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Home > ‘Non-Status’ Indians in the U.S.? Part 1: A Lesson From the Canadian Supreme Court in Daniels v. Canada.
‘Non-Status’ Indians in the U.S.? Part 1: A Lesson From the Canadian Supreme Court in Daniels v. Canada.
The recent Supreme Court of Canada decision in Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12, the Court was asked to resolve the question of whether “Metis” (Mixed Bloods) and “Non-Status Indians” were Indians under the Constitution and Laws of Canada. The Canadian Supreme Court found that, indeed, both were “Indians” for purposes of the Canadian Constitution and Law(s) and thus entitled to the same benefits though Canadian Law as “Status Indians”.
“Status Indians” or,“Registered Indians”, have rights and benefits that are not granted to unregistered Indians, which include the granting of reserves (Reservations) and of rights associated with them, an extended hunting season, a less restricted right to bear arms, an exemption from federal and provincial taxes, and more freedom in the management of gambling and tobacco sales.
“Non-status Indian” is a legal term referring to any First Nations individual who for whatever reason is not registered with the federal government, or is not registered to a band which signed a treaty. It was possible under Canadian Law for a “Status Indian” to become a “non-Status Indian” under certain circumstances that had previously been codified by Canadian Law at a time when Canadian Indian Law was influenced by policies seeking to “assimilate” Indians and even “terminate” the Canadian Federal fiduciary relationship with Tribes and individual Indians. For several decades, status Indian women automatically became non-status if they married men who were not status Indians. Prior to 1955, a status Indian could lose their status and become non-status through “enfranchisement” (voluntarily giving up status, usually for a minimal cash payment and the right to vote), or by obtaining a college degree or becoming an ordained minister. For several reasons there were policy changes in Canadian Law regarding Indians which took a more enlightened and humanistic approach to maintaining Indian Identity and Community. These changes and the resulting inconsistencies in the treatment of Indians under Canadian Law led to several court cases and Federal Acts calling for a more consistent and humane approach.
“Metis” are mixed Indian and Non-Indian, some affiliated with an Indian Community or Reserve and some not. Metis had historically been treated as Indians and looked upon as Indians to one degree or the other. Again, the Constitutional changes, court interpretations and statutory changes had worked over time to create a patchwork of law that sometimes recognized the Metis as Indians and sometimes did not. One circumstance contributing to the inconsistencies was the “diffusion” of the Metis across the whole of Canada sometimes in recognized “Indian or Metis Communities” and sometimes not.
The question I pose in this series is: Whether the United States Constitution and Laws do, or could, recognize non-federally recognized tribes and their members, state recognized tribes and their members, and individual Indian “Descendents” from “historic” tribes, and other indigenous people in the United States, as having a “trust/fiduciary relationship” with the United States under a similar analysis as the one used by the Supreme Court of Canada?
This is not meant to be a “Law Review” Article and I shall leave that to some enterprising Law Student to research and write. However, the answer to the posed question could have myriad effect on the individual Indians in the united states who are not members of “Federally Recognized Tribes”, or were “derecognized” or “terminated” or “disenrolled from Federally Recognized Tribes”, or are members of “State Recognized Tribes”, or Indians that can show descendantcy from a historic tribe or tribes but don’t meet “enrollment” criteria in any Tribe, or are descendants from other Indigenous People in the United States and its territories, such as Hawaii and Puerto Rico. Alaska Natives at one time were treated as an afterthought by the United States and the Department of Interior and the Bureau of Indian Affairs did not consistently act towards them as they did Federally Recognized Tribes with regard to federal benefits or treatment as governments. Some were recognized to have governmental status and some were not. Of course, with the realization of the vast mineral wealth and other valuable natural resources, the U.S. Government needed a way to control and exploit that wealth and secure the resources. The Alaska Native Claims Settlement Act was born so the U.S. could maintain “dominion” over the land and resources and assume “jurisdiction” over the Indigenous population therein.
