An excerpt from
American Indians, Blacks,
MICHAEL A. DORRIS*
The Grass Still Grows, the Rivers Still Flow:
TO STUDY THE LEGAL STATUS of American Indians in the United States is to wade into an extraordinarily complicated arena of legislative and judicial definition. Federal Indian policy, without precedent or parallel anywhere in the world, is unique and complex for two reasons. First, the United States initially inherited and then developed over the next two hundred years a singular relationship with American Indiansthat of a massive immigrant population with an enormously varied set of indigenous societies. Second, the formulation of Indian policy derives from disparate and often conflicting sources: ethnocentric preconceptions and expectations; racism; treaties; congressional acts and statutes; federal, state, and tribal court judgments; programs evolved within such federal bureaucracies as the erstwhile Department of War, and the Departments of the Interior, and of Health, Education and Welfare; the findings of the Indian Claims Commission; and even the laws and understandings inherent in the American and tribal constitutions. In attempting to grasp the practical realities of Indian rights, claims, and title, one continually encounters paradox, confusing historical precedents, and misunderstanding. There are dozens of seemingly self-contradictory non-Indian theories about, and strategies for dealing with, Indians; and there are scores of separate Native American tribes, each defined in its relationship to the federal government by hundreds of distinct treaties, each with wide variation in terms of goals and objectives.
Even the most highly educated among us are befuddled by a lack of factual information about Native American history. When we become aware of the contemporary existence of Indians at all, we expect to know easily "what Indians want," and are inevitably frustrated in the attempt. To those unfamiliar with the ethnohistorical context, modern Indian assertions of sovereignty, land title, and what amounts to privileged status appear presumptuous, capricious, and annoying. The tendency in contemporary American society is to see the world through non-Indian eyesas it has historically been seenand that perspective is generally taken for granted. We read a map issued by the American Automobile Association unaware that, whereas state and often even county and city boundaries are delineated, reservation landswhose status in a legal and constitutional sense is quite distinct from, and superior to, any of theseare omitted altogether. Or we may visit the Custer National Monument on the Crow Reservation in Montana, the sight of the most renowned victory in the long history of the resistance of Indian tribes to Euro-American incursions, and not find it amiss that the entire battle is describedunapologeticallyfrom the standpoint of the losers.
I will attempt in this essay to present some of the ambiguities and questions raised by the history of European-Indian contact, paying special attention to those issues of tribal lands and sovereignty most current and pressing. It will be necessary, however, to begin with some basic background material and to develop a sense of the cultural and legal trends that laid the foundation for the ambiguities of modern Indian policy.
Whatever explanation of origins one acceptsbe it the independent and intentional creation of most mythic and religious systems or the more quantifiable archeological record of migrating populationsit is a fact that the ancestors of those people who are today known as American Indians have continuously inhabited North America for upwards of thirty thousand years,1 and possibly much longer. This aboriginal configuration of peoples was by any criteriongenetic, linguistic, social, or politicalmightily heterogeneous. It is currently estimated that in the fifteenth century there were at least four hundred separate and distinct cultures north of the Rio Grande, and that they included a vast array of physical types and language stocks. Among these cultures were theocracies and democracies, hereditary chiefdoms and matrilineages; their peoples lived in large cities supported by agriculture and in small mobile bands of hunters.2 They thoroughly, if not densely, inhabited this continent, adapting to temperature extremes from subarctic to desert, and exploiting environmental possibilities from deep-sea fishing to intensive cultivation of hybridized crops. Persuasive evidence attests that for tens of centuries prior to Columbus's voyage they were, for all practical purposes, isolated from, and out of touch with, human communities in Europe, Asia, and Africa; and though each Native community maintained a far-flung, dynamic set of trade and cooperativesometimes hostilerelations with other neighboring societies, no single group dominated more than a small fraction of the continent.
The attitudes Native American peoples brought to their contacts with settlers in the New World in the fifteenth, sixteenth, and seventeenth centuries were shaped by their prior experience. Indian tribes had long existed in a plural world where foreign cultures differed substantively from one's own. Other groups looked, spoke, dressed, believed, and prayed in ways singularly appropriate to themselves. This is not to imply that all cultures were regarded as equally good or worthwhile; like people the world over, each Native American probably felt confident that his or her people were the raison d'etre of creation and the most enlightened, interesting, tasteful, and "human" society imaginable. But no sense of superiority, however secure, could contradict the inescapable observation that other groups whose ways and beliefs seemed bizarre and inexplicable similarly felt themselves to be the center of the universe.
Thus it would appear that initial contact with Europeans would be rather unspectacular for members of a Native American society. In many respects, the historical record indicates that Europeans were treated as neither more nor less exotic than would be members of another Indian group. Native people seem not to have been especially intimidated by, or impressed with, most of the novelties brought as trade goods, and often appear to have regarded the newcomers with a mixture of curiosity and concern: though Europeans looked like adults, they frequently seemed unable to feed themselves and to be perpetually on the brink of starving to death.3
The history of Europe prior to the Age of Exploration contrasted sharply with that of North America. For all of its tradition of interethnic strife and turmoil, Europe was, relative to the rest of the world, fairly homogeneous. With only a handful of exceptions,4 every language spoken from Ireland to the Dardanelles derived from a single family, the Indo-European. Furthermore, the Europe of 1491 was bonded by a mental culture a millennium and a half old, the Judeo-Christian religious tradition. Every man, woman, and child on the Continent knew the basic tenets of this macroreligion. Its Ten Commandments were the foundation of moral and common law; its leadership was international and powerful; and its official language, Latin, formed the lingua franca of learned and legal communication. Europeans believed in the same cosmology and the same divinity, and shared fundamental assumptions concerning the meaning of life itself. For the most part, they were wholly unaware that alternative systems and world views existed.5
Finally, some important political and social conventions were widespread throughout Europe, particularly Western Europe. Patrilineality, the system by which men are nominally dominant over women in every arena from marriage to property rights to leadership roles in both secular and spiritual spheres, was the unexcepted custom. Certain assumptions about leadership itself were commonly heldthat one person or a small group of persons could govern the actions of many, that rulership was hereditary, that allegiance or loyalty was owed an individual simply because of his rank or station. In addition, the concept of the "nation-state" was beginning to emerge in many areas.6
For the greater part of European history, this rather myopic and misleading attitude, bred of cultural isolation, persisted. Beyond familiar borders, the world was regarded as either a place infested with demons, barbarians, and infidels, or as not existing at all; in the popular flatlander vision, the ocean and everything else simply stopped somewhere west of Portugal. True, occasionally invaders demanded attention from the cultures on Europe's peripheries: the Moors in Iberia, the Huns and Turks in the East. But these encounters made little dent in the ethnocentrism of most Europeans.
