AIS 102 American Indians and the U

AIS 102 American Indians and the U.S. Political System - Fall 2004

Diana Ortiz

AIS 102

E-Mail: or

Required Texts:

Pevar, The Rights of Indians and Tribes, 3rd ed.

Canby, American Indian Law, 3rd.ed.

TIMELINE

August 22-29
Introduction and orientation; Indians/Indian Tribes
Canby: Chapter 1,
Pevar: pgs. 18-24; Chapter 15

August 30-September 5
Tribal Sovereignty/ Public Law 280
Canby Chapter 5, 8
Pevar: pgs. 122-128;

September 6-12
History and Development of Federal Policy
Canby, Chapter 2
Pevar, Chapter 1; 121-122, General Allotment Act

September 13-19
Tribal-Federal relationship; Freedom of Religion
Canby: Chapter 3, pgs. 313-324
Pevar, Chapters 3, 5

September 20-26
Modern Tribal governments - their structures and powers
Canby, Chapter 4
Pevar, Chapter 6

September 27-October 3

Tribal Gaming
Canby: Chapter 10
Pevar: Chapter 16

*October 4-17
MID-TERM

October 11-17
International Relationships; Indian Child Welfare Act; NAGPRA
Canby, pgs. 324-342
Pevar, Chapters 13, 14, 17

October 18-24
Indian lands and land claims; Native Hawaiians
Canby: Chapter 12
Pevar: pgs. 24-27

QUIZ/ASSIGNMENT: due Oct. 23

located in the quiz/exam folder

October 25-31
Treaty rights
Canby: Chapter 6

Pevar: Chapter 4

November 1-7
Hunting and fishing rights
Canby: Chapter 15
Pevar: Chapter 11

Novemebr 8-14
Water Rights
Canby: Chapter 14
Pevar: Chapter 12

November 15-21
Civil and Criminal Jurisdiction
Canby, Chapter 7
Pevar, 7, 8, 9

*November 24
Paper Due

November 29-December 5
Taxation And Regulation
Canby: Chapter 9
Pevar: Chapter 10