In a Nutshell (pun intended), are there a class of Native Americans similar to Canada’s “Status Indians” and/or a class of “Indigenous Native Americans”, similar to Canada’s “Non-Status Indians”, to whom the U.S. may owe a fiduciary responsibility which it is now shirking? Could the U.S. take a lesson from Canada in resolving outstanding issues with regard to Native Hawaiian Recognition as Native Americans with attributes of sovereignty, including governmental rights over their people and lands? Could the same reasoning apply to other Indigenous populations in the American “Territories” that are in a state of limbo due to the inconsistencies in Federal Law as it applies to American Indigenous Populations? And, last but perhaps most importantly, does International Law and the United Nations Declaration on the Rights of Indigenous Peoples militate for the United States to answer these question in the positive? Many people to not know or understand that the United States ratified the Geneva Conventions Against Genocide and placed “some” of the provisions into U.S. Statutory Law and those expressions of law lend support for certain “positive” treatment of Native Americans and other Indigenous populations in America, and militate against “negative” treatment that may violate the provisions of International Law and the provisions in the U.S. Code. Perhaps most importantly, do they provide a “check” on the supposed “Plenary Power” of Congress over Native American Affairs?
In the next installment we will examine the Canadian Supreme Court Opinion in Daniels V. Canada in more detail and look at some parallels with regard to U.S. Federal Law and Court Decisions.
Harold Monteau is a Chippewa Cree Attorney of Metis descent and writes from New Mexico. He is the former Chairman of the National Indian Gaming Commission (NIGC) and an Economic Development and Finance of Economic Development Consultant. His Email is hamlaw@live.com.
Full name:
Harold Monteau
Published on Indian Country Today Media Network.com (http://indiancountrytodaymedianetwork.com)
Home > Non-Status Indians in the U.S., Part 2: Daniels v. Canada/Crown
Non-Status Indians in the U.S., Part 2: Daniels v. Canada/Crown In the recent Supreme Court of Canada decision in Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12, the Court was asked to resolve the question of whether “Metis” (Mixed Bloods) and “Non-Status Indians” were Indians under the Constitution and Laws of Canada. The Canadian Supreme Court found that, indeed, both were “Indians” for purposes of the Canadian Constitution and Law(s) and thus entitled to the same benefits though Canadian Law as “Status Indians”.
In this Part 2 of this series on the Canadian Supreme Court Decision in Daniels v. Canada we examine the case in the context of answering the following questions I posed in Part 1:
Are there, in the United States and its Territories, a class of Individual Native Americans similar to Canada’s “Non-Status Indians,” to whom the U.S. may owe a fiduciary responsibility which it is now shirking? (For that matter are their Indian Communities in the U.S. and its territories, similar to the Metis communities in Canada, that should be recognized to have “beneficiary status” as Indian Communities?)
Could the U.S. take a lesson from Canada in resolving outstanding issues with regard to Native Hawaiian Recognition as Native Americans with attributes of sovereignty, including governmental rights over their people and lands? Could the same reasoning apply to other Indigenous populations in the American “Territories” that are in a state of limbo due to the inconsistencies in Federal Law as it applies to American Indigenous Populations?
Does International Law and the United Nations Declaration on the Rights of Indigenous Peoples militate for the United States to answer these question in the positive? Many people to not know or understand that the United States ratified the Geneva Conventions Against Genocide and placed “some” of the provisions into U.S. Statutory Law and those expressions of law lend support for certain “positive” treatment of Native Americans and other Indigenous populations in America, and militate against “negative” treatment that may violate the provisions of International Law and the provisions in the U.S. Code. Perhaps most importantly, do they provide a “check” on the supposed “Plenary Power” of Congress over Native American Affairs?
(My apologies for setting out so much of the Canadian Supreme Court’s opinion verbatim. My goal here is to set a foundation upon which the reader may recognize the similarities in Canada’s treatment of its Aboriginal People, from a legal standpoint, to the treatment by the United States’ of the Indigenous populations of America.)
The Canadian Supreme Court said in Daniels, “a good relationship with all Aboriginal groups was required to realize the goal of building the railway and other measures which the federal government would have to take. With jurisdiction over Aboriginal peoples, the new federal government could “protect the railway from attack” and ensure that they did not resist settlement or interfere with construction of the railway. Only by having authority over all Aboriginal peoples could the westward expansion of the Dominion be facilitated”.
