hygiene and
housing;

(d) the right of association and freedom for all lawful trade
union activities, and the right to conclude collective
agreements with employers or employers' organisations.

PART IV. VOCATIONAL TRAINING. HANDICRAFTS AND RURAL INDUSTRIES
Article 16

Persons belonging to the populations concerned shall enjoy the same
opportunities as other citizens in respect of vocational training
facilities.

Article 17

1. Whenever programmes of vocational training of general application
do not meet the special needs of persons belonging to the
populations concerned governments shall provide special training
facilities for such persons.

2. These special training facilities shall be based on a careful
study of the economic environment, stage of cultural development
and practical needs of the various occupational groups among the
said populations; they shall, in particular, enable the persons
concerned to receive the training necessary for occupations for
which these populations have traditionally shown aptitude.

3. These special training facilities shall be provided only so
long as the stage of cultural development of the populations
concerned requires them; with the advance of the process of
integration they shall be replaced by the facilities provided
for other citizens.

227

Article 18

l. Handicrafts and rural industries shall be encouraged as factors
in the economic development of the populations concerned in a
manner which will enable these populations to raise their
standard of living and adjust themselves to modern methods of
production and marketing.

2. Handicrafts and rural industries shall be developed in a manner
which preserves the cultural heritage of these populations and
improves their artistic values and particular modes of cultural
expression.

PART V. SOCIAL SECURITY AND HEALTH
Article 19

Existing social security schemes shall be extended progressively, where
practicable, to cover --

(a) wage earners belonging to the populations concerned;

(b) other persons belonging to these populations.

Article 20

l. Governments shall assume the responsibility for providing
adequate health services for the populations concerned.

2. The organisation of such services shall be based on systematic
studies of the social, economic and cultural conditions of the
populations concerned.

3. The development of such services shall be co-ordinated with
general measures of social, economic and cultural development.

PART VI. EDUCATION AND MEANS OF COMMUNICATION
Article 21

Measures shall be taken to ensure that members of the populations
concerned have the opportunity to acquire education at all levels
on an equal footing with the rest of the national community.

Article 22

1. Education programmes for the populations concerned shall be
adapted, as regards methods and techniques, to the stage these
populations have reached in the process of social, economic
and cultural integration into the national community.

2. The formulation of such programmes shall normally be preceded
by ethnological surveys.

228
Article 23

1. Children belonging to the populations concerned shall be taught
to read and write in their mother tongue or, where this is not
practicable, in the language most commonly used by the group to
which they belong.

2. Provision shall be made for a progressive transition from the
mother tongue or the vernacular language to the national language
or to one of the official languages of the country.

3. Appropriate measures shall, as far as possible, be taken to
preserve the mother tongue or the vernacular language.

Article 24

The imparting of general knowledge and skills that will help children
to become integrated into the national community shall be an aim
of primary education for the populations concerned.

Article 25

Educational measures shall be taken among other sections of the
national community and particularly among those that are in most
direct contact with the populations concerned with the object of
eliminating prejudices that they may harbour in respect of these
populations.

Article 26

l. Governments shall adopt measures, appropriate to the social
and cultural characteristics of the populations concerned,
to make known to them their rights and duties, especially
in regard to labour and social welfare.

2. If necessary this shall be done by means of written translations
and through the use of media of mass communication in the
languages of these populations.

PART VII. ADMINISTRATION
Article 27

1. The governmental authority responsible for the matters covered

in this Convention shall create or develop agencies to administer

the programmes involved.

2. These programmes shall include ~-

(a) planning, co-ordination and execution of appropriate measures
for the social, economic and cultural development of the
populations concerned; '

(b) proposing of legislative and other measures to the competent
authorities;

(c) supervision of the application of these measures.

229
PART VIII. GENERAL PROVISIONS
Article 28

The nature and the scope of the measures to be taken to give effect to
this Convention shall be determined in a flexible manner, having regard
to the conditions characteristic of each country.

Article 29

The application of the provisions of this Convention shall not affect
benefits conferred on the populations concerned in pursuance of other
Conventions and Recommendations.

Article 30

The formal ratifications of this Convention shall be communicated to
the Director—General of the International Labour Office for registration.

Article 31

1. This Convention shall be binding only upon those Members of the
International Labour Organisation whose ratifications have been
registered with the Director—General.

2. It shall come into force twelve months after the date on which
the ratifications of two Members have been registerd with the
Director-General.

3. Thereafter, the Convention shall come into force for any Member
twelve months after the date on which its ratification has been
registered.

Article 32

l. A Member which has ratified this Convention may denounce it after -
the expiration of ten years from the date on which the Convention
first comes into force, by an act communicated to the Director-
General of the International Labour Office for registration.

Such denunciation shall not take effect until one year after
the date on which it is registered.

2. Each Member which has ratified this Convention and which does
not, within the year following the expiration of the period
of ten years mentioned in the preceding paragraph, exercise the
right of denunciation provided for in this Article, will be bound
for another period of ten years and, thereafter, may denounce
this Convention at the expiration of each period of ten years
under the tenns provided for in this Article.

230
Article 33

l. The Director-General of the International Labour Office shall
notify all Members of the International Labour Organisation
of the registration of all ratifications and denunciations
communicated to him by the Members of the Organisation.

2. When notifying the Members of the Organisation of the registration
of the second ratification communicated to him, the Director-
General shall draw the attention of the Members of the Organisation
to the date upon which the Convention will come into force.

Article 34

The Director-General of the International Labour Office shall
communicate to the Secretary-General of the United Nations for
registration in accordance with Article 102 of the Charter of the
United Nations full particulars of all ratifications and acts of
denunciation registered by him in accordance with the provisions of
the preceding Articles.

Article 35

At such times as it may consider necessary the Governing Body of the
International Labour Office shall present to the General Conference
a report on the working of this Convention and shall examine the
desirability of placing on the agenda of the Conference the question
of its revision in whole or in part.

Article 36

1. Should the Conference adopt a new Convention revising this
Convention in whole or in part, then, unless the new Convention
otherwise provides --

(a) the ratification by a Member of the new revising Convention

.shall ipso jure involve the immediate denunciation of this
Convention, notwithstanding the provisions of Article 32
above, if and when the new revising Convention shall have
come into force;

(b) as from the date when the new revising Convention comes into
force this Convention shall cease to be open to ratification
by the Members.

2. This Convention shall in any case remain in force in its actual
form and content for those Members which have ratified it but
have not ratified the revising Convention.

Article 37

The English and French versions of the text of this Convention are
equally authoritative.