*December 6-17
FINAL EXAM

Lecture 1

American Government Review
Sources of Law
There are several sources of law in the United States:
Constitution
Statutes
Treaties
Case law – court interpretations of the law
We will be discussing all of these sources in this class.
Governmental Branches
The following is a review of the roles and functions of the three governmental branches. We will be addressing topics this semester that involve all three branches.
The three branches of government are: Executive, Legislative and Judicial. The role of the Legislative branch is to create law through the passage of statutes. The role of the Judiciary is to interpret law and the role of the Executive is to implement law.
Legislature
Congress is comprised of the House of Representatives and the Senate. The House of Representatives has 435 members. The Senate has 100 members (2 from each state).
In California, the legislative branch is comprised of the Senate, with 40 members, and the Assembly, with 80 members. (As you will see during the semester, the state plays a very limited role in Indians affairs).
Executive
The President heads up the executive branch of the federal government. Beneath the President, are numerous federal agencies, such as the EPA, Dept. of Interior and the Bureau of Indian Affairs. (The Bureau of Indian Affairs is an agency within the Dept. of the Interior).
At the state level, the governor heads up the executive branch and also has numerous agencies beneath him.
Political Parties
Republicans hold a majority in both the Senate and the House of Representatives, and the current President is Republican.
Does it make a difference which political party a political representative is from? Yes. The Democratic Party generally supports taxation, regulation and social programs while Republicans support lower taxes, particularly for corporations and the highest tax brackets, less social spending and less federal regulation. It has been said that the Republican Party represents the wealthy. This is primarily due to their emphasis on reduced social spending, such as subsidized housing and welfare.
When voting takes place on Capitol Hill, most politicians are expected to follow party lines. As you will see, politics is not a pretty business, hence the old adage: there are two things that you don’t want to see made - sausage and law. (In this class, we will not look at sausage, but we will be looking at law).
In addition, the president makes federal judicial appointments, but these must be confirmed by the Senate. This gives the Senate power to block appointments. This is a ploy that was used by the Republican Senate during the Clinton administration to ensure that Democratic judges were not appointed.
There is an increasing number of Indian Republicans, but since becoming U.S. citizens, Indians have been predominantly Democrats. Why are there now more Indian Republicans? Some tribes have increasing resources and depend less on government grants to provide governmental infrastructure. These resources have also resulted in little or no need for welfare and similar social programs for tribal members. This has occurred on reservations that previously suffered from severe poverty. This changes the needs of both the tribe and the individual, and often changes their political ideology.
Creating Law
Some of you may remember the cartoon that featured a bill on the capitol steps, and sang a catchy little tune about how laws are made. If you don’t, that’s okay, I’ll give you my version – but I’m sorry there is no song to accompany this.
Laws start as bills and are launched by a committee that addresses that type of bill. For example, the Senate Select Committee on Indian Affairs addresses all Indian issues in the Senate (The House Resources Committee addresses Indian issue in the House of Representatives). A bill must be authored by at least one legislative representative, and is often sponsored by more than one. (The ideas belong to the representatives, but the bills are actually written by a department of the government, who do nothing but write laws).
If the committee passes the bill, it then goes to the full legislative body. For example if the Senate Select Committee on Indian Affairs passed a bill, it would then be heard on the floor of the Senate. If the Senate passes it without changes, it then goes to the House of Representatives, where it once again must go to a committee before being heard on the floor. If any changes are made to the bill while in the House of Representatives, it must return to the Senate committee, then the Senate floor for approval of those changes. This process can keep bills bouncing back and forth for quite some time before a statute is actually passed, and the final version of the bill often has little in common with the original bill. Once Congress passes a bill, it must be signed into law by the President. If the President vetoes a bill, it requires a 2/3 vote of Congress for the bill to become law. It is therefore very difficult for a bill to become law without the consensus of the President.
When you read a bill, you can tell where it originated by the letters preceding the bill number. If it begins with “S” it originated in the Senate. If it begins with “HR”, it originated in the House of Representatives.
Similarly, state bills begin with “SB’ if they originated in the Senate, and “AB” if they originated in the Assembly.
Judiciary
The role of the Judiciary is to interpret the law. Keep this in mind as the semester proceeds. At times it may seem that the judiciary has lost sight of their role.
The federal judicial system consists of three levels. All cases are first heard in the District Court. If a party is not happy, he or she may appeal to the Court of Appeals for the district in which the original action was heard. There are 11 appellate judicial districts, known as circuits. In California, we are in the 9th Circuit. Any decisions made by the 9th Circuit are only valid law in our region. There are many times when different circuits come up with conflicting opinions, and therefore, conflicting law.
If a party is unhappy at the appellate level, they can apply to have the case heard by the U.S. Supreme Court by filing what is know as a petition for certiorari. (There may be footnotes or citations to cases throughout the semester that read “cert. denied”. This means that the Supreme court refused to hear the case). The petition is simply a request for the Supreme Court to hear the case. The U.S. Supreme Court is under no obligation to hear cases, and takes only those cases that they want to hear. They hear only cases involving areas of federal law (as opposed to state law). They are suppose to take all cases in which there is a conflict among the appellate courts, but this doesn’t always happen. (The current Supreme Court has taken fewer cases than any court in history).
The judiciary is not considered a political body, but remember the President appoints Supreme Court justices and the appointments are ratified by the Senate. Presidents tend to select justices that have similar political views. Once appointed, the justices serve for life, or retirement whichever comes first. Thus, the President’s political views can carry over into the courts long after he has left office.
Many of the current justices were appointed by conservative Presidents. We therefore have a conservative court, which supports state’s rights and has not been particularly kind to Indian interests. (A recent study indicated that the current U.S. Supreme Court upholds criminal rights more often than it upholds tribal rights).
Political Power
What does it take to have political power? Money. Political campaigns are very expensive, and most candidates are in need of funds. It is illegal to offer a large campaign contribution (or a small contribution) in exchange for a vote on a specific issue. It is not illegal, however, to offer a campaign contribution and at some later time, ask for a vote on a specific issue. The end result is that money buys political power so gaming tribes are often politically powerful.