The history of the United States and its treatment of American Indians is very similar to Canada’s history in that there was a “necessity”, from the Federal Government’s standpoint, to deal with Indian Tribes for treaties to keep the “Peace” and to gain “Dominion” over Indian lands so that the Federal Government could carry out the theory/doctrine of “Manifest Destiny”. The Spaniards, influenced by the Holy Catholic Church, had engaged in “Ecclesiastic Debates” as to whether the native populations of the Americas were even “human” or something akin to “animals”. If it was the latter, they could be annihilated, exterminated or domesticated to facilitate the colonization of the lands. If it was the former, then the Natives had to be dealt with as Spain was dealing with other nations that it conquered or colonized. While Spain chose the latter, it did so recognizing that it could do the former if the Native Populations resisted becoming Human Christians. The practice of “Treating” with the Indigenous population of the British Colonies and French “Possessions” on the other coast of North America was adopted by the colonizing countries and their successor governments, but also with the same “policy” of submission or death, with annihilation, extermination and removal the practice of the day without the pesky interference of the Church (Catholic or otherwise).
(Continued)
The Daniels Court found that “the federal government has at times assumed that it could legislate over (Métis) as “Indians”. The 1876 Indian Act banned the sale of intoxicating liquor to “Indians”. In 1893 the North-West Mounted Police wrote to the federal government, expressing their difficulty in distinguishing between “Half-breeds and Indians in prosecutions for giving liquor to the latter”. To clarify this issue, the federal government amended the Indian Act in 1894 to broaden the ban on the sale of intoxicating liquor to Indians or any person “who follows the Indian mode of life.”
This is but one example among many of “The Crown” taking responsibility to legislate as to “individual” Indians versus legislating about Tribes or Tribal Nations. Canada merely encoded the “practice” and “processes” of the time which “presumed” that Indians were the responsibility of the Crown and not so much a Provincial or local responsibility.
The Court continued, “Moreover, throughout the early twentieth century, many Métis whose ancestors had taken scrip continued to live on Indian reserves and to participate in Indian treaties. In 1944 a Commission of Inquiry in Alberta was launched to investigate this issue, headed by Justice William Macdonald. He concluded that the federal government had the constitutional authority to allow these Métis to participate in treaties and recommended that the federal government take steps to clarify the status of these Métis with respect to treaties and reserves: Report of Mr. Justice W.A. Macdonald Following an Enquiry Directed Under Section 18 of the Indian Act (1944).
The Court went on, “Justice Macdonald noted that the federal government had been willing to recognize Métis as Indians whenever it was convenient to do so (emphasis mine): Not only has the federal government legislated over Métis as “Indians”, but it appears to have done so in the belief it was acting within its constitutional authority. In 1980, the Department of Indian Affairs and Northern Development wrote a document for Cabinet entitled Natives and the Constitution. This document clearly expressed the federal government’s confidence that it had constitutional authority to legislate over Métis.
The court thus opined, “The term “Indian” or “Indians” in the constitutional context, therefore, has two meanings: a broad meaning, as used in (citation omitted)), that includes both Métis and Inuit and can be equated with the term “aboriginal peoples of Canada” used in (citation omitted), and a narrower meaning that distinguishes Indian bands from other Aboriginal peoples. A broad understanding of “Indians” under (citation omitted) as meaning Aboriginal peoples’, resolves the definitional concerns raised by the parties in this case. Since (citation omitted) includes all Aboriginal peoples, including Métis and non-status Indians, there is no need to delineate which mixed-ancestry communities are Métis and which are non-status Indians. They are all “Indians” under (citation omitted) by virtue of the fact that they are all Aboriginal peoples. It is about the federal government’s relationship with Canada’s Aboriginal peoples. This includes people who may no longer be accepted by their communities because they were separated from them as a result, for example, of government policies such as Indian Residential Schools. There is no principled reason for presumptively and arbitrarily excluding them from Parliament’s protective authority.
(Please note that most citation refer to sections of The Indian Act and/or Constitutional Provisions.)
The Canadian Court essentially was saying that the Federal Government cannot claim Jurisdiction over Aboriginal people, be they Status Indians, Metis or non-Status Indians, ONLY when it is convenient to do so and not claim it when it is not convenient to do so. For the most part the Crown conveniently did not include the Metis and “Non-Status Indians” because to do so would put the Federal Government at liability for the full panoply of rights and benefits afforded to “Registered” Indians, which is another term used for “Status Indians”.