231

8. Recommendation 104

 

Recommendation Concerning_the Protection and Integration
of Indigenous and Other Tribal and Semi—Tribal Populations
in Independent Countries (ILO)

 

The General Conference of the International Labour Organisation

Having been convened at Geneva by the Governing Body of the International
Labour Office, and having met in its Fortieth Session on 5th June 1957,
and

Having decided upon the adoption of certain proposals with regard to
the protection and integration of indigneous and other tribal and
semi-tribal populations in independent countries, which is the sixth
item on the agenda of the session, and

Having determined that these proposals shall take the form of a
Recommendation, supplementing the Indigenous and Tribal Populations
Convention, 1957, and

Noting that the following standards have been framed with the
co-operation of the United Nations, the Food and Agriculture
Organisation of the United Nations, the United Nations Educational,
Scientific and Cultural Organisation and the World Health Organisation,
at appropriate levels and in their respective fields, and that it

is proposed to seek their continuing co-operation in promoting and
securing the application of these standards,

adopts this twenty-sixth day of June of the year one thousand nine
hundred and fifty-seven the following Recommendation, which may be
cited as the Indigenous and Tribal Populations Recommendation, 1957:

The Conference recommends that each Member should apply the following
provisions:

I. PRELIMINARY PROVISIONS

1. (1) This Recommendation applies to --

(a) members of tribal or semi-tribal populations in
independent countries whose social and economic
conditions are at a less advanced stage then the
stage reached by the other sections of the national
community, and whose status is regulated wholly or
partially by their own customs or traditions or by
special laws or regulations;

(b) members of tribal or semi-tribal populations in
independent countries which are regarded as indigenous
on account of their descent from the populations which
inhabited the country, or a geographic region to which
the country belongs, at the time of conquest or
colonisation and which, irrespective of their legal
status, live more in conformity with the social,

232

economic and cultural institutions of that time than
with the institutions of the nation of which they
belong.

(2) For the purposes of this Recommendation, the term "semi-
tribal" includes groups and persons who, although they are in
the process of losing their tribal characteristics, are not
yet integrated into the national community.

(3) The indigenous and other tribal or semi-tribal populations
mentioned in subparagraphs (l) and (2) of this Paragraph
are referred to hereinafter as "the populations concerned."

II. LAND

Legislative or administrative measures should be adopted for the
regulation of the conditions, de facto or de jure, in which the
populations concerned use the land.

(1) The populations concerned should be assured Of a land
reserve adequate for the needs of shifting cultivation so
long as no better system of cultivation can be introduced.

(2) Pending the attainment of the objectives of a settlement
policy for semi-nomadic groups, zones should be established
within which the livestock of such groups can graze without
hindrance.

Members of the populations concerned should receive the same

treatment as other members of the national population in relation

to the ownership of underground wealth or to preference rights

in the development of such wealth.

(1) Save in exceptional circumstances defined by law the direct
or indirect lease of lands owned by members of the populations
concerned to persons or bodies not belonging to these
populations should be restricted.

(2) In cases in which such lease is allowed, arrangements should
be made to ensure that the owners will be paid equitable
rents. Rents paid in respect of collectively owned land
should be used, under appropriate regulations, for the
benefit of the group which owns it.

The mortgaging of land owned by members of the populations

concerned to a person or body not belonging to these populations

should be restricted.

Appropriate measures should be taken for the elimination of

indebtedness among farmers belonging to the populations concerned.

Co-operative systems of credit should be organised, and low-

interest loans, technical aid and, where appropriate, subsidies,

should be extended to these farmers to enable them to develop
their lands.

When appropriate, modern methods of co-operative production,

supply and marketing should be adapted to the traditional forms

of communal ownership and use of land and production implements
among the populations concerned and to their traditional systems

, of community service and mutual aid.

10.

11.

233
III. RECRUITMENT AND CONDITIONS OF EMPLOYMENT

So long as the populations concerned are not in a position to
enjoy the protection granted by law to workers in general,
recruitment of workers belonging to these populations should

be regulated by providing, in particular for --

(a) licensing of private recruiting agents and supervision
of their activities;

(b) safeguards against the disruptive influence of the
recruitment of workers on their family and community life,
including measures --

(i) prohibiting recruitment during specific periods and in
specified areas;

(ii) enabling workers to maintain contact with, and participate
in important tribal activities of, their communities
of origin; and

(iii)ensuring protection of the dependants of recruited
workers;

(c) fixing the minimum age for recruitment and establishing
special conditions for the recruitment of non-adult workers;

(d) establishing health criteria to be fulfilled by workers at
the time of recruitment;

(e) establishing standards for the transport of recruited
workers;

(f) ensuring that the worker --

(i) understands the conditions of his employment, as a
result of explanation of his mother tongue;

(ii) freely and knowingly accepts the conditions of his
employment.

So long as the populations concerned are not in a position to

enjoy the protection granted by law to workers in general, the

wages and the personal liberty of workers belonging to these
populations should be protected, in particular, by providing
that --

(a) wages shall normally be paid only in legal tender;

(b) the payment of any part of wages in the form of alcohol or
other spirituous beverages or noxious drugs shall be
prohibited;

(c) the payment of wages in taverns or stores, except in the
case of workers employed therein, shall be prohibited;

(d) the maximum amounts and manner of repayment of advances
on wages and the extent to which and conditions under
which deductions from wages may be permitted shall be
regulated;

(e) work stores or similar services operated in connection with
the undertaking shall be supervised;

(f) the withholding or confiscation of effects and tools which
workers commonly use, on the ground of debt or unfulfilled
labour contract, without prior approval of the competent‘
judicial or administrative authority shall be prohibited;

(9) interference with the personal liberty of workers on the

_ ground of debt shall be prohibited.

The right to repatriation to the community of origin, at the

expense of the recruiter or the employer, should be ensured in

all cases where the worker --

12.

l3.

14.

15.

234

(a) becomes incapacitated by sickness or accident during the
journey to the place of employment or in the course of
employment;

is found on medical examination to be unfit for employment;

is not engaged, after having been sent forward for engagement,

for a reason for which he is not responsible:

is found by the competent authority to have been recruited

by misrepresentation or mistake.

1) Measures should be taken to facilitate the adaptation of
workers belonging to the populations concerned to the concepts
and methods of industrial relations in a modern society.

(2) Where necessary, standard contracts of employment should

be drawn up in consultation with representatives of the

workers and employers concerned. Such contracts should

set out the respective rights and obligations of workers

and employers, together with the conditions under which

the contracts may be terminated. Adequate measures should

be taken to ensure observance of these contracts.

(1) Measures should be adopted, in conformity with the law, to

promote the stabilisation of workers and their families

in or near employment centres, where such stabilisation is

in the interest of the workers and of the economy of the

countries concerned.

(2) in applying such measures, special attention should be

paid to the problems involved in the adjustment of workers

belonging to the populations concerned and their families

to the forms of life and work of their new social and

economic environment.

The migration of workers belonging to the populations concerned

should, when considered to be contrary to the interests of these

workers and of their communities, be discouraged by measures
designed to raise the standards of living in the areas which

they traditionally occupy.

(l) Governments should establish public employment services,

stationary or mobile, in areas in which workers belonging

to the populations concerned are recruited in large numbers.

(2) Such services should, in addition to assisting workers to

find employment and assisting employers to find workers --

(a) determine the extent to which manpower shortages
existing in other regions of the country could be met
by manpower available in areas inhabited by the
populations concerned without social or economic
disturbances in these areas;

(b) advise workers and their employers on provisions concerning
them contained in laws, regulations and contracts,
relating to wages, housing, benefits for employment
injuries, transportation and other conditions of
employment;

(c) co-operate with the authorities responsible for the
enforcement of laws or regulations ensuring the protection
of the populations concerned and, where necessary, be
entrusted with responsibility for the control of
procedures connected with the recruitment and conditions
of employment of workers belonging to these populations.

00'
vv

AAA/K
O.
V

l6.

l7.

l8.

19.

20.

21.

22.

23.

24.

235

IV. VOCATIONAL TRAINING

Programmes for the vocational training of the populations
concerned should include provision for the training of members
of these populations as instructors. Instructors should be
conversant with such techniques, including where possible an
understanding of anthropological and psychological factors,

as would enable them to adapt their teaching to the particular
conditions and needs of these populations.

The vocational training of members of the populations concerned
should, as far as practicable, be carried out near the place
where they live or in the place where they work.