The lack of any strong traditions of culturally plural coexistence or respect for extracontinental societies left Europeans poorly equipped to deal with the "discovery" of a "new" and inhabited world. Initial reactions to the presence of human beings whose looks, beliefs, or disposition did not fit the familiar molds ranged from awe to outrage. The very humanity of indigenous peoples was seriously questioned by some,7 and it was universally and instantly assumed that there was a "natural" hierarchy of "civilization," with Europeans at its apex. Notions such as cultural relativity seem to have been almost totally absent, and it was at first expected and eventually mandated that all Native peoples would unremittingly and unhesitatingly forsake their own languages, mores, and beliefs, and embrace European substitutes.
From its earliest beginnings, the politics of social interaction between indigenous and immigrant (non-Indian) peoples in North America evolved out of a growing sense of confusion. Neither group really knew what to make of the other, and each searched their own known and mythic histories for explanations or analogues for dealing with unknown and unfathomable beings. Various Native societies came up with a wide assortment of hypotheses to identify and predict the behavior of Europeans, ranging from the Aztec, "Maybe it's Quetzalcoatl," to the idea of the Southern Cheyenne that mountain menthe early European trappers in the Rockiesrepresented the return to the world of a class of long-departed excrement-eating clowns.8
Europeans apparently had little problem in postulating an equally dazzling set of improbable theories to explain the origin and true nature of those whom they found in possession of America. Puritans blithely concluded that indigenous peoples were but manifestations of the Devil, sent to test their will for The Good.9 Others felt Indians embodied the familiar Teutonic wildman-of-the-forest bogeylong hair, guttural language, sylvan abodeand treated them accordingly.10 Scholarly types speculated that Indians exhibited a level of cultural development prior to that of contemporary Europe.11 Their retardation was laid to any number of possible causes: a separate and more recent creation or evolution, or both, or the limitations imposed either by mental capacity or restrictive environment, to name only two. For Europeans, it was just a matter of time until Indians "caught up"as far as they were able. Still others imagined that the Natives had come from outer space, Phoenicia, or Atlantis.
Cultural interactions have always taken place on at least two levels, the imaginary and the real. North America, at its most cosmically mythic, was the setting for the dramatic encounter of The Indian with The White Man. In this realm of inflated stereotype, only conglomerate Races, complete with their imagined associated personality characteristics, confront each otherindividual people and unique groups are nowhere to be found. One can only speculate on the mass of interpretation made by Indian societies to account for the appearance and behavior of The White Man, but there is certainly no lack of data traditionally used to describe his tawny counterpart.
In popular and persistent folk belief, The Indian is, among other things, male, red-skinned, stoic, taciturn, ecologically aware, and a great user of metaphor. Or, he is cunning, mercurial, wild, lusty, and a collector of blond scalps. At nightfall he silhouettes himself in the sunset, or dances, shrieking, around his campfire. Before vanishing, he was prone to skulking, sneaking, and sundry other double-dealings. Rather than defend himself, he "uprose"; rather than resist the occupation of his land, he "outbroke"; rather than defeat a foe, he "massacred."12 The one major commonality uniting this schizophrenic persona is a general agreement that, whoever and whatever he was, for better or worse, he is no more. The Indian, by and large, is a motif embedded in Americana, not perceived as a part of the American present.13 The confusion comes when we realize that Indian people, too often mistaken for The Indian, are still very much around.
If nothing else, American Indians have been consistent in their objectives. For the nearly five hundred years since continuous contact with the Eastern Hemisphere was established, simple survival has been the common denominator of every major tribal, national, or pan-Indian campaign vis-a-vis the first Europeans and their genetic or cultural descendants. During some periods of history that objective has been easy to define and identify. The apparent Native American lack of immunity to many Old World diseases, for example, resulted in a decimated aboriginal population within a generation or two after the first encounter with a germ-carrying European. It is currently estimated that often as many as nineteen out of twenty members of many Indian societies who contracted smallpox, cholera, measles, or any number of other contagious infections succumbed shortly after the initial exposure.14 Such was the devastation, that their "discoverers" were wont to regard Indians as "vanishing," and to forecast their biological extinction in the immediate future.
One cannot begin to fathom the trauma that must have been experienced by those few Native people who, by genetic chance, survived the onslaught of previously unknown diseases, only to watch most of their families and friends perish. Yet they not only had to attempt to hold the fabric of their kin-based political systems together, but at the same time try to make a proper response to a growing and increasingly aggressive invading force of foreigners. The question of survival was, for them, not a subtle one.
Intentional genocide, though documented in certain instances in North America,15 was not carried out with any prolonged determination against Indians. This may have been owing in part to the common assumption that natural attrition would solve the "Indian problem." Believers in eighteenth and nineteenth century notions of cultural evolution, complacent in their ethnocentric teleology, regarded the prospect of Indian survival with a nostalgic, if somewhat cold-blooded, attitude. "Irresistibly held in the vise of evolution, [Indians] filled their niche in destiny and departed to their happy hunting ground."16
Yet, though their precontact population was reduced from an estimated 12 to 15 million17 north of the Rio Grande in 1491 to a low of 210,000 in the 1910 census, Indians did not altogether disappear; those who did not die from one or another imported malady passed their predisposition to immunity on to their offspring, and each succeeding generation experienced relatively fewer fatalities as a result of disease.18 Today, with an estimated population well in excess of one million nationally, Indians constitute one of the fastest growing ethnic populations in the United States. However, their expected mass demise profoundly affected the nature of early European perceptions and consequent official dealings with Indians, and thus had a lasting impact, through the precedents and language of the accords that marked the establishment of relations between Indians and Europeans, on all later legal relationships.
Actual contact, as opposed to the imaginary, takes place between people, and whatever their confusions about each other, all parties must reach agreements that regulate and define the areas of interaction between them. There is a period of mutual testing and appraisal before the situation becomes stabilized and understandings are established. The two, or more, parties must exist, or expect to exist, in a relatively equitable power relationship, or a dominant-subordinate context will result.
By the time a substantial number of British colonists arrived to settle in North America, several major points had already been settled. After some years of debate by Spanish intellectuals, the Pope had ruled with finality that Indians did, in fact, have souls and were therefore human beings.19 It was also evident that there were sufficient Indians to make any precipitous European conquest and defense of a land base untenable. Finally, commonly held concepts of international law (i.e., rules of conduct shared by European nations) now included an understanding known as "Right of Discovery,"20 that at its minimum interpretation suggested that a superior legal jurisdiction fell to the European nation first landing on, and laying claim to, territory not formerly held by other Europeans. As it came to be understood, Right of Discovery awarded to a European nation the sole and exclusive authority to negotiate for the transfer of absolute ownership and title to property with the Natives (if any) of that property. This type of jurisdiction was an extreme form of "spheres of influence"; it enabled the various "exploring" European nations to divide up neatly the non-European world, at least by their own reckoning, over the next several centuries. If through conquest or negotiation one European nation succeeded the other in the control of a land area, the Right of Discovery was inherited along with other prerogatives.