While the United States Indian Policy swings over 200 or so years has varied from “wars of conquest and submission” to the current “Self-determination and Self-governance”, the central theme of “assimilation” persists to this day. Many states still endorse assimilationist policies which are either still supported by Federal Law or not “repudiated” by Federal Law. Witness the present fight over state court enforcement of the Indian Child Welfare Act and the challenges to that “anti-genocide” Federal Act that are currently making their way through the courts. Witness also the many “intrusions” of state law and taxation into tribal homelands that are either permitted by Federal Law or not repudiated in Federal Law, most of the time out of apathy. The Supreme Court of the U.S. (SCOTUS) has said that the “power to tax is the power to destroy” and the States, most of the time without interference of the Federal Government to any great degree, continue the assault on Tribal existence at every opportunity.
In Part 3 we will examine how International Law and the United Nations Declaration of the Rights of Indigenous Peoples, coupled with the historic treatment by the United States of “Indians” and “Indian Tribes” perhaps dictates the recognition of some kind of “Indian Status” to individual Indians and Indian Communities that are not presently under Federal Recognition as Tribes.
Harold Monteau is a Chippewa Cree Attorney of Metis descent and writes from New Mexico. He is the former Chairman of the National Indian Gaming Commission (NIGC) and an Economic Development and Finance of Economic Development Consultant. His Email is hamlaw@live.com.
Full name:
Harold Monteau
Read more at http://indiancountrytodaymedianetwork.com/print/2016/05/22/non-status-indians-us-part-2-daniels-v-canadacrownThe ethnicity of Canadians is very similar to Americans, but the way the government deals with it has been different. The Canadian government has an ugly legacy of relations with Indigenous peoples. But as ugly as that history is, it is not as soaked in blood as the American government’s history. I think this history is part of why things are different today.
Also Canada didn’t declare war on Britain to become a country. So the historic relations between Indigenous populations and the Crown are still valid. Unlike the US, where the Indigenous agreements with European governments were scrapped after the revolution. The US government essentially declared war on the Shawnee and the Lenape with the American Revolution. The British had an agreement not to go into the land west of the Alleghenies, which the US did not honor.
The Spanish have an even uglier history with Indigenous populations. Yet so many Spanish men and so few women came to Turtle Island in colonial days, that today it’s estimated that 80-90% of Mexicans have a Native American maternal haplogroup.
This may seem like unimportant history to some, but it set the stage for the way things are today.
Places like Virginia and Quebec have worked to minimize their mixed-ancestry. There are likely millions of mixed-blood descendants from the ancestors who occupied these areas in the 1600s. It seems threatening to some to acknowledge this fact.
America needs to come to terms with it’s own ‘melting-pot’ identity and remember it’s own history to move forward the way Canada is (grudgingly).
Keep in mind Harry Daniels started this Metis court case in the 90s, it took nearly 20 years for the government to recognize mixed people as “Indians” under the constitution after dragging their feet as long as they could.
Great comments Marc! I know anything worth fighting for can take a lifetime if not many, but its like the light at the end of a long tunnel seeing what Canada is doing. So many here in the states are being dis-enrolled or even DNA tested after a lifetime tribal member, just to be told they don’t fit in anymore genetically. And we all know, DNA isn’t proof positive either!
I know many tribes here in the states would have issues stating the “wanna-be’s” might fall into the category and would request guidelines for the non-Fed recognized and Non-status peoples afraid of others not living a life of the peoples.
However, its the greed I so worry about if this even ever became possible.
There are so many tribes that are the same, but fractured. Several Shawnee tribes, Cherokee, Tuscorora’s, Etc……I think for things like this to work, they might have to dissolve their lines and borders and merge into one and SHARE. Share the history, share the land and share in the future, together.
I know, pipe dreams and all, but hey…..Tecumseh saw it….why cant more….
Non-Status Indian in the United States: Part 3 of Daniels v. Canada/Crown (In researching for this Article I realized that I will have to write a Part 4 just to accommodate the “Policy Swings” that took place after the 1934 Indian Reorganization Act up to the present with regard to the U.S. recognizing its Trust Responsibility to “individual” Indians and not just Indians enrolled in Federally Recognized Tribes.)