During the early stages of integration this training should be
given, as far as possible, in the vernacular langauge of the
group concerned.

Programmes for the vocational training of the populations
concerned should be co-ordinated with measures of assistance
enabling independent workers to acquire the necessary materials
and equipment and assisting wage earners in finding employment
appropriate to their qualifications.

Programmes and methods of vocational training for the populations
concerned should be co-ordinated with programmes and methods

of fundamental education.

During the period of vocational training of members of the
populations concerned, they should be given all possible
assistance to enable them to take advantage of the facilities
provided, including, where feasible, scholarships.

V. HANDICRAFTS AND RURAL INDUSTRIES

Programmes for the promotion of handicrafts and rural industries

among the populations concerned should, in particular, aim at --

(a) improving techniques and methods of work as well as working
conditions;

(b) developing all aspects of production and marketing,
including credit facilities, protection against monopoly
controls and against exploitation by middlemen, provision
of raw materials at equitable prices, establishment of
standards of craftsmanship, and protection of designs and of
special aesthetic features of products; and

(c) encouraging the formation of co-operatives.

VI. SOCIAL SECURITY AND MEASURES OF ASSISTANCE

The extension of social security schemes to workers belonging to
the populations concerned should be preceded or accompanied, as
conditions may require, by measures to improve their general

social and economic conditions.

In the case of independent primary producers provision should be
made for --

(a) instruction in modern methods of farming;

(b) supply of equipment, for example implements, stock, seeds; and

25.

26.

27.

28.

29.

30.

31.
32.

 

236

(c) protection against the loss of livelihood resulting from
natural hazards to crops or stock.

VII. HEALTH

The populations concerned should be encouarged to organise in
their communities local health boards or committees to look
after the health of their members. The formation of these
bodies should be accompanied by a suitable educational effort
to ensure that full advantage is taken of them.
(1) Special facilities should be provided for the training
of members of the populations concerned as auxiliary health
workers and professional medical and sanitary personnel,
where these members are not in a position to acquire such
training through the ordinary facilities of the country.
(2) Care should be taken to ensure that the provision of special
facilities does not have the effect of depriving members
of the populations concerned of the opportunity to obtain
their training through the ordinary facilities.
The professional health personnel working among the populations
concerned should have training in anthropological and psychological
techniques which will enable them to adapt their work to the
cultural characteristics of these populations.

VIII. EDUCATION

Scientific research should be organised and financed with a view
to determining the most appropriate methods for the teaching

of reading and writing to the children belonging to the populations
concerned and for the utilisation of the mother tongue or the
vernacular language as a vehicle of instruction.

Teachers working among the populations concerned should have
training in anthropological and psychological techniques which
will enable them to adapt their work to the cultural characteristics
of these populations. These teachers should, as far as possible,
be recruited from among such populations. .
Pre-vocational instruction, with emphasis on the teaching of
subjects relating to agriculture, handicrafts, rural industries
and home economics, should be introduced in the programmes of
primary education intended for the populations concerned.
Elementary health instruction should be included in the programmes
of primary education intended for the populations concerned.

The primary education of the populations concerned should be
supplemented, as far as possible, by campaings of fundamental
education. These campaigns should be desinged to help children
and adults to understand the problems of their environment and
their rights and duties as citizens and individuals, thereby
enabling them to participate with effectively in the economic

and social progress of their community.

33.

34.

35.

36.

237
IX. LANGUAGES AND OTHER MEANS OF COMMUNICATION

Where appropriate the integration of the populations concerned

should be facilitied by --

(a) enriching the technical and juridical vocabulary of their
vernacular languages and dialects;

(b) establishing alphabets for the writing of these languages
and dialects;

(c) publishing in these languages and dialects readers
adapted to the educational and cultural level of the
populations concerned; and

(d) publishing bilingual dictionaries.

Methods of audio-visual communication should be employed as means

of information among the populations concerned.

X. TRIBAL GROUPS IN FRONTIER ZONES

(1) Where appropriate and practicable, intergovernmental action
should be taken, by means of agreements between the
governments concerned, to protect semi-nomadic tribal
groups whose traditional territories lie across international
boundaries.

(2) Such action should aim in particular at --

(a) ensuring that members of these groups who work in
another country receive fair wages in accordance with
the standards in operation in the region of employment;

(b) assisting these workers to improve their conditions
of life without discrimination on account of their
nationality or of their semi-nomadic character.

XI. ADMINISTRATION

Administration arrangements should be made, either through
government agencies specially created for the purpose or through
appropriate co-ordination of the activities of other government
agencies, for --

(a) ensuring enforcement of legislative and administrative
provisions for the protection and integration of the
populations concerned;

(b) ensuring effective possession of land and use of other
natural resources by members of these populations;

(c) administering the property and income of these populations
when necessary in their interests;

(d) providing free aid for the members of the populations
concerned that may need legal aid but cannot affort it;

(e) establishing and maintaining educational and health services
for the populations concerned;

(f) promoting research designed to facilitiate understanding
of the way of life of such populations and of the process
‘of their integration into the national community;

(9) preventing the exploitation of workers belonging to the
populations concerned on account of their unfamiliarity with
the industrial environment to which they are introduced;

238

(h) where appropriate, supervising and co—ordinating, within
the framework of the programmes of protection and
integration, the activities, whether philanthropic or
profit-making, carried out by individuals and corporate
bodies, public or private, in regions inhabited by the
populations concerned.

37. (1) National agencies specifically responsible for the protection
and integration of the populations concerned should be
provided with regional centres, situated in areas where
these populations are numerous.

(2) These agencies should be staffed by officials selected
and trained for the special tasks they have to perform.
As far as possible, these officials should be recruited
from among the members of the populations concerned.

C. Final Resolution

 

(International NGO Conference on Discrimination Against
Indigenous Populations in the Americas)

The International Non-Governmental Organizations' Conference on
Discrimination against Indigenous Populations - 1977 - in the Americas
brought together more than 250 delegates, observers and guests at the
Palais des Nations, Geneva, from 20-23 September, including representatives
of more than 50 international non—governmental organizations.

For the first time, the widest and most united representation of
indigenous nations and peoples, from the Northern to the most Southern
tip and from the far West to the East of the Americas took part in

the Conference. They included representatives of more than 60 Nations
and peoples, from fifteen countries (Argentina, Bolivia, Canada, Chile,
Costa Rica, Guatemala, Ecuador, Mexico, Nicaragua, Panama, Paraguay,
Peru, Surinam, United States of American, Venezuela).

It is regretted that some delegates were prevented by their governments
from attending.

The Director of the United Nations Division on Human Rights addressed
the participants on behalf of the United Nations Secretary-General.
Representatives of the United Nations, the International Labour
Organisation and UNESCO addressed and participated in the Conference.
The representative of the Conseil d‘Etat of the Canton of Geneva
welcomed the participants. Observers from 27 UN Member States
followed the proceedings.‘

The Conference was the fourth such event organized by the Geneva NGO
Sub-Committee on Racism, Racial Discrimination, Apartheid and
Decolonization of the Special NGO Committee on Human Rights. Previous
conferences, all organized within the framework of the United Nations

239

Decade for Action to Combat Racism and Racial Discrimination were, in
1974, against aparatheid and colonialism in Africa; in 1975, on
discrimination against migrant workers in Europe; in 1975, on the
situation of political prisoners in Southern Africa.