During the sixteenth and seventeenth centuries, there was no clear idea of the extent of the North American continent, nor were the type and total of the aboriginal population known; but it was clear that they existed in sufficient numbers to defend their land. In response to this reality, the English, in particular, adopted an interesting and innovative policy, the effects of which are profoundly felt today. In word and practice, the British recognized the prior sovereignty of the Indian nations they encountered. They conceded that the indigenous populace had a legal right both to self-governance and to claim title to land on the basis of long ("time immemorial") use and occupancy; they stipulated that such claim, based on aboriginal right, could be extinguished only by negotiations or warfare carried out at the highest levelas between nations.
The mechanism for negotiation was the treaty, a means of international agreement long in use among European states. As the British understood it, an Indian treaty, among other things, formalized the cession of territory claimed by the Native group in exchange for the formal English recognition of clear and abiding title to the nonceded and still-claimed area. The English would then "own" outright the lands from which aboriginal claim was withdrawn. The Indian nation would retain ownership on the remainder, with undisputed tenure.
Though most Indian tribes had no prior concept absolutely analogous to the European idea of land title, they were quick to learn, and they entered into treaty negotiations relinquishing once-used lands for several reasons. First, the toll taken by European diseases, which often preceded intense European settlement, has so reduced the Native population, that it was unfeasible to expect to defend effectively as wide an expanse of territory as had once been used. Second, the English (and to a lesser degree, the French) offered strong inducements to tribes that agreed to enter into, and be bound by, treaties; in exchange for land claims, tribes were promised annuities in money and trade goods, health and education benefits, and most important, the security of an uncontested land base where they could live in peace and independence "as long as the waters flow and as long as the grasses grow." That latter phrase, commonly known as a perpetuity clause, was routinely inserted in the treaties Europeans made with Indians, though ordinarily it was not a part of the compacts they made with each other. Its inclusion may reflect the European expectation that Indians were indeed "vanishing" and would not survive to reap the long-term benefits of an easily made promise.
In certain respects, it ultimately mattered less what those first treaties actually saidsince virtually all were eventually broken by the European signatoresthan that they were made at all. The very act of treaty-making imparted a European version of nationhood to the Native party, and as a result, established at least a legal parity, in terms of co-equal sovereignty, between aboriginal and European states.21 This status, once recognized, did not diminish when the relative power balance between the two sides shifted, nor theoretically, with the passage of time. "Age has not invalidated the treaties any more than it has invalidated the Constitution which recognizes them as 'the supreme law of the land.' Nor does breach of violation of treaties nullify them any more than does the act of committing a crime nullify the law that forbids that crime."22 Furthermore, it certified beyond question that Indian nations had existed as self-governing nations prior to their contact with Europeans. This key reality has beenand is stilloften misunderstood by the general American public.
In spite of the inherent sovereignty of the Indian nations, and in spite of its repeated affirmation in old and recent United States law, many Americans believe that tribal governments were created by treaties and conferred upon Indians as benevolent dispensations of federal law. The reverse is true: the tribal governments entered into treaties and conferred certain rights to the colonials, and later to the United States.23
The recognition of Indian tribes as sovereignties, although somewhat regulated in their external affairs, continued without interruption after the American Revolution. In fact, the U.S. Constitution itself takes particular note of the special relationship that existed between the new nation and the ancient Native American states. Article I, Section 8, stipulates that "the Congress shall have power . . . to regulate commerce with foreign nations, among the several states, and with Indian tribes." Indian tribes are the only group specifically identified in the Constitution; "persons unfamiliar with Indian law mistake this distinction as one of a racial nature. Such is not the case. Indian tribes are distinct political entitiesgovernments with executive, legislative, and judicial powers."24
In 1790 the Congress further clarified its understanding of its role vis-a-vis Indian tribes. The Trade and Intercourse Act of 179025 stated that only the federal governmentas a sovereignand not statesas lesser political entitiesmay inherit the "discoverer's" right to treat with Indian nations and thereby extinguish portions of aboriginal land claims. In other words, Indian lands may pass out of Indian hands only when the federal government, as an equivalent sovereign, is involved in the transaction.
In the case of Cherokee Nation v. Georgia (1831),26 the Supreme Court added a definition of its own. Regarding the status of the Cherokee reservationthat is, the aboriginal core lands remaining to the Cherokee after all external claims had been legally and appropriately extinguished and relinquishedit was the opinion of Chief Justice John Marshall that the reservation existed as a "domestic, dependent nation," having a special relationship to the United States. This was later made even more explicit in Worcester v. Georgia (1832);27 in that decision, Marshall termed the Cherokee reservation a "distinct, independent, political community." These definitions were transferable and applicable to all other federally recognized reservations and are among the fundamental principles of all subsequent Indian law.
During all the years that the U.S. government was testing, refining, and ultimately reaffirming its understanding of the maintained sovereignty of Indian nations, the issue was never in question for this country's partners in treaty. From the point of view of the Indian tribes, their own legal and political situation was perfectly clear. "Nationhood" may have initially been a somewhat foreign concept to some or even most of them, but they had understood and adapted to it long ago. They regarded their treaties both with European powers and later with the American government with the utmost seriousness and had every reason to construe them as binding and in force. After all, they had, without exception, fulfilled to the letter all of their obligations under these agreementsthey had dutifully and without violence ceded all stipulated lands according to the terms of their respective treaties.
Those compacts had been minutely discussed and examined within their own governing bodies, and some of the Native leaders at the time of enactment had committed the agreements in their entirety to memory. This oral record was as immutable and stable as its written counterpart in Washington, and in many cases was better understood by the population who most felt its impact. Indian peoples were well aware, in general, of what they had been forced to give up and were equally well-acquainted with promised terms of payment.28 The latter may never have been equal in value to the former, but Native societies were in no position to strike the most self-advantageous bargain. Recent testimony29 shows that the tribes have maintained, through meticulous oral history, a complete inventory of these agreements, including the most detailed accounts of all discussion and debates surrounding treaty negotiation. There can be no question of the tribes' intent when entering into and ratifying these accords. From their perspective, they paid dearly in lands and opportunities to reserve for themselves and their descendants the rights of self-government, freedom of choice and expression within their own territories, and the additional compensation, in most cases, of an ongoing installment plan payment. They may have, during the difficult days of the past one-hundred-fifty years, lacked the military or political clout to protect their rights when violated, but recent history shows that they never forgot what those rights were nor conceded their diminution.
By 1871, when the treaty-making process formally came to an end,30 virtually all tribes in the area that was to become the forty-eight contiguous states had reached some modus vivendi with the American government, and all were, for better or worse, established on one or another reservation. Their lands were not new, nor were they gifts; rather, they represented the residue of Indian land holdings that once encompassed all of North America. In exchange for ceding most31 of their territory, tribes were promised that their remaining lands would be held in trust for them and for their progeny in perpetuity.