In this, Part 3 of my commentary on the Canadian Supreme Court case of Daniels V. Canada, I continue to answer the questions I posed in Part 1 and Part 2 as to whether the U.S. should follow the lead of Canada and recognize “other classes of Indians and Indian individuals” beyond just Federally Recognized Tribes in light of the U.S. doing so in the past when it wanted to maintain control of Indian Lands and resources as well as control over the lives of “individual Indians” and their interactions with non-Indians and States?
The Canadian Supreme Court, in Daniels v Canada/Crown, in which the Court found that the Canadian Metis, and Non-Status Indians were “Indians” (under the Canadian Constitution and Laws) to whom the Canadian Government must extend the same benefits as it does to Canadian Status Indians (Treaty Indians and those with Reserves) no matter if they had their own land or communities, but descended from Historical Tribes or Indian ancestors. The Daniels Court reasoned that because Canada had. throughout the History of its relationship with its Indigenous Population, assumed it had, and did exercise, its authority over not only “Treaty Indians” and “Status Indians” but also over other Indians, individual Indians and Metis (Mixed Bloods) when it was “convenient to do so”, should not then disavow the relationship when it was not convenient or was costly to do so. (Emphasis mine.)
The history of the development of Federal Indian Law in the U.S. reveals a marked similarity to the development of Canadian Law regarding the United States’ relationship with individual Indians as individuals as well as Tribes. As with Canada, the U.S. has assumed jurisdiction over the Indian Tribes and Indian individuals when it was “convenient” to do so and/or to protected some “interest” that the United States asserted, especially with regard to land and resources, but also with regard to the lives of individual Indians, be they Treaty Reservation Indians or not.
As with Canada, much of U.S. Indian Policy, since the U.S. became an independent nation, has been driven by the need to control “dominion” over, and settlement of. what was previously Indian Lands. First the Colonial Government(s) and then the successor United States Government, though various enactments, asserted control over who could “Treat” with the Indians for land cessions, ultimately claiming an “exclusive” right to make Treaties and pass laws with regard to Indians. These were called the “Intercourse Acts” or “Non-Intercourse Acts”. The Trade and Intercourse Act of 1834 is an example of one such Act in which the U.S. exercised its “exclusive” right to legislate in the field of Indian Affairs. Interestingly, this Act is both an exercise of the U.S. claiming exclusive “Dominion” over “Indian Country, while at the same time exercising its claimed exclusive jurisdiction over the conduct of individuals within Indian Country for purposes of Criminal Jurisdiction while exempting individual Indians. The 1834 Act provides “That so much of the laws of the United States as provides for the punishment of crimes committed within any place within the sole and exclusive jurisdiction of the United States, shall be in force in the Indian country: Provided, the same shall not extend to crimes committed by one Indian against the person or property of another Indian.”.
In passing a series of statutes dealing with the “civilization” and “assimilation” of Indians, Congress also began to legislate certain policies that required Indian Children be educated “in the ways of “civilized” man. One of the early pieces of such legislation was the “Act of March 1819 entitled “An Act making provision for the civilization of the Indian tribes adjoining the frontier settlements. It provides: “That for the purpose of providing against the further decline and final extinction of the Indian tribes, adjoining the frontier settlements of the United States, and for introducing among them the habits and arts of civilization, the President of the United States shall be, and he is hereby authorized, in every case where he shall judge improvement in the habits and condition of such Indians practicable, and that the means of instruction can be introduced with their own consent, to employ capable persons of good moral character, to instruct them in the mode of agriculture suited to their situation ; and for teaching their children in reading, writing, and arithmetic..”