 

The representatives of the indigenous peoples gave evidence to the
international community of the ways in which discrimination, genocide
and ethnocide operated. While the situation may vary from country

to country, the roots are common to all: they include the brutal
colonization to open the way for the plunder of their land and resources
by commercial interests seeking maximum profits; the massacres of
millions of native peoples for centuries and the continuous grabbing
of their land which deprives them of the possibility of developing
their own resources and means of livelihood; the denial of self-
determination of indigenous nations and peoples, destroying their
traditional value system and their social and cultural fabric. The
evidence pointed to the continuation of this oppression resulting in
the further destruction of the indigenous nations.

Many participants expressed support for and solidarity with the
indigenous nations and peoples.

Three commissions dealth specifically with the legal, economic and
social and cultural aspects of discrimination and formulated
recommendations for actions in support of indigenous peoples. Based
on these reports, the Conference established a programme of actions
to be carried out by non-governmental organizations in accordance
with their mandates and possibilities.

PROGRAMME OF ACTIONS
The Conference recommends:

-to observe October 12, the day of the so-called "discovery" of America,
as an international Day of Solidarity with the Indigenous Peoples of
the Americas;

-to present the Conference documentation to the United Nations
Secretary-General and to submit the conclusions and recommendations
of the Conference to the appropriate organs of the United Nations;

-to study and foster the discussion of the attached Draft Declaration
of Principles for the Defense of the Indigenous Nations and Peoples
of the Western Hemisphere, elaborated by indigenous peoples' -
representatives;

-to take all possible measures to support and defend any participants
in the Conference who may face harassment and persecut1on on the1r
return;

-to express to ICEM* the concerns of the Conference about the continued
settlement of immigrants on the land of indigenous peoples 1n the

 

*Intergovernmental Committee for European Migration

240

Americas and urge strongly that the resources of ICEM should not be
used in support of such immigrants, particularly when coming from the
racist regimes of Southern Africa.

In the Legal Field:

-that international instruments, particularly ILO Convention 107, be
revised to remove the emphasis on integration as the main approach
to indigenous problems and to reinforce the provisions in the
Convention for special measures in favour of indigenous peoples;

-that the traditional law and customs of indigenous peoples should
be respected, including the jurisdiction of their own forums and
procedures for applying their law and customs;

-that the special relationship of indigenous peoples to their land
should be understood and recognized as basic to all their beliefs,
customs, traditions and culture;

-that the right should be recognized of all indigenous nations or
peoples to the return and control, as a minimum, of sufficient and
suitable land to enable them to live an economically viable existence
in accordance with their own customs_and traditions, and to make
possible their full development at their own pace; in some cases
larger areas may be completely valid and possible of achievement;

-that the ownership of land by indigneous peoples should be unrestricted,
and should include the ownership and control of all natural resources.
The lands, land rights and natural resources of indigenous pe0ples

should not be taken, and their land rights should not be terminated

or extinguished without their full and informed consent;

-that the right of indigneous peoples to own their land communally and
to manage it in accordance with their own traditions and culture

should be recognized internationally and nationally, and fully protected
by law;

-that in appropriate cases aid should be provided to assist indigenous
peoples in acquiring the land which they require;

-that legal services should be made available to indigenous peoples
to assist them in establishing and maintaining their land rights;

-that all governments should grant recognition to the organization
of indigenous peoples and should enter into meaningful negot1at1ons
with them to resolve their land problems;

-that an appeal should be made to all governments of the Western
Hemisphere to ratify and apply the following Conventions:

241

(i) Genocide Convention
(ii) Anti-Slavery Conventions
(iii) Convention on the Elimination of all Forms of Racial
Discrimination
(iv) International Covenant on Civil and Political Rights
(v) International Covenant on Economic, Social and
Cultural Rights
(vi) American Convention on Human Rights

In the Economic Field:

-that the non-governmental organizations widely publicize the results
of this Conference in order to mobilize support and aid for the indigenous
peoples of the Western Hemisphere in their homelands;

-that conferences, seminars and colloquia be organized by NGOs, by
intergovernmental bodies on all levels - regional, national, global -
with the full participation of indigenous people to keep alive the
issues that have come to world-wide attention at this Conference, and
to hear new testimony that will be presented in the future;

-to promote the establishment of a working group on the indigenous
populations under the Sub-Commission on the Prevention of Discrimination
and Protection of Minorities of the United Nations Commission on

Human Rights; '

-that the United Nations Special Committee on Decolonization be
requested to hold hearings on all issues affecting indigenous
populations; -

-that the United Nations Committee On Trans-National Corporations
conduct investigations into the role of multinational corporations

in the plunder and exploitation of native lands, resources, and peoples
in the Americas.

In the Social and Cultural Field:

-to promote respect for the cultural and social integrity of indigenous
populations of the Americas; such respect should be especially promoted
among local and national governments and appropriate intergovernmental
organizations, and be based on the conclusions enunciated in the
commission report;

-to give all possible financial and moral support to efforts initiated
by American Indians in defense of their culture and society, and in
particular to the various education programmes launched by Indian
movements; solidarity is also requested for political prisoners and
other victims of persecution on account of their participation in

such indigenous movements;

242

Many other proposals and recommendations were made by the Conference
commissions. It is suggested that they be studied by NGOs for the
formulation of possible action programmes by them.

The Conference requests the officers of the Sub-Committee on Racism,
Racial Discrimination, Apartheid and Decolonization to promote

the decisions of the Conference and to receive and circulate information
from NGOs about the implementation of these decisions.

0. Declaration of Principles for the Defense of the Indigenous Nations
-and Peoples of the Western Hemisphere

(International NGO Conference on Discrimination Against
Indigenous Populations in the Americas)

Preamble:

Having considered the problems relating to the activities of the United
Nations for the promotion and encouragement of respect for human rights
and fundamental freedoms,

Noting that the Universal Declaration of Human Rights and related
international covenants have the individual as their primary concern,
and

Recognizing that individuals are the foundation of cultures, societies,
and nations, and

Whereas, it is a fundamental right of any individual to practice and
perpetuate the cultures, societies and nations into which they are
born, and

Recognizing that conditions are imposed upon peoples that supress,
deny, or destroy the cultures, societies, or nations in which they
believe or of which they are members,

Be it affirmed, that,

1. Recognition of indigenous nations
Indigenous peoples shall be accorded recognition as nations, and
proper subjects of international law, provided the people

concerned desire to be recognized as a nation and meet the
fundamental requirements of nationhood, namely:

 

*International NGO Conference on Discrimination Against Indigneous
Populations in the Americas -- 1977 (20-23 September 1977, Geneva):
Statements and Final Documents, pp. 4-5.

243

Having a permanent population

Having a defined territory

Having a government

Having the ability to enter into relations with other states.

‘10 0'9!

Subjects of International Law

 

Indigenous groups not meeting the requirements of nationhood are
hereby declared to be subjects of international law and are
entitled to the protection of this Declaration, provided they
are identifiable groups having bonds of language, heritage,
tradition, or other common identity.

Guarantee of Rights

No indigenous nation or group shall be deemed to have fewer
rights, or lesser status for the sole reason that the nation
or group has not entered into recorded treaties or agreements
with any state.

Accordance of Independence

Indigenous nations or groups shall be accorded such degree of
independence as they may desire in accordance with international
law.

Treaties and Agreements

Treaties and other agreements entered into by indigenous
nations or groups with other states, whether denominated as
treaties or otherwise, shall be recognized and applied in the
same manner and according to the same international laws and
principles as the treaties and agreements entered into by other
states.