Few non-Indians in the United States had read those treaties, and as a result, even those who had framed and ratified them, even those who called themselves "friends of the Indian," came to interpret Indian lands in ways quite at odds with their initial and legal status. For some, reservations were viewed as holding grounds where tribes could be controlled by the government and subject to the civilizing and Christianizing effects of education and missionary work.32 Benevolent societies, such as that which became known as the Lake Mohonk Conference, issued such statements as, "The organization of the Indian tribes is, and has been, one of the most serious hindrances to the advancement of the Indian towards civilization, and . . . every effort should be made to secure the disintegration of all tribal organizations; . . . to accomplish this result the Government should . . . cease to recognize Indians as political bodies or organized tribes."33
It did not take long for the federal government to respond. Senator Henry Dawes, a former officer of the Indian Rights Association of Philadelphia, proposed legislation that would allot the reservations "in severalty," assigning to each male head of household, unmarried woman, and orphaned child a discrete plot of land to "prove" for a period of twenty years or more, after which they might petition to become U.S. citizens. Under the provisions of the General Allotment Act (1887),34 the president was empowered to unilaterally abrogate existing international agreements with Indian tribes. Each Indian allottee was granted a share or a portion of a share, usually not exceeding 160 acres; according to this schedule, there was considerably more remaining Indian land than there were Indians to distribute it to individually (according to the preassigned average schedules). Thus, in one stroke of the pen, almost one half35 of all the lands controlled by Indians in 1885 were declared "surplus" and passed out of Native control. Over the course of the next forty-five years that the act was in force, substantially more land was lost from this shrinking base because of theft, chicanery, sale, or fraud.
It is undoubtedly true that some people who sponsored and supported the Dawes policy sincerely believed that they were acting in the best interests of Indian people; however, the results were disastrous for the supposed beneficiaries. In 1928 the Institute for Government Research (Brookings Institution) published The Problem of Indian Administrationpopularly known as the Meriam Report, after the project's director, Lewis Meriamwhich detailed the economic and social conditions of the Indians as they were almost fifty years after the passage of Allotment.36 The report found "deplorable" conditions prevalent in almost every Indian settlement in the country,37 and concluded that the federal government's "allotment in severalty" and "Americanization" programs were failures. It recommended increased appropriations for Indian health and education, cessation of allotments, and more effective protection for their property, among other things. In sum, it discouraged forced assimilation as a policy, and urged that Indians be fitted to live in contemporary American society without being bludgeoned into it.
President Franklin Roosevelt's appointment of John Collier, a cultural anthropologist, to the position of Commissioner of Indian Affairs furthered this line of reasoning in the next decade. His proposal for a sweeping set of reforms was embodied in the Indian Reorganization Act of 1934.38 This legislation recognized afresh the right of Indian tribes to be and to remain distinct, functioning political entities, and reaffirmed the special trust relationship between the American and Native governments. Funds were allocated to repurchase some of the lands lost through Allotment policy, and reservations were strongly urged to design and enact tribal constitutions based on the American model. Though some religious and assimilationist groups opposed this "return to tribalism," the vast majority of Indians hailed aspects of the act as a long overdue reinstitution of the legal relationship that existed between the United States and Indian tribes.39
Collier noted that the Wheeler-Howard, or Indian Reorganization, Act
endeavors to provide the means, statutory and financial, to repair as far as possible, the incalculable damage done by the allotment policy and its corollaries . . . . Congress and the President recognized that the cumulative loss of land brought about by the allotment system, a loss reaching 90,000,000 acrestwo-thirds of the land heritage of the Indian race in 1887had robbed the Indians in large part of the necessary basis for self-support.
He went on to note that
the first step in this rebuilding process must be the reorganization of the tribes . . . . In the past they managed their own affairs effectively whenever there was no white interference for selfish ends. They can learn to do it again under present conditions with the aid of modern organization methods, once they realize that these organizations will be permanent and will not be subject to the whims of changing administrations.40
One may hope that few Indians so "realized," for this "New Deal for Indians" was short-lived indeed. Within two decades, House Concurrent Resolution 108 (1953)41 proclaimed that it was the policy of the United States to abolish federal supervision over the tribes as soon as possible and to subject the Indians to the same laws, privileges, and responsibilities as all other citizens of the United States. With this resolution, the government began the process of "termination," the unilateral abrogation of treaty responsibility toward the tribes. The language of Resolution 108 was as euphemistic as had been that of the Allotment Act some eighty years before. It talked of giving Indians "equal rights" and of "freeing" them from "federal supervision and control and from all the disabilities and limitations specifically applicable to Indians"42 as if no one understood that in equalizing rights, Indians were losing those very advantages for which their ancestors had exchanged most of North America. Native Americans would henceforth be "free" to do all that they had fought so hard to be exempted from; hereafter they would be subject to state taxes and to state fishing and hunting laws, and would lose federal protection over their lands and the right to self-governing sovereign status.
Passage of this resolution was quickly followed by the adoption of Public Law 280,43 which extended state jurisdiction over criminal offenses committed by or against Indians and over specified parts of "Indian Country." Obviously the Congress did not construe reservations to be Justice Marshall's "distinct, independent, political communities." On the contrary, for almost one hundred years the House had seemed determined, with the notable exception of the hotly debated Indian Reorganization Act,44 to undermine the legal basis for Indian tribal power. It had overwhelmingly voted in favor of every piece of legislation limiting Indian sovereignty since 1887. In fact, the General Allotment Act (1887), the Indian Citizenship Act (1924), House Concurrent Resolution 108 (1953), and Public Law 280 (1953) all passed without so much as a roll call.
Perhaps the only good thing that can be said about the termination policy is that it proved to be socially and economically unfeasible faster than it could be implemented on a large scale,45 and thereby did not directly affect the vast majority of reservation people. Its attack on the precept of tribal sovereignty and integrity, coming so close on the heels of the resumption of that recognition in the Indian Reorganization Act, alerted tribes that they must act conscientiously and cautiously if they were to protect their inherited and constitutional rights.
Felix Cohen articulated the legal and political basis for tribal autonomy when he wrote:
Many important aspects of this definition are generally undisputed. Indian tribes have not carried on "external powers of sovereignty"that is, conducted international relations except with the United States, since the War of 1812.47 Although Congress asserts plenary (i.e., overriding) authority in dealing with Indian tribes, the tribes retain their authority unless legislation has expressly denied it. These as yet unrestrained powers constitute "residual authority."