Keep these concepts in mind as we move forward throughout the semester.
TRIBAL SOVEREIGNTY
What is an Indian Tribe?
A tribe is a group of Indians recognized as constituting a distinct and historically continuous political entity for at least some governmental purposes. There are both federally-recognized and non-recognized tribes. Federal recognition allows tribes to build a governmental infrastructure and entitles tribes to federal grants for medical services, housing, etc., but not all federally-recognized tribes have land. You will see when we discuss termination, that in the 1950s many tribes lost their land and still remain landless.
Federal recognition may arise from a treaty, statute, executive order, administrative order, or from a course of dealing with the tribe as a political entity. The BIA determines which tribes will be recognized, but it was not until 1978 that they promulgated a set of rules setting forth the requirements for recognition. Prior to 1978, this was done on a case by case basis. Since then, bills have been introduced in Congress, at various times, which would take this task from the BIA and give it to an independent commission appointed by the President. Congress has thus far not passed any such bill and it still remains within the domain of the BIA.
Among the requirements for recognition are that:
1. The tribe must have a government that exercises power over its members; and
2. The tribal government continued to function as an autonomous entity throughout history until the present; and
3. The tribe has been identified as an American Indian entity on a substantially continuous basis since 1900 (This can be demonstrated by using books, magazines, anthropologists, historians, etc.); and
4. The tribe occupies a specified territory or inhabits a community viewed as distinctly Indian.
If the BIA does not follow their own criteria, a tribe seeking recognition can appeal to an administrative board, then to federal court. There is no right to contest the criteria for recognition – only the application of the criteria to a particular tribe.
Example: (The following example is completely fictitious and is used for demonstrative purposes only). The First People’s Tribe was a federally-recognized tribe in OrangeCounty. In 1950, OrangeCounty began to flourish and the tribe began to intermarry. By 1960, there was little interest in tribal affairs. The reservation was leased to Disneyland and the tribal members disbursed throughout the community. In 2000, Proposition 1a was passed, which allows Indian tribes to have casinos. Descendants of the First People’s Tribe now want to re-establish their tribal government and open a casino. Should the tribe still be federally recognized?
No, the tribe would no longer have federal recognition. Once a tribe receives recognition, it can lose recognition only by:
1. Voluntarily ceasing to function as a government; or
2. Congress can decide to no longer recognize the tribe.
In the example, the tribe ceased to function as a government, so they are no longer entitled to federal recognition.
There are a few cases in New England where a state recognized a tribe but the federal government did not. The states recognized tribes, took their land and gave tribes reservations and financial assistance as a reward for siding with colonists in 1776. Some tries later petitioned for, and some have received, federal recognition.
There have been many cases where the federal government has placed more than one tribe on a single reservation and recognized this new tribe by another name. For example, the Blackfeet Tribe is comprised of the Blackfoot, Bloods and Piegans – three distinct tribes. Their northern counterparts remain separate tribes in Canada.
Who is an Indian?
Many of you are of mixed ancestry. Do you know exactly what fraction of ancestry you have from each nationality? Most Indians know exactly how much “Indian blood” they have because it is required for various purposes.
The textbooks discuss four definitions of “Indian”.
1. Tribal requirements
2. Federal jurisdiction
3. General meaning
4. Census Definition
Tribal Definition
Tribal enrollment is specifically within the jurisdiction of the tribe itself. Blood quantum required for tribal enrollment varies from tribe to tribe. Some tribes, such as the Cherokee, have no blood quantum requirement while others, such as the Mississippi Choctaw require that members have ¾ Indian blood quantum. Other tribes have recently introduced a requirement that an individual must live on the reservation to become enrolled.
When there is no blood quantum requirement, an applicant for enrollment must be able to trace their ancestry to a tribal member, and in some cases the applicant’s mother or father had to be an enrolled member of the tribe.
A tribe can change its requirements for enrollment at any time that it chooses. For example, Santa Clara Pueblo required that the mother be an enrolled member of the Pueblo for her children to be enrolled. The tribe later changed the requirement so the father had to be an enrolled member. Mrs. Martinez had a child and attempted to enroll her child. The child had the requisite blood quantum, but since the father was not an enrolled member, the child was ineligible for enrollment. (Mrs. Martinez sued the tribe in federal court in an attempt to get her child enrolled, but she lost).
Federal Definition
To receive government services, in many cases, but not all, there is a requirement of ¼ Indian blood from a federally-recognized tribe. The federal government does not consider members of non-federally-recognized tribes to be Indians. As we will discuss in more detail later, in the 1950s, Congress terminated many tribes. When the tribes were terminated, that is, no longer federally-recognized, the individual tribal members were no longer considered Indians by the federal government, and were no longer eligible for federal services.
Enrollment does not always determine jurisdiction. Often eligibility for enrollment is enough to consider an individual a “member” of a federally recognized tribe for purposes of application of federal law.
General Definition
If you have 1/252 degree of Indian blood, does this make you an Indian under the general definition?
The general definition of an Indian is that:
1. The individual must have some degree of Indian blood; and
2. The individual must be recognized as an Indian by the relevant community.
In my example, you have met part one of the test because you have some Indian blood. Part two depends on how the community recognizes you. If you are enrolled in a tribe with no blood quantum requirements, you have clearly fulfilled the second part of the test. If you are not enrolled in a tribe, it may be a harder matter to prove and your success may depend on the purpose for which you are using the identification.
One question for you to ponder is this: “Indian blood” defines who is and is not an Indian so if an individual is ¼ Indian and receives a blood transfusion from a non-Indian, is he still ¼ Indian?
Census Definition
Does the census definition accurately reflect who is or is not an Indian?
The census considers anyone to be an Indian who claims to be an Indian. This often results in large discrepancies between the other definitions of an Indian and the census definition. Indians living on the reservation often do not respond to census requests, while other individuals who have some Indian blood, but are not enrolled in a tribe, may report themselves as an Indian to census takers. For example, the 1990 census reports that the Blackfeet tribe has 32,234 members, while the tribe reports approximately 14,500 for the same period.
Indian Country
Indian Country will become more relevant later in the semester as we talk about Indian land holdings and jurisdiction.