Abrogation of Treaties and Other Rights

Treaties and agreements made with indigenous nations or groups
shall not be subject to unilateral abrogation. In no event

may the municipal law of any state serve as a defense to the
failure to adhere to and perform the terms of treaties and
agreements made with indigenous nations or groups. Nor shall

any state refuse to recognize and adhere to treaties or other
agreements due to changed circumstances where the change in
circumstances has been substantially caused by the state asserting
that such change has occurred.

10.

11.

244
Jurisdiction

No state shall assert or claim or exercise any right or juris-
diction over any indigenous nation or group or the territory

of such indigenous nation or group unless pursuant to a valid
treaty or other agreement freely made with the lawful
representatives of the indigenous nation or group concerned.

All actions on the part of any state which derogate from the
indigenous nations' or groups' right to exercise self-determination
shall be the proper concern of existing international bodies.

Claims to Territory

No state shall claim or retain, by right of discovery or
otherwise, the territories of an indigenous nation or group,

-except such lands as may have been lawfully acquired by valid

treaty or other cession freely made.

Settlement of Disputes

 

All states in the Western Hemisphere shall establish through
negotiation or other appropriate means of procedure for the
binding settlement of disputes, claims, or other matters relating
to indigenous nations or groups. Such procedures shall be
mutually acceptable to the parties, fundamentally fair, and
consistent with international law. All procedures presently

in existence which do not have the endorsement of the indigenous
nations or groups concerned shall be ended, and new procedures
shall be instituted consistent with this Declaration.

National and Cultural Integrity

It shall be unlawful for any state to take or permit any action

or course of conduct with respect to an indigenous nation or group
which will directly or indirectly result in the destruction or
disintegration of such indigenous nation or group or otherwise
threaten the national or cultural integrity of such nation or
group, including, but not limited to, the imposition and support
of illegitimate governments and the introduction of non-indigenous
religions to indigenous peoples by non-indigenous missionaries.

Environmental Protection

It shall be unlawful for any state to make or permit any action
or course of conduct with respect to the territories of an
indigenous nation or group which will directly or indirectly
result in the destruction or deterioration of an indigenous
nation or group through the effects of pollution of earth, air,
water, or which in any way depletes, displaces or destroys any
natural resource or other resources under the dominion of, or
vital to the livelihood of an indigenous nation or group.

245
12. Indigenous Membership

No state, through legislation, regulation, or other means, shall
take actions that interfere with the sovereign power of an
indigenous nation or group to determine its own membership.

13. Conclusion

All of the rights and obligations declared herein shall be in
addition to all rights and obligations existing under
international law.

E. Declaration of the Indigenous Peoples

(Fourth Russell Tribunal)

The Fourth Russell Tribunal held in Rotterdam in 1980, arose in

response to a need expressed at the International Conference Against

the Discrimination of Indigenous Peoples of the Western Hemisphere

held in Geneva, Switzerland in 1977. The Geneva Conference demonstrated
that certain Nation-States of the Western Hemisphere practice gross
violations of the rights of the Indigenous Peoples. The Indigenous
Peoples represented at the Conference recommended that a Tribunal

be formed in order that cases may be presented and witnessed heard

to inform the world of the nature and effect of those abuses.

We have witnessed the accusations brought before the Fourth Tribunal.
We have heard our brothers and sisters speak of mass executions,
kidnappings, tortures, rapes and assassinations committed and

permitted by the governments of Nation-States with political acts of
terriorism and oppression against Indigenous Peoples, organizations

and Nations. We believe that the charges brought before the Tribunal =
provide the most eloquent testimony that Nation-States have adopted
national policies of ethnocide and genocide of Indigenous Peoples

and that such policies are unacceptable to the conscience of humanity.
We condemn genocide and ethnocide in all forms.

The Indigenous Peoples suffer the most outrageous abuses of their
rights. Nation-States have adopted national policies designed to
deny peoples their rights to exist as distinct peoples of the

world, including the right to practice their culture, to speak their
language, to the peaceful possession of their national territory

and their right to a national identity. In almost every case
Indigenous Peoples suffer from the unlawful taking of their lands
through national policies which are designed to deny Indigenous
Peoples of their right to their lands.

246

The municipal laws of many Nation-States do not provide justice to
the Indigenous Peoples.

The accusations and the testimonies of the Indigenous Peoples at the
Tribunal have affirmed that Nation-States are not the sole

instruments of dispossession and genocide. Certain religious
organizations, especially missions of Christian denominations,

act in partnership with governments in policies intended to dispossess
peoples and destroy their langauges and other elements of their
culture. There has been conclusive demonstration, that the economic
interests or ruling classes of the Nation-States as well as the
economic interests of the ruling classes of industrialized countries,
as represented by the activities of transnational corporations, have
been instrumental in dispossessing peoples of their lands and freedom.

Because of the power of these economic interests in influencing and
determining national policies, whole peoples have been forced into
economic slavery on the plantations, in the mines, and in the factories
of the oppressors. People are being driven from their homelands and
forced to live in poverty and despair on the margins of their rightful
territories, as exiles in their own land. Those of our people who
express opposition to the policies which create those horrifying
conditions are subjected to the brutal repression, persecution and
discriminations which are the tools by which the people are denied
their rights to exist as distinct people of the world.

We, the Indigenous Peoples gathered here at this Fourth Russell
Tribunal, call upon the people of the world to take action to right
these horrible wrongs. We reaffirm our support of the principles
set forth in the Declaration of the Rights of the Indigenous Peoples
of the Western Hemisphere adopted by the Geneva Conference of 1977
and we call upon the people of the world to work for the rights of
Indigenous Peoples to exist as distinct peoples of the world and to
condemn genocide and ethnocide.

We support the principles that Indigenous Peoples have the right to
exist as distinct peoples of the world, and that they have a right

to possession of their territories and the right to sovereign self-
determination. We call upon the people of the world to join us in
asserting that the genocide and dispossession of Indigenous Peoples

is a matter of rightful concern to the world community, as are matters
involving a consistent pattern of gross violations of the rights

of the Indigenous Peoples and Nations Under principles established

by International Law and that action must be taken by the world
organisations and specifically the United Nations.

Finally, we call upon the people of conscience to join us in our call
for recognition of Indigenous Peoples and Nations as full members

of the world community of nations and peoples with a right to
representation and membership in world organisations and especially
the United Nations.

We, the Indigenous Peoples, representatives at the Fourth International
Russell Tribunal, 1980, resolve with respect to the following:

.247

Genocide

That the Tribunal denounce the physical extermination which is
is instrumental through the repression of Indigenous Leaders,
many of whom have been assassinated, tortured, kidnapped and
exiled.

Ethnocide

That the Tribunal denounce the campaign of destruction directed
against the Indigenous Nations through the denial of their
culture, language and traditions, this being the instrument used
by the Western colonialists for the ruling classes of whom they
are intermediaries.

Transnational Corporations

That the Tribunal denounce the transnational corporations which
exploit our resources (minerals, petroleum, forests, etc.),
destroying at the same time the ecology of our territories, and
for which they count upon the complicity of governments and their
instruments of repression.

Emigration of White Racists

That the Tribunal denounce the South American governments which
would attempt to relocate racist Rhodesians to regions of majority
Indigenous populations, as in the case of Bolivia, with the express
purpose of strengthening western domination.