Another significant and long-standing concept is the federal trust relationship with Indian tribesmeaning that the United States, by virtue of its dominance over the tribes as dependent nations, is obliged to certain responsibilities toward them. These fall into three broad areas: (1) protection of Indian trust property; (2) protection of the Indian right to self-government; and (3) provision of social, medical, and educational services for survival and advancement of the Indian tribes.48 The tribes, in other words, are due certain privileges, protections, and benefits as a consequence of yielding some of their sovereignty to the United States.
The Native American Commissioners of the American Indian Policy Review Commission stated unambiguously at the conclusion of their Final Report (1977) that "there are two elements essential to the ability of all Indian tribes to progress towards economic development and eventual self-sufficiency: self-government, i.e., sovereignty, and the trust relationship."49 Both goals would appear to be logically available, yet, historically, Congress has shown an inconsistent comprehension of Indian nationhood. Reflecting the ambiguous and ill-informed attitude of much of its constituency, Congress often seems to regard reservations and treaty rights as transitional stages that will cease as soon as even approximate economic parity of Indians with other groups within the country is achieved.
Certainly, from the very beginning of the formal association between the United States and Indian tribes, there has been much to suggest that at least some of the prerogatives available only to nations exist for Indians. The Cherokee treaty of Hopewell (1785), for instance, was the first to make mention of certain tribal jurisdictional rights: "If any citizen of the United States, or other person not being an Indian, shall attempt to settle on any of the land . . . hereby allotted to the Indians . . . such person shall forfeit the protection of the United States, and the Indians may punish him or not as they please."50 However, the treaty limits that very authority to a certain degree: "If any Indian . . . or person residing among them, or who shall take refuge in their nation, shall commit a . . . capital crime . . . [the tribe] shall be bound to deliver him . . . up to be punished according to the ordinances of the United States."51 A variety of Supreme Court decisions, both early52 and more recently53 have upheld the concept that tribal authority naturally prevails over that of surrounding or contiguous states.
Though most tribes adopted a written constitutional form of government at the time of the Indian Reorganization Act, other tribes such as the Iroquois and the Pueblo retained their traditionaland ancientpolitical systems. In either case,
as governments, Indian tribes have general powers to (1) make laws governing the conduct of persons, including non-Indians, in Indian country; (2) establish bodies such as tribal police and courts to enforce the law and administer justice; (3) exclude or remove non-members from the reservation for cause; and (4) regulate hunting and fishing, land use, and environmental protection.54
When Congress voted in 1924 to make all Indians citizens of the United States,55 it specifically noted that "the granting of such citizenship shall not in any manner impair or otherwise affect the right of any Indian to tribal or other property." Yet the status of individual Indians was somewhat unclear; on a day-to-day basis, did they operate under the laws of the United States or of an Indian nation? Which authority, federal or tribal, prevailed?
Specific legal guidelines are sometimes hard to discern, and as always in Indian law, one must search first for historic decisions as precedents. Talton v. Mayes (1896)56 held that federal courts have no authority to review Indian court convictions by the writ of habeas corpus; in other words, the tribe's right to punish offenses is not limited by the Fifth Amendment, because the Bill of Rights applies only to federal governmental actions, and Indian tribes are not federal powers. Native American Church v. Navajo tribe (1959)57 simply ruled that the First Amendment guarantee of free exercise of religion was not binding over the Navajo Tribe, nor by analogy could it extend to any other functioning tribal government. The Fourteenth Amendment due process provision is also non-applicable, because "Indian tribes are not states. They have a status higher than that of states."58 Inherent and residual sovereignty are the foundations of these findings that affirm the judicial and political separateness of Indian governments.
The Indian Civil Rights Act of 196859 imposes on tribal governments specific and slightly modified individual rights derived from the First, Fourth, Fifth, Sixth, Eighth, and Eleventh Amendments to the U.S. Constitution. It mentions only one federal remedy availablethe writ of habeas corpusin conjunction with this act and from the legislative hearing prior to its passage.60 From the summary remarks of Senator Ervin,61 it appears that this was the only recourse intended.62 Public Law 280 was amended to allow further assumption by states of jurisdiction only with the approval of the Indian tribes affected,63 and to provide automatic retrocession to the federal government if desired by the state.
A recent Supreme Court decision, Santa Clara Pueblo v. Martinez (1978),64 limits the circumstances in which an individual can bring suit against a tribal government, and affirms the sovereignty of those governments. In that ruling, it was stated that "in addition to the [Indian Civil Rights Act's] objective of strengthening the position of the individual tribal members vis-a-vis the tribe, Congress also intended to promote the well-established federal policy of furthering Indian self-government."65
The Indian Self-Determination Act of 197566 recognizes the right of Indians to "control their relationships both among themselves and with non-Indian governments, organizations and persons," and goes on to observe that "the prolonged Federal domination of Indian service programs has served to retard rather than enhance the progress of Indian people and their communities."67
In Oliphant v. Suquamish (1978),68 the Supreme Court found that tribal courts have no criminal jurisdiction over non-Indians when they commit crimes on reservation lands, yet in a related decision in the same year, it ruled that "Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status."69 Russel Barsh and James Henderson point out that
Oliphant's theory of power reaches much further. According to one federal district court, tribes now lack civil jurisdiction over non-Indians and non-Indian firms as well,70 frustrating zoning, environmental regulation, and the enforcement of public health and safety standards on reservations. Without the power to protect reservation residents, tribes cannot maintain political legitimacy.71
Interpreting Recent Laws and Cases
Where, then, do congressional and judicial decisions of the past twenty years, not to mention the previous two hundred, leave Indians? There are any number of ways to interpret the Indian Civil Rights Act as it is reflected in the major Supreme Court decisions of Santa Clara Pueblo and Oliphant. The assimilationist perspective views the act, together with the Major Crimes Act (1885), as making "drastic inroads on the judicial sovereignty of the tribes."72 According to this line of thought, tribal courts are too expensive anddespite the historical rationale for special statusinequitable, in that they separate one ethnic population from the general court system of the United States.
Another view regards it as appropriately limiting, rather than obliterating, tribal sovereignty. "The answer lies in tying tribal power to its purpose," this argument goes. "Thus limited, the exercise of tribal power would have no impact on non-members, yet such exercise would be unfettered by congressional supervision within its proper sphere."73 It is proper, then, that tribes have jurisdiction over members (Santa Clara Pueblo) but not over nonmembers (Oliphant).
Yet another interpretation emphasizes the protectorate relationship, "whereby tribes retain their political independence except as limited by express provisions in the federal statutes, treaties or by [inherent] restraints"74 between the federal government and the tribes. There is some feeling that the rights specified in the Indian Civil Rights Act should be applied and interpreted in the same manner as those outlined in the Bill of Rights.75 Any disputes between the two should be resolved by Congress or by flexible standards determined by the courts.