The U.S. passed legislation throughout the 19th century dealing with the “Introduction of Intoxicating Liquor” to Reservations and the control of “Traders” (1790) in Indian Country. The U.S. even had an “exclusive” on Trading wherein the only Trading Houses authorized were “Federal” Trading Houses (1796-1822). These Federal Acts were passed to carry out the Congressional intent of protecting individual Indians from unscrupulous Traders and the “depredations” caused by “introduction of Intoxicating Liquor” and the cheating of Indians by unlicensed and licensed traders alike. The officials supervising these Federal Trading Houses were referred to as “Superintendents”, thus creating a system of “Indian Agents and/or Superintendents” who were responsible for carrying out the policies of the Federal Government and enforcing such laws as were the basis of such policy. The first of these was passed in 1775 and, interestingly, named Benjamin Franklin and Patrick Henry as “Commissioners” of one of the three geographical “Departments” delineated in that Act. In 1789 the First Congress created the “War Department” and placed Indian Affairs under the Secretary of War. In subsequent Acts during this time period Congress began to refer to the U.S. Officials under the Secretary as “Superintendents” signifying their duty of overseeing the daily lives of the Indians in their care. . Secretary of War Calhoun created the “Bureau of Indian Affairs” in 1834 out of which was born the Bureau of Indian Affairs that still exists to this day and the “Indian Affairs Commissioners” that are now referred to a “BIA Regional Directors” and the head of the BIA as the Commissioner of Indians Affairs. The “Assistant Secretary for Indian Affairs” title came from later reorganization.
Indian Affairs remained under the Department of War until the creation of the “Home Department of Interior” in 1849. A subsequent debate ensued that lasted some 40 years over whether Indian Affairs should be transferred back to the War Department and kept under military supervision or remain under the Department of Interior and civilian supervision. In actuality “both” persevered for some time, with Congress allowing Military Officers to act as “Indian Agents”, even where there were already civilian “Superintendents”. This reflected the nature of the debate being one of what one Official the “Mohammedan” principle of “The Koran or Death” and the Christian principle of “Convert or Die”. In other words, “adopt the Christian ways of civilization or death”. A hybrid policy eventually won the day, but still remained a “Hobsons Choice” of Death by Military annihilation or assimilation of “civilized” ways under civilian authority, perhaps a slower death under the latter. Maintaining “a primitive and uncivilized existence” was simply not an option in the eyes of the U.S. Government.
The creation of the Indian Affairs Superintendent System led to the daily exercise of authority over children and adult Indians and restricted their ability to go to and from the reservation, and their ability to access certain funds generated by Indian Land Cessions and other land generated income. The latter policy still exists in some form today with regard to “Individual Indian Money (IIM) Trust Accounts” maintained by the Bureau of Indian Affairs. The Superintendent System took on an even more intrusive role after the passing of the “Dawes Act” of 1877 which hailed the “Allotment Period” in which the U.S. passed various acts allowing for deeding certain amounts of lands to “individual Indians” and allowing the “alienation” of those lands either voluntarily or involuntarily after certain time periods. Those lands that were not allotted became “surplus” lands that could be “homesteaded” by non-Indians with the Congressional intent of integrating Indians into the white world and, though daily interaction and though intermarriage, thus either civilizing the Indians or breeding their Indian Blood out.
Not coincidentally, this period also marked efforts by Congress to define who was an Indian for purposes of various acts. The “frame of reference” in use at the time to define race were various acts and practices defining who was a Negro for purpose of laws governing slavery and later state laws (Jim Crow) pertaining to Intermarriage between Negros and other races. The prevailing definition of Negro was “anyone who had a parent that was defined as Negro, thus anyone with even a smidgeon of Negro Blood was classified as Negro”. The U.S. translated this “blood quantum” system over to Federal Indian Law and began the practice of deciding who was Indian by how much “Indian Blood” they possessed and/or whether they were a “descendent” of an Indian Allotment owner for purposes of inheritance. Thus the birth of using both Blood Quantum and Descent (Parentage) as the basis of determining to whom Federal Law and policy would apply. It was also in this period that Congress made no distinction for non-Tribal people “living among the Indians” as those individuals were “accepted by the Indians as Indians”, the Tribes making no such distinction either, even with regards to White People.