Sterilization

That the Tribunal denounce the sterilization campaigns, direct
and indirect, against the Indigenous populations, with the
purpose of impeding the population growth of Indigenous Nations,
heightening their potential for struggle and thus threatening
the western societies' economic and political interests.

Missionaries

Because Indigenous peoples have their own traditional religions
and that those religions are consistently under attack by western
religions, that the Tribunal in the future look closely at
prOgrams conducted by missionary groups belonging to the Roman
Catholic Church, Protestant and Evangelical denominations because
of their obvious complicity in the genocidal processes carried
out against Indigenous Peoples. This would not indict these
missionaries who have committed themselves to helping our people.
In particular we would ask the Tribunal to immediately condemn,

10.

11.

248

and in the future, completely investigate the activities of that
great common danger, The Summer Institute of Linguistics.

Definitions and Boundaries

 

We condemn all Nation-States, such as Canada, that have divided
our various peoples by legislative definitions, different modes

of land settlements and imposed boundaries in continuing violation
of Articles 10 and 12 of the "Declaration of Principles for the
Defense of the Indigenous Nations and Peoples of the Western
Hemisphere," Geneva Conference, 1977.

 

 

Before the tragedy of genocide and ethnocide on the part of the
dominant societies and governments, we value the solidarity of those
organisms, Nation-States and institutions that identify with our
cause, but at the same time we reject those organizations which,
under the pretext of defending the rights of Indigenous Peoples,
foment division by supporting groups and organizations driven by
political interest not based on our own history.

Declaration
That the Fourth International Russell Tribunal adopt the 1977

”Declaration of Principles for the Defense of the Indigenous
Nations and Peoples of the Western HemisphereVTand the subsequent

 

“Declaration of the Indigenous Peoples at the Fourth International
Russell Tribunal," 1980.

 

1948 Convention

That the Fourth Russell Tribunal take into consideration the
1948 "Convention on the Prevention and Punishment of the Crime
of Genocide" in relation to the violations against our peoples

 

and nations.

Protection of Our Relatives

That the Tribunal condemn activities and enterprises that are
destructive of our relatives, the four-legged of the land, the
winged-ones of the air, the occupants of the waters and the

creatures of the bottom of the seas, including all other life

forms necessary to their.survival and a clean, healthy and
renewal environment w1th1n which they may flour1sh.

3.1m,

That the Fourth Russell Tribunal condemn the military dictatorship
of General Garcia and his Minister of the Interior, General
Luis Arce Gomez, as responsible for the massacre carried out

249

against the Indian miners, campesino communities and the marginal
areas of the cities. Many of their representatives have been
assassinated, imprisoned in concentration camps, kidnapped,
persecuted and exiled.

12. Guatemala

That the Fourth Russell Tribunal condemn the government of
General Lucas Garcia de Guatemala for the continual massacre and
ethnocide of Indigenous Peoples there, a majority population.
Also that the Tribunal should request the immediate withdrawal
of the military troops which presently occupy vast areas of the
country.

13. El Salvador

That the Fourth Russell Tribunal condemn and repudiate the
military Junta of El Salvador for its obvious involvement in the
numerous massacred of Indigenous Peoples in that country, a tactic
utilized to maintain the privilege of a minority which despoils
the country and oppresses the population.

14. Chile

 

That the Russell Tribunal repudiate the Military Junta of Chile

for its continuous violation of the rights of the Mapuche Nation

and the repression of its leadership since the military coup

of 1973. Also, the ethnocide Law 2568/78 which divides the

Mapuche communities into small parcels of land, therefore destroying
the Indigenous concept of life.

Suggestions for Future Work

We propose that a mechanism should be installed so the Tribunal and its~
results should be continuous. Permanent observation of, continual

media dissemination as well as continuous challenges to the accused
dominant governments, institutions and individuals must be guaranteed.

Therefore we encouarge our European supporters to maintain their
commitment in the future.

These proposed follow-up activities should guarantee the continued
monitoring of these voltile situations and should point the way to
appropriate measures on the part of the European Support Commun1ty.

The Indigenous delegates recommend that such a work be placed under
the authority of an Indigenous National Government, namely the
Council of Chiefs of the:

League of the Haudeenosaunee, in consultation with
the International Indian Treaty Council, the South
American Indian Council and other Traditional Indigenous Bodies.

APPENDIX II
Indian Civil Rights Act Cases, l968-1978

Guide to Style

 

"CASES

The line directly below the title gives the state,
court(s), tribes(s) and date(s) when applicable.
The court, except where shown as a Federal Court,
tribal court or administrative agency, is a court
of the state indicated at the beginning of the line.
The courts listed are not meant to be a history

of the case, but only refer to the documents in the
library files. The date is that of the earliest
document in the case in our files. The date
preceded by the letter "d.“ indicates the date

on which the case was settled or decided. If no
date preceded by the letter "d." is shown, then the
case is undecided, on appeal in another court, or
the decision is unreported and we have no record

of it. If only a date preceded by the letter "d."
is shown, then all of the litigation in our file
occurred during the year of the decision. The
symbol (C._____) indicates a connected or
consolidated case."

National Indian Law Library, Catalogue (1976), B-2

250

Abertin, Richard v. Colville Confederated Tribes.
Wash., E. 0. Wash., Colville, d. 1978.

Berry, Keith v. Arapahoe and Shoshone Tribes.
Wyo., D. Wyo., Arapahoe and Shoshone, d. 1976.

Big Eagle, Willard v. Peck, Walter.

Big Eagle, Regina v. Peck, Walter.

Big Eagle, Regina v. Andera, Leonard E.

S. 0., D. S. D., 8th Cir., Crow Creek Sioux, d. 1975.

Big Knife, Joe v. Rocky Boy's Chippewa-Cree Tribal
Business Committee
Mont., D. Mont., Chippewa-Cree, 1971.

Brown, Ellsworth v. United States.
S. D., D. S. D., 8th Cir., Cheyenne River Sioux, d. 1973.

Brunette, Doris v. Dann, Jimmy.
Ida., 0. Ida., Shoshone-Bannock, d. 1976.

Burnette, Robert v. Rosebud Sioux Tribe of South Dakota.
S. D., D. S. D., Rosebud Sioux, d. 1977.

Clairmont, Phillip B. v. Confederated Salish and Kootenai
Tribes.
Mont., D. Mont., Confederated Salish and Kootenia, 1976.

Clark, Dorothy v. Land and Forestry Committee of the
Cheyenne River Sioux Tribal Council.
S. D., D. S. D., Cheyenne River Sioux, d. 1974.

Claw, Wallace v. Armstrong, George R.
Colo., D. Colo., Ute Mountain Ute, d. 1970.

Cliff, Gilbert v. Hawley, Cranston.
Mont., D. Mont., Gros Ventre, Assiniboine, 1975.

Colombe, Charles C. v. Rosebud Sioux Tribe.
S. D., D. S. D., Rosebud Sioux, 1975.

Cowan, Pat v. Rosebud Sioux Tribe.
S. D., Rosebud Sioux Tribal Ct., D. S. D., Rosebud
Sioux, 1974.

Crossguns, Virgil, In re.
Mont., D. Mont., Blackfeet, 1969,
(C. 001253 - Reagan, Barney v. Blackfeet Tribal Court
001254 - Rafalsky, Thomas v. Blackfeet Tribe).

Crowe, Berdina v. Eastern Band of Cherokee Indians.
N. C., W. D. N. C., Eastern Band of Cherokee, d. 1977.

