A must-read: 'The Rights of Indians and Tribes'
The value of accurate and timely information on Indian affairs is paramount. We often wish that all young Native students, certainly by high school level, would have a clear understanding of their tribal history, and of the cultural and legal foundations that American Indians have under U.S. law. Unfortunately, this is not the case. Not only students but also many Native adults have incomplete information on important issues facing their nations. Of course, much of the general American population is still largely ignorant of the actual bases of American Indian status in federal law.
The updated, third edition of the guide by the American Civil Liberties Union, called "The Rights of Indians and Tribes," published by Southern Illinois University Press, could go a long way in assisting the general education of tribal peoples on this important theme. Organized in a question and answer format, the new edition is more accessible than most reference books. Its wide distribution will help to encourage Native students, indeed, all Native people, to become fluent in what makes American Indian tribal nations unique in the United States. We congratulate its principal author, attorney Stephen L. Pevar, for this valuable contribution, which upholds the general ACLU philosophy that "an informed citizenry is the best guarantee that the government will respect civil liberties." Pevar, who cut his teeth as a legal aid attorney on Rosebud Reservation in South Dakota during the turbulent early 1970s, is well suited to the task.
There is a lot to know about Indian rights and perhaps this is what makes it difficult to have a clear idea of its foundations. The legal structure of Indian tribal and individual standing in federal law, which would seem simple and clear, is actually quite complex and often obscure, built not only on discovery and conquest but also on a convoluted and contradictory history of shifting federal policies as well as hundreds of precedent-setting court cases. This makes it difficult to understand, explain and argue the many issues of tribes from solid positions. This book that explains, by its question and answer method the many twists and turns of tribal self-determination, will also provide useful avenues of defense. The history is primarily one of rights retained, fought over and held by sheer force of courage and wit, with not a little stubbornness and a lot of sweat. To paraphrase from the introduction: "A better question to ask than "Do I [we] have the right to do this?" is "Does the government have the right to stop me [us] from doing this?" With Indian rights, as many leaders have reminded their tribes, you either "use them or lose them."
Pevar's book provides an excellent overview of the contradictory history of shifting federal Indian policy, from the period of complete tribal independence through the time dominated by treaties, to relocation, allotment and assimilation, Indian reorganization and termination of tribes, to the current policy of tribal self-governance, written into law in 1975.
The specific definitions and uses of such terms as Indian Country, Indian tribe, Indian title, are provided, as is excellent and succinct analysis of issues, citing court cases and patterns of history. As Pevar explains, he is attempting to describe, as directly as possible, where Indian rights actually stand, what it is, rather than what "ought to be."
For all the economic gains of the past decade, Indian country is in bad shape still. One third of Indian households remains below the poverty level, in homes suffering substandard conditions. Unemployment in many reservations is upwards of 50 percent and some places as much as 80 percent. At Navajo, 80-plus percent of homes have no telephone service. Despite the major economic gains of high-stakes gaming establishments, Indian country is quite impoverished. Pevar's book cites consistent sources in court cases, Native scholarship and the Native press. We are pleased that Indian Country Today was useful to Pevar as a source of reference.
Pevar's book delineates the range of doctrine, policy and practice that encompasses Indian rights. Pevar answers pertinent questions on Trust responsibility; Indian treaties; federal power over Indians; criminal jurisdiction in Indian country; civil jurisdiction in Indian country; taxation; Indian hunting and fishing rights; Indian water rights; civil rights of Indians; the Indian Civil Rights Act; the unique status of certain Indian groups; Indian gaming; the Indian Child Welfare Act and judicial review. This very important knowledge resource should be required reading for every Native high school and college student in the country. Not a few others in Indian country could also benefit by its insightful and refreshing information.
Pevar pins down the legal scoop on many interesting situations, such as the case of dual citizenship status, whether an Indian can be a U.S. citizen and a citizen of a tribal nation at the same time. An American Indian can. This was decided in a Supreme Court case of 1916.
On Trust responsibility: "The promises made in exchange for millions of acres of tribal land impose on the federal government 'moral obligations of the highest responsibility and trust.'"
Of great importance in relationship to federal law is that the rights of Indians and tribes are not based on racial definitions. Pevar: "? the Constitution expressly authorizes Congress to regulate commerce with Indian tribes; thus, there is a constitutional basis for enacting laws unique to Indians." Laws relating to Indians are not to be viewed as racial legislation. Why? Because Indians "were early inhabitants of this territory." Judged the Supreme Court in 1974: "The Constitution gives Congress the power to treat Indians as a 'separate people.'"
This "Plenary power" of Congress over Indian tribes can be a double-edged sword. Beyond the quagmire of race classification is the potential that Congress will again limit Indian rights or may attempt to once again terminate tribal nations from federal recognition. In 1995, this danger almost took a serious bite out of Indian legal standing. A series of bills that some say would have been a mortal blow to the whole structure of American Indian tribal rights, mostly the brainchild of U.S. Senator Slade Gorton, R-Wash., were barely fought off. A congressional fight of major proportions was needed, and tribes did ultimately prevail against the malignant legislation. Later, the same tribes who fought Gorton helped to defeat him with an Indian-endorsed democrat as opponent.
In that campaign, as we will see increasingly, it was the power of solid information and the ability to broadcast it that won the day for U.S. tribes. Pevar's book is a good contribution to building a constructive base of knowledgeable people that can link up to be effective pro-tribal advocates in national campaigns. Tribes might consider giving this book away to their many friends and acquaintances this holiday season. It will be a gift to the benefit of all our generations.