The Indian Civil Rights Act places limits on the
power of tribal governments by guaranteeing certain individual rights to all persons within tribal jurisdiction. Nonetheless, the Supreme Court has asserted that these limitations were intended to strike a balance with, and not to override, the well-established federal policy of further Indian self-government.76
Each case must be resolved on its own merits, and precedents are to be avoided. It is recognized that federal authority should not ordinarily intrude on the sovereignty of a tribe.
If the Indian nation is found to possess a degree of sovereignty sufficient to support the conclusion that it expects to conduct its internal affairs free from federal regulation, then no [federal] civil remedy should be implied under the Indian Civil Rights Act.77
"Sufficient" sovereignty derives from several sources: the absence of a congressional act denying it, treaties specifically asserting it, or the persuasive power of a strong extant tribal government. "Absent Congressional mandate, the courts should be reluctant to interfere with the evolution of Indian governments that Congress is presently supervising."78
This leads to another, more positive interpretation of the Indian Civil Rights Act: in a perverse way, by limiting tribal sovereignty, Congress reaffirmed its existence.79 Though nontribal members are excluded from jurisdiction by Oliphant, the residual authority of Indian courts to try civil actions exclusively within their domain persists, as upheld in Santa Clara Pueblo. It would seem by this standard that a continuing refinement of the meaning of tribal sovereignty, and not a total usurpation of it, is underway. Alvin Ziontz observes:
The Indian Civil Rights Act remains, of course, an imposition of values of the dominant American culture which sharply conflicts with the tradition of many tribes. But Martinez [v. Santa Clara Pueblo] allows the tribes to implement the Indian Civil Rights Act in a manner which preserves their ability to decide difficult questions in accordance with tribal values, and more importantly, in a manner consistent with tribal sovereignty.80
There are still other, more novel and intriguing ways to interpret the act. Some, like David Robertson, see it as illustrating the "intention of Congress to bring the tribes within the conceptual scheme of federalism while simultaneously making more secure their right to tribal autonomy. As such it constitutes a new policy, not directly descended from either the separatist or the assimilationist line."81 This seems to correspond with the import of the Wheeler ruling (1978),82 which determined that successive state-federal and tribal-federal prosecutions do not constitute double jeopardy, since jurisdictional authority derives separately for tribes than for courts using Western modes of justice. Michael Gross argues that Congress should mandate that tribal actions parallel American "notions of fairness, including notice, an opportunity for hearing, and ascertainable standards for decision" to protect individual Indian groups or communities "in their struggle for local control of important government services, especially education."83 But it seems clear that whenever the United States deals with Indians in their capacity as individual American citizens, their dual, tribal status is at a disadvantage. No other group in this country exists in this dichotomous position, and therefore most non-Indians, including lawmakers, do not understand it; but from a Native American point of view, the advantages of dual citizenship are theirs by legal contract and congressional ratification.84
There are some additional significant congressional actions falling somewhat outside the general focus of this paper that should be noted. In 1975 Congress fulfilled part of its obligation to honor promises made forty years earlier, as part of the Indian Reorganization Act, by passing the Submarginal Lands Act Amendments (P.L.. 95-114). This act returned 480,000 acres of land, almost all of which existed within the boundaries of the reservations of some eighteen tribes. Further, it passed in 1974 the Indian Finance Act (P.L. 93-262), thus creating the largest source of federal loan capital ever made available to Indian business enterprises. Once again, a pledge made in the 1930s but never adequately carried forth was recalled and acted upon.
In the field of education, Congress passed in 1972 the Indian Education Act (Title IV of the Educational Amendments of 1972, P.L. 93-3181), creating the Office of Indian Education and the National Advisory Council on Indian Education. The goals of this act include bilingual/bicultural enrichment programs, teacher training, and adult and early childhood programs; the act also stipulates a hiring preference for Indians. Three years later, the Indian Self-Determination and Educational Assistance Act (P.L. 93-638) further placed in the hands of local communities responsibility for, and control over, the education of Indian children.
In 1976 Congress passed the Indian Health Care Improvement Act (P.L. 94-437), a far-reaching piece of legislation designed to improve the level of health care delivery on reservations and to train Indian professionals in modern medical techniques. The Indian Civil Welfare Act (1978, P.L. 95-608) was aimed at clarifying jurisdiction over dependent Indian children. It acknowledged the authority of tribal courts over child custody and related cases. Finally (also in 1978), Congress at long last passed the Native American Religious Freedom Act (P.L. 95-341), which mandated that federal agencies be restrained in all activities from enacting policies that would interfere with the practice of traditional Indian forms of religious expression.
Two things should especially become clear from even a brief review of these bills. First, all stem directly from treaty agreements reached long ago; the rights to adequate health, education, and protection of lands derive from the trust relationship between Indians and the United States; and it stands to reason that Indian sovereignties have a clear right to worship as they choose and to control the welfare of their own children. In other words, there is nothing new in any of this legislationit simply furthers promises made implicitly or explicitly at a previous time. Second, it is significant to note that all the bills are written in such a way as to suggest that Congress believes and attests that Indian tribes will persist in a special and unique political status over the long-term future. There is no suggestion that any of the provisions exist only for a transitional period, to a time when the trust relationship will cease to apply. They are in this sense the true federal repudiation of the policy of termination and should act as a cornerstone to future developments.
The Courts, Indians, and Other Americans
A greater degree of judicial activity regarding Indians has taken place within the past twenty years than in any previous equivalent period. A good part of the reason for this explosion in litigation must be that there is a greater awareness within the Indian community, not only of the rights that proceed from treaties and legal precedents, but of the means by which to assert claims and to protect rights in court. There has been a dramatic increase in the number of Native American attorneys and in the number of non-Indian lawyers specializing in Indian law. And national Indian legal and advocacy organizations, such as the Native American Rights Fund, the National Indian Youth Council, the Institute for the Development of Indian Law, and the Association of American Indian Affairs have pressed cases and research of all types.85
The one million86 American Indians constitute only one-half of one percent of the American population. But when they challenge or are victorious in court over other, more populous and powerful groups, they soon cease to be regarded as emblems of nobility and bygone days. Their non-Indian sympathizers seem positively irate when they realize that Indians still expect treaties made long ago to apply, and are more chagrined still when the courts agree. Barsh and Henderson, as well as Sam Deloria, director of the American Indian Law Center at the University of New Mexico, have noted that "Indian policy runs in cycles. After a generation of relative security comes a period of intolerance, confrontation, and confiscation. In time, the country confesses error and makes some small attempts at tribal reconstruction and preservation. Tribes regain a part of their former intellectual, political, and technological strength. Then the cycle repeats."87
During the 1960s, Indians in the abstract were regarded fondly by the general public. A spate of "plight" books, capped by Dee Brown's Bury My Heart At Wounded Knee,88 an appealing but somewhat simplistic and one-sided recounting of Indian history, had the country beating its collective breast for the demise of the noble Red Man. Thomas Berger's Little Big Man89 in both book and film versions dramatically recreated the good old days gone by, and the quasi-mystical writings of Carlos Castaneda convinced sundry hippies, romantics, and Californians-of-all-regions that Indians were somehow genetically endowed with extrasensory powers. Bloomingdale's department store in New York City stocked and sold huge quantities of beads and feathers, and Native American chic was in.90
The love-in ended abruptly, however, when it became clear that contemporary Indians were not content to play the role of cultural symbol or caricature. A variety of events and court decisions simultaneously shattered the image of the "groovy Indian." Since World War II, an increasingly sizable Indian population migrated to urban areas in search of employment and other opportunities,91 encouraged by the somewhat ill-conceived federal Urban Relocation Program initiated in the 1950s. In the past twenty years alone over two hundred thousand Indians have left their reservations and moved to such metropolitan centers as Los Angeles, Minneapolis, the Bay Area, Seattle, Denver, Chicago, Boston, New York, and Buffalo. Today nearly one-half of the total Native American population in the United States could be classified as urban, though studies strongly suggest that the majority of these migrants maintain significant ties with their home communities.