003638

003108

002506

001060

002083

003147

003697

003996

002532

001085

002924

002816

002570

001255

003625

251

Crowe, Nettie S. v. Eastern Band of Cherokee Indians, Inc.
N. C., W. D. N. C., 4th Cir., Eastern Band of Cherokees,
d. 1974.

Daly, Mary v. United States.
S. D., D. S. D., 8th Cir., Crow Creek Sioux, d. 1973.

Dodge, John v. Nakai, Raymond.

Ariz., D. Ariz., 9th Cir., Navajo, d. 1971.

Dry Creek Lodge, Inc. v. United States.

Wyo., D. Wyo., 10th Cir., Shoshone, Arapahoe, 1974
(C. 002437 - Gutherie, Willis v. United States).

Enos, Lawrence v. Rhodes, William Roy.
Ariz., D. Ariz., Pima-Maricopa, 1973.

Groundhog, George v. Keeler, William.
Okla., 10th Cir., Cherokee, d. 1971.

Gutherie, Willis A. v. United States.
Wyo., D. Wyo., Shoshone, Arapahoe, 1974,
(C. 002438 - Dry Creek Lodge, Inc. v. United States).

Heim, Myrtle Sandaine v. Nicholson, Narcisse, Jr.
Wash., E. 0. Wash., Colville, d. 1971.

Hickey, Roland, d. b. a. Hickey Drilling v. Crow Creek
Housing Authority.
S. D., D. S. 0., Crow Creek Sioux, d. 1974.

Howlett, Kevin v. Confederated Salish and Kootenai Tribes
of the Flathead Reservation.

Mont., D. Mont., 9th Cir., Confederated Salish and Kootenia,
d. 1976.

Indian Political Action Committee v. Tribal Executive
Committee of the Minnesota Chippewa Tribe.
Minn., D. Minn., Minnesota Chippewa, 1976.

Jacobson, Virginia v. Forest County Potawatomi Community.
Wisc., E. D. Wisc., Forest County Potawatomi, d. 1974.

James, Jimmy Joe v. Hammand, Stanley.
N. M., D. N. M. Navajo, d. 1971.

Janis, Geraldine v. Wilson, Dick.
S. D., D. S. D., 8th Cir., Oglala Sioux, d. 1975.

Johnson, Stanley v. Lower Elwha Tribal Community.
Wash., W. 0. Wash., 9th Cir., Clallam, d. 1974.

001304

001274

001037

002438

001995

002261

002437

002389

002494

002779

003050

002676

001094

002647

002091

252

Jones, William v. Three Affiliated Tribes of the Fort
Berthold Reservation.

N. 0., D. N. 0., Three Affiliated Tribes of the Fort
Berthold Reservation, d. 1975.

Keith, Hobart v. Oglala Sioux Tribe.
S. D., D. S. D., Oglala Sioux, d. 1976.

Lake, Kee v. Peabody Coal Company.
Ariz., D. Ariz., Navajo, 1972.

Laramie, June Karn v. Nicholson, Narcisse, Jr.
Wash., E. 0. Wash., 9th Cir., U. 5. Sup. Ct.,
Colville Confederated Tribes, 1972

(CC. 001499 - Thompson, Alice M. v. Tonasket, Mel).

Letfhand, Frederick v. Crow Tribal Council of the Crow
Tribe of Indians of Montana.
Mont., D. Mont., Crow, d. 1971.

Logan, Leroy v. Morton, Rogers C. B.
Okla, N. D. Okla, Osage, 1974.

Lohnes, David v. Cloud, Aloysius.
N. D., D. N. D., Devils Lake Sioux, d. 1973.

Loncassion, Lorraine v. Leekity, Willis.
N. M., D. N. M., Zuni, d. 1971.

Luxon, Ann v. Rosebud Sioux Tribe.
S. D., D. S. D., 8th Cir., Rosebud Sioux, d. 1972.

McCurdy, Molley v. Steele, Hubert.
Utah, 0. Utah, 10th Cir., Confederated Tribes of the
Goshute Reservation, 1973, d. 1974.

Mann, William Lyle v. Gallagher, A. M.
Wash., Super. Ct., 0. Wash., Quinault, d. 1973.

Marchand, Thelma v. Nicholson, Marcisse, Jr.

Wash., E. 0. Wash., Confederated Colville Tribes, 1970.

Markovich, Nick L. v. Puyallup Indian Tribe.
Wash., W. 0. Wash., Puyallup, 1975.

Martinez, Julia v. Santa Clara Pueblo.

Martinez, Julia v. Romney, George.

N. M. D. N. M., 10th Cir., U. S. Sup Ct., Santa Clara
Pueblo, d. 1978.

Means, Russell v. Wilson, Dick.
S. D., D. S. D., 8th Cir., Oglala Sioux, 1974.

002822

003506
001492

001340

001089

002471
002136
002342
001107

001641

002155
001206
003001

001565

002567

253

Merrion J. Gregory v. Jicarilla Apache Tribe.
Amoco Production Company v. Jicarilla Apache Tribe.
N. M., D. N. M., Jicarilla Apache, 1977.

Mousseaux, Taylor v. Rosebud Sioux Tribe.
5. D., D. S. D., Rosebud Sioux, 1977.

Navajo Housing Authority v. Ellsowrth, Rosecita.
N. M., Navajo Trial Ct., Navajo Ct. App., Navajo, d. 1970.
Necklace, Marjorie v. The Tribal Court of the Three
Affiliated Tribes of the Fort Berthold Reservation.
N. D., D. N. D., 8th Cir., Three Affiliated Tribes of
the Fort Berthold Reservation, 1977.

New Mexico v. Railey, Richard Michael.
N. M., Dist. Ct., Ct. App., Zuni, d. 1975.

Northern Cheyenne Tribe v. Blackstone, Matthew.
Northern Cheyenne Tribe v. Grendahl, Carol.

Mont., Northern Cheyenne Tribal Ct., Northern Cheyenne, 1977.

Oglala Sioux Civil Rights Organization v. Wilson, Dick.
S. D., D. S. D., Oglala Sioux, 1973.

Olney Runs After v. Cheyenne River Sioux Tribe.
S. D., D. S. 0., Oglala Sioux, 1973.

Olympia Pipe Line Company v. Swinomish Tribal Community.
Wash., W. 0. Wash., Swinomish, 1976.

O'Neal, Charles v. Cheyenne River Sioux Tribe.
S. D., D. S. D., 8th Cir., Cheyenne River Sioux, d. 1973.

Ortiz-Barraza, Jose Luiz v. United States.
Ariz., D. Ariz., 9th Cir., Papago, d. 1975.

Pablo, James, In re Detention of.
Pablo, James v. Norris, George.
Ariz., D. Ariz., Papago, d. 1972.

Pambrun, George v. Blackfeet Tribe, Blackfeet Indian
Reservation, Mont.
Mont., D. Mont., Blackfeet, d. 1975.

People's Committee of Taos Pueblo v. Tribal Council of
Taos Pueblo.
N. M., D. N. M., Taos Pueblo, 1975.

Peterson, Lee v. Salois, Lenore.
Mont., D. Mont. Blackfeet, 1977.

Pickner, Earl v. Aikins, Victoria.

S. D., D. S. D., Crow Creek Sioux, d. 1974.

003553

003549

001074

003362

002728

003339

002002

003623

003076

002652

002729

001567

003077

002850

003591

002535

254

Pinnow, Barbara M. v. Shoshone Tribal Council.
Wyo., D. Wyo., Arapahoe, Shoshone, d. 1970,
(C. 001106 - Slattery, Sara Jean Chamberlain v.
Arapahoe Tribal Council).