After a Supreme Court decision that found that the U.S. had no right to punish an Indian for Murder in Indian Country, the U.S. Congress quickly responded by exercising jurisdiction over the “criminal conduct” of individual Indians within the Reservations, particularly with regard to Indian on Indian Crimes (The Indian Major Crimes Act of 1885). The Statute declaring this jurisdiction was upheld by the Supreme Court in a rather extraordinary case in which the Court defined the power over Indian Affairs as “Extra-constitutional” and “Plenary” the boundaries of which were the “good conscience and good faith” of Congress in carrying out its Trustee to Ward Relationship (U.S. v. Kagama 1886). Armed with this new Supreme Court created “Plenary Power”, congress passed the Dawes Act, mentioned above, the following year. Thus began a period of land dispossession and settlement of non-Indians within Indian Country that resulted in some 90 Million acres of land either “taken” from Tribes or from Tribal individuals either voluntarily or involuntarily, the latter being the wholesale disposition from Tribes under so called “Homestead Acts” and the disposition of land from individual Indians. Individual Indians could also be declared “civilized” by the Bureau of Indian Affairs and allowed to alienate their lands, sometimes accompanied by the right to vote and sometimes because they owed debts including debts to the Federal Government. Some lands passed out of individual Indian ownership because they were inherited by non-Indians.
In 1934, responding to the rapid alienation of Indian Lands under the Dawes Act, and advocacy from some rich White Liberal intellectuals and their Socialist friends who advocated for such land alienation to cease, Congress passed the Indian Reorganization Act (IRA) which allowed Indian Tribes to “reorganize under a Constitution and Bylaws” for the purpose of governing their own affairs, but under the auspices of the Superintendent System. Thus continued the “control” of Tribes and individual Indians so that they could not “improvidently” dispose of Tribal Lands and individual Indian Lands. The IRA Constitutions contained a requirement that all amendments be approved by the Secretary of Interior, again allowing controls on the part of the U.S. so that there remained a means of the “Trustee” making sure the “Beneficiary” did not squander the Trust (the land and assets of the Tribe). Tribes were allowed to set up “Corporate” entities under Section 17 of the Act but only on the approval of the Secretary of Interior and usually with “controls” built in to prevent “improvident” business risks being taken or incurring too much debt and so endangering Tribal assets. These Corporate entities could now waive “Tribal Sovereign Immunity” for the purpose of enticing non-Indians to enter into business arrangements with the Tribal Corporations. No so coincidentally, the head of Indian Affairs was at the time was one John Collier, a socialist leaning friend of the aforementioned White Liberals, many of whom had visited the Pueblos in New Mexico and became quite enamored with the Pueblo of Taos, establishing an Artist and Writing community near there as well as Tuberculosis Sanitariums. One of the leaders was Mabel Dodge (Dodge Motors) and she established a permanent home there and took a male Pueblo companion.
Section 19 of the 1934 Indian Reorganization Act includes definitions of Indians, Tribes, and adult Indians: “The term “Indian” as used in this Act shall include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction, and all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation, and shall further include all other persons of one-half or more Indian blood. Yet again, Congress continued to legislate not just for the “protection” and “control” of Tribes and individual Indians, but also attempted to define to whom it had a Trust Responsibility. In other words, who is an Indian? Up to this point (1934) one can discern that Congress, the Courts and the Executive Branch did not assume that its Trust Responsibilities ran only to “Tribes” as a political body, but also so to the individual “Indians” who make up the “aggregate called a Tribe”. The latter words being the Supreme Court’s.
Thus from the time of Colonization and during the time the Colonies became the United States, continuing up to early part of the 20th Century (1900’s), the United States Federal Government claimed and asserted (and assumed) that it had the exclusive “right” to deal with the Indian Tribes that held “dominion” over the lands of North America and the right to pass laws restricting such right to the U.S. as opposed to the individual Colonies, States and Territories. With that right came a responsibility of “protection” and “civilization” to the Indians who were the occupants of the lands and protection of the settlers now on the lands which the Indians ceded and those who would go among them to Trade or to Educate them in the ways of “Civilized Man”.
In Part 4, we will examine the time period after the 1934 Indian Reorganization Act and up to the present policy of Self-Determination and Self-Governance. I will try to answer the questions of why the United States appears to be abrogating its Trust Responsibility to individual Indians beyond those in “Federally Recognized Tribes”, and why it should?
Harold Monteau is a Chippewa Cree Attorney. He is the former Chairman of the NIGC and is a consultant for Economic Development and Finance of Tribal and Indian Business Ventures, particularly for Credit Challenged Tribal Business entities.
Full name:
Harold Monteau
Read more at http://indiancountrytodaymedianetwork.com/print/2016/06/21/non-status-indian-united-states-part-3-daniels-v-canadacrown
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