The major reason for this demographic shift is a search for improved economic opportunities. Research conducted among Indians in both San Francisco and in Denver92 indicates that the vast majority would prefer to return to their reservations if work were available there. Indeed, there is much evidence that urban Indians adjust to the city only marginally, regardless of the duration of their stay. If anything, the pressures of city life, coupled with a desire to resist "psychological assimilation," may spur and reinforce an increase in Indian self-identity and a rejection of non-Indian values.93
Such an attitude is clearly not rewarded by the dominant society. Theodore Graves found that the arrest record for Indians in Denver was some twenty times the Anglo rate and eight times the Spanish-American rate.94 Many Native people born and educated within their tribal communities never experienced the reality of being a minority before they moved to the city, and it can be a traumatic event. There is a vivid fictional portrayal of this situation in N. Scott Momaday's Pulitzer Prize-winning novel House Made of Dawn,95 and several of the short stories of Simon Ortiz describe it as well. For urban Indians, there are many ambiguities concerning treaty and other legal issues of jurisdiction, accountability, and right. It is not clear what benefits (e.g., health and education) ordinarily available on the reservation they are entitled to, or for how long. Cut off from the larger tribal community, they tend to seek out other Indians, minimizing past cultural differences; but, as J.H. Stauss and Bruce Chadwick point out in their study of Seattle, "the Indian who has lived his entire life in [the city], as well as the migrant, does not surrender his Indianess (sic) and blend into white society . . . . Although economic improvement does result, most migrants live a fairly marginal existence in the city while clinging to most of their traditional values."96 Urban migration alone is not a route to cultural assimilation, but it does have other far-reaching social consequences.
By the late 1960s, a new generation of young people had grown up in cities, at the same time maintaining their ties to reservation communities. As they reached adulthood, they organized to form pan-Indian activist organizations such as the Indians of All Tribes and the American Indian Movement. The former group occupied and demanded title to Alcatraz Island; the latter took possession first of the Bureau of Indian Affairs headquarters in Washington (which they termed the "Native American Embassy") and then the hamlet of Wounded Knee, South Dakota. Both actions, though symbolically meaningful in and of themselves, were grounded in Indian interpretations of the rights and sovereignty granted to tribes under existing treaties and were carried out to call attention to the fact that the government was not living up to its part of these bargains.
At the same time, those same treaties were being tested and upheld in important court cases and congressional actions. Tracts of lands of various magnitudes, ranging from the relatively small Taos Blue Lake97 to the massive 40 million acres of the Alaska Native Claims Settlement Act,98 were returned to Native peoples on the basis of their treaty or aboriginal rights. The Menominee Reservation in Wisconsin, terminated in response to House Concurrent Resolution 108, was restored.99 Other significant land claims cases were advanced, with varying success, in Maine,100 Massachusetts, New York,101 Rhode Island, Connecticut, and South Carolina.
In one of the most famous, controversial, and far-reaching decisions of the 1970s, U.S. v. Washington (1974), Judge Boldt of the 9th Circuit Federal Court recognized the inherent superiority of treaty rights over the privileges of ordinary citizens and maintained that the state could regulate treaty-protected fishing only if it could be shown that it could not obtain the desired ends of conservation by any other means.102 In this historic case, recently substantially upheld by the Supreme Court in Washington v. Washington State Fishing Vessel Association,103 the Court decided that treaties gave the tribes the right to take between 45 and 50 percent of the total amount of harvestable fish in the state.
In the area of water rights,104 some fifty Indian suits have recently been filed in the West and Southwest. These assert, largely on the basis of the Winters v. U.S. (1908)105 decision, that treaties guarantee the tribes as much water as it takes "to make their reservations flourish," and that they have prior claim on the use of any waters that lay under or flow by or through their territory. The so-called Winters Doctrine gives tribes "command of the lands and waters"control of all their beneficial use whether kept for hunting, for grazing herds of stock, or turned to agriculture or other forms of development. In the system of Western water law, where first users have prior rights, Indian tribes, by virtue of their ownership of the lands from time immemorial, or because the establishment of a reservation generally predated any contiguous permanent settlement, have a first use that makes their water rights paramount over those of all other users. In areas where tribes, such as the Pueblos, hold unextinguished aboriginal land title on lands where waters were used in precontact times to support agriculture (through irrigation and so on), there are "concomitant appurtenant unextinguished aboriginal" water rights that supercede all others.
Needless to say, this list of asserted claims has won Indians few friends among those most competitive with them on a local or regional level. Backlash movements have sprung up in a number of states, many of them part of an organization euphemistically titled the Interstate Congress for Equal Rights and Responsibilities. As in the past, equalization of Indian rights translates to mean reduction of Indian rights, that is, concession of those elements of special privilege that derive from agreements reached in the eighteenth and nineteenth century treaties between the tribes and the United States. A booklet widely circulated, Indian Treaties/American Nightmare, by C. Herb Williams and Walt Neubrech106 regards residual treaty rights as a threat to civilization-as-we-know-it and calls for their speedy demise, primarily because they interfere with current majority "rights" in some areas.
A bill introduced in the 95th Congress by Rep. John Cunningham (D-Washington) called for the abrogation by the president of all treaties with Indian tribes entered into by the United States.107 It was predictably titled the Native American Equal Opportunities Act, and called for the unilateral termination of the trust relationship between the tribes and the federal government, and the liquidation of all tribal lands and assets, which would be distributed to individual tribal members. This act received little support in Congress and was summarily defeated, but to many Indians it seemed ominously to portend a rebirth of a terminationist philosophy. To demonstrate the depth of their opposition, Native people from throughout the United States participated in a 1978 cross-country march on Washington to lobby in favor of the maintenance and further realization of Indian treaty rights.
The insistence on the right to special status distinguishes Indian "activists" from those of virtually every other minority group, and is often a bone of contention between Native Americans and their potential supporters. To some it appears, in the words of the Supreme Court of the State of Washington, that "the law has . . . conferred upon tribal Indians and their descendents what amounts to titles of nobility, with all that entails."108 From the Indian (and legal) point of view, however, Indian tribes granted rights to the United States, and thereby to a degree remain in control of everything not expressly granted,109 whereas all other groups seek rights from the various branches of the American government. Moreover, Indians do not want blanket "equality"; they feel they have paid welland in advancefor the few special rights and privileges accorded them and are reluctant to wipe the slate clean and join a common pool of "citizens." The right to self-determination on the part of an Indian tribe is virtually the opposite of equal access.
In terms of their "demands" and their rationales for these goals, Indians are for the most part in sharp contrast with other groups. For one thing, whereas oppressed groups traditionally seek the overthrow of, radical change in, or major new concessions from the government that has discriminated against them, Indians are notoriously antirevolutionary. They want actualized what they have been promised on paper for one or two hundred years. Their best hope lies in the honoring of agreements made by the United States when Indian power was relatively stronger. Though there has been some hopeful consideration of the prospects of United Nations intervention in their behalf, or other such developments, pragmatic Indians feel they are unlikely soon to be in a very advantageous bargaining position, given their numbers in the total American population. Native American tribes have often fared best in courts where conservative judges apply the letter of the law.
Indians feel that obligations are owed them not merely because a government should be fair and humane toward all its citizenry, but more important, because this government is obliged to keep existing promises and fulfill active contracts. Every major tribal or pan-Indian organization, whatever its self-presentation or tactics, is committed at base to the same thing: exhorting the United States to abide by treaties, statutes, and other formal understandings that have been made. As such, Indians make poor coalition partners with other ethnic minority groups that seek structural or innovative changes in government and law.
Finally, Indian tribes are by no means united in their short-term goals or strategies. Though tribes have cooperated in various constellations on one or another policy (and are united in opposition to others, such as termination), tribes are individually defined in their relationship with the American government by their specific treaties and, as a result, are occasionally competitive with other Indian nations. Many theorists have argued that a unified front must be sought and maintained by all Native groups. Such a plan of action, they say, is the only route to not only success but survival; but people have been saying the same thing to Indians for two hundred years, to no avail, and Indians are still very much here.
Few non-Indians truly realize what every Native American knows absolutely: that historically, culturally, philosophically, legally, and in many other respects, tribes really are distinct, and it is in their unique qualities that their strengths and traditions reside. Indians are not a single ethnic group and show no signs of becoming one. They have been forced to respond to uniform American policies, but the pattern of their reaction has varied greatly from tribe to tribe. Although such a reality has its obvious liabilities, it may not be altogether a disadvantage. One million Indians, even if united, are not likely to affect profoundly the American nation with its 250 million people. However, when the federal government is mandated, as is now the case, to supervise and live up to two hundred separate, diverse treaties, the number of people involved matters less. It is much more unwieldy to control a heterogeneous Indian population than to deal with one homogeneous group.
If nothing else, it was widely recognized in Indian tribes throughout North America in the precontact period that tribal members had pervasive and inherent rights to make individual choices. "United fronts" are difficult to achieve even within tribes, where competing factions (clan versus clan, "traditionalists" versus "progressives," and so on), each believing that it represents the best interests of the group, vie for ascendancy and influence. On a national scale, this incipient divisiveness is discernible on many levels. Though increased mobility and the existence of national Indian organizations facilitate frequent meetings of leaders and others from various tribes, few strong national or pan-Indian leaders have emerged who have remained in authoritative roles for long. Perhaps it is inevitable that no single individual, the product of a particular tribe and experiential background, can successfully represent such a diversity of interests, but the short life of national Indian leaders has become a standing jokethe Indian crab syndrome110 among tribal people. All this is not to say that Indians cannot and have not worked together for common goals in particular casesonly that the Great Indian Alliance, long the bugaboo of paranoid pioneers, is no closer to realization today than it was two hundred years ago.
At the conclusion of the 1970s, American Indians seemed to be at a crossroads of rather major proportions. Statistically they remain among the poorest economically, the least employed, the unhealthiest,111 the lowest in education and income level,112 and the worst-housed113 ethnic group in Americabut there are signs of improvement in each area.
Yet, somewhat to their own and the federal government's surprise, Indians find themselves possessed of undreamed-of resources. The Great American Desert, thought to be the ideal out-of-the-way spot to locate Indians in the nineteenth century, turns out to have more in common with Arabia than anyone at the time imagined. Of the 90 million acres owned by Indian tribes on over two hundred reservations in twenty-six states, it is estimated that over 53 million of these acres contain a good deal of the raw materials this nation will need to achieve energy independence.114 Nearly two-thirds of all the low-sulphur coal reserves in the country are contained either on or near Indian land, and almost all of the potential uranium reserves are found in Indian Country.115 Other tracts of tribal lands contain, or are adjacent to, large copper reserves, have significant geothermal production, or have the potential for lucrative oil and gas production.
More specifically, the Southern Utes in Colorado, the Uinta-Ouray Utes in Utah, and the Blackfeet in Montana all have gas and oil reserves, as do the Shoshones and Arapaho in Wyoming. The Bannocks and Shoshones, whose reservations are located in Idaho, own one of the richest phosphate deposits in the West. The Navajo and the Hopi reservations in the Southwest contain vast oil and gas fields as well as uranium reserves and so much coal that the Navajo tribal chairman, Peter MacDonald, has estimated the quantity to be half of all strippable coal in the United States.116
In 1975 twenty-five Indian tribes formed the Council of Energy Resource Tribes (CERT), whose goals are the promotion of the well-being of member tribes through the protection, conservation, control, and prudent management of natural resources. CERT intends to assist its members in developing the capability to manage their resources for their own benefit and according to their own values.117
Perhaps the major legal questions to be addressed by Indians and their representatives in the coming years will be those that determine who will ultimately control these resourceswho will decide if and when and where and how much to develop, and who will have the final say if a tribe and the federal, state, or adjacent city government disagree over priorities. Conceivably, Congress could always attempt to assert plenary power, claim eminent domain, and unilaterally breaking its treaty promises, confiscate "in the national interest" the exhaustible mineral resources of Indian tribes. Certainly that would be in one tradition of American Indian policy. Or the courts could further define the reserved rights of tribal sovereignty, protecting the trust relationship and underlining the self-determination ability of Indian nations.
Whichever course is followedgrasping self-interest or respect for the lawIndians will once again play the role of "the miner's canary," testing the integrity of this nation's promises. There is little doubt that many tribes will experience a degree of affluence in the coming few years, unparalleled since the European invasion. There will be changes and developments in tribal communitiesbut the tribes have always been dynamic, appearing to be