Plummer, Hugh v. Jones, Franklin.
N. M., Dist., Ct., Navajo, 1970.

Pomani, Delbert v. Crow Creek Sioux Tribe.
5. 0., D. S. D., Crow Creek Sioux, d. 1976.

Rafalsky, Thomas v. Blackfeet Tribe.
Mont., D. Mont., Blackfeet, 1969,
(C. 001253 Reagan, Barney v. Blackfeet Tribal Court
001255 Crossguns, Virgil, In re).

Rank, Elnita M. v. Crow Creek Sioux Tribe.
S. D., D. S. D., Crow Creek Sioux, d. 1977.

Reagan, Barney v. Blackfeet Tribal Court.
Mont., D. Mont., Blackfeet, 1969,
(C. 001254 Rafalsky, Thomas v. Blackfeet Tribe
001255 Crossguns, Virgil, In re).

Red Fox, David Joseph v. Red Fox, Marcis Annet.
Ore., 9th Cir., Confederated Tribes of the Warm Springs
Reservation, d. 1977.

Rosebud Sioux Tribe of South Dakota v. Driving Hawk, Ed.
S. 0., D. S. D., 8th Cir., Rosebud Sioux, d. 1976.

St. Marks, Peter v. Canan, James.
Mont., D. Mont., Chippewa-Cree, d. 1971.

St. Marks, Peter v. Chippewa-Cree Tribe of Rocky Boy
Reservation.

Mont., Chippewa-Cree Tribal Ct., D. Mont., 9th Cir.,
Chippewa-Cree, 1974.

Schantz, James v. White Lightening, Ada.
N. D., Dist. Ct., Sup. Ct., D. N. D., 8th Cir., Standing
Rock Sioux, d. 1975.

Seneca Constitutional Rights Organization v. George, James
N. Y., W. D. N. Y., 2d Cir., Seneca, d. 1972.

Settler, Alvin v. Lameer, Wilson.

Settler, Mary G. v. Lameer, Wilson.

Wash., Yakima Tribal Ct., E. 0. Wash. 9th Cir., Yakima,
d. 1974,
(C. 001149 - Settler, Alvin v. Yakima Tribal Court).

002407

001070

003505

001254

003535

001253

003633

002901

001086

002884

002137

001569

001213

255

Settler, Alvin v. Yakima Tribal Court.

Wash., Yakima Tribal Ct., E. 0. Wash., 9th Cir., U. S. Sup.

Ct., Yakima, d. 1974,
(C. 001213 - Settler, Alvin v. Lameer, Wilson.
Settler, Mary G. v. Lameer, Wilson).

Siutza, Edwina v. Zuni Housing Authority.
N. M., D. N. M., Zuni, d. 1972.

Slather, August v. The Quileute Indian Tribe.
Wash., W. 0. Wash., Quileute, 1975.

Slattery, Sara Jean Chamberlain v. Arapahoe Tribal Council.

Wyo., 10th Cir., Arapahoe, d. 1971,
(C. 002407 - Pinnow, Barbara M. v. Shoshone Tribal
Council).

Solomon, Cora v. LaRose, Louis.
Neb., D. Neb., Winnebago Tribe of Nebraska, d. 1971.

Spotted Eagle, Thomas v. Blackfeet Tribe.
Mont., D. Mont., Blackfeet, 1968.

Standing Rock, Joseph v. Chippewa Cree Tribe of the Rocky
Boy's Reservation.
Mont., D. Mont., Chippewa Cree, d. 1977.

Stands Over Bull, Pat v. Bureau of Indian Affairs.
Mont., D. Mont., 9th Cir., Crow, 1977.

Sturdevant, Michael E. v. Deer, Ada E.
Wisc., E. D. Wisc., Menominee, 1975.

Takes Gun, George v. Crow Tribe of Indians.
Mont., D. Mont., Crow, d. 1978.

Thompson, Alice M. v. Tonasket, Mel.
Wash., E. 0. Wash., 9th Cir., U. S. Sup. Ct., Colville,
d. 1973,
(C. 001340 - Laramie, June Karen v. Nicholson,
Narcisse, Jr.).

Tom, Ralph v. Suttom, William.
Wash., W. 0. Wash., 9th Cir., 1975.

Towersap, Leroy v. Ft. Hall Indian Tribal Council.
Ida., 0. Ida., ShoShone-Bannock, d. 1971.

150, Emmett v. Hopi Tribe.
Ariz., D. Ariz., Hopi, Navajo, 1974.

Two Hawk, Webster v. Rosebud Sioux Tribe.
S. D., D. S. D., Rosebud Sioux, d. 1975.

001149

001017

003105

001106

002033

002189

003596

003665

003056

003827

001499

002835

001103

002882

002857

‘- .a._‘2

 

256

United States ex rel, Henry F. Cobell v. Cobell, Joan R.,
Sharp, The Honorable John P. v. United States.

Mont., Blackfeet Tribal Ct., Dist., Ct., Sup. Ct., D. Mont.,

9th Cir., U. S. Sup. Ct., Blackfeet, d. 1974.

United States v. San Carlos Apache Tribe.
Ariz., D. Ariz., San Carlos Apache, 1974.

Walking Eagle, Carrie v. Nightpipe, Manley.
S. D., D. S. D., Rosebud Sioux, d. 1972.

Wasson, H. Reed v. Gray, John.
N. M., D. N. M., Zuni, d. 1972.

White, Harold R. v. Tribal Council, Red Lake Band of
Chippewa Indians.
Minn., D. Minn., Red Lake Band of Chippewa, d. 1974.

White Eagle, Melvin v. One Feather, Philomene.

N. D., D. N. D., 8th Cir., Standing Rock Sioux, d. 1973.

Williams, Laurs J. v. Sisseton - Wahpeton Sioux Tribe
Council.

S. D., D. S. D., Sisseton-Wahpeton Sioux, d. 1975.

Williams, Sandra Sangrey v. Chippewa Cree Tribe of the
Rocky Boy's Reservation.
Mont., D. Mont., Chippewa Cree, 1977.

Wisconsin Potawatomies of the Hannahville Indian Community
v. Houston, Bernard.
Mich., W. D. Mich., Potawatomie, d. 1973.
(C. 002381 - Wisconsin Potawatomies of the Hannahville
Indian Communit , In re Petition of v.
Wilsey, Williami.
Wisconsin Potawatomies of the Hannahville Indian Community
In re Petition of v. Wilsey, William.
Mich., M. D. Fla., Potawatomie, 1974,
(C. 001656 - Wisconsin Potawatomies of the Hannahville
Indian Community v. Houston, Bernard).

Wopsock, Floyd v. Uintah and Ouray Tribal Business
Committee.
Utah, 0. Utah, Dept. Int., Ute, 1974.

Wounded Head, Garrett v. Tribal Council of the Oglala Sioux

Tribe.
S. D., D. S. D., 8th Cir., Oglala Sioux, d. 1975.

Wounded Knee, Irma v. Andera, Leonard.
S. D., D. S. 0., Crow Creek Sioux, d. 1976.

Yellow Bird, Harry v. Oglala Sioux Tribe.
Pourier, Morton v. Oglala Sioux Tribe.
S. D., D. S. D., Oglala Sioux, 1974.

001601

002367

001077

001015

003376

001925

002677

003536

001656

002381

002478

002646

003083

002531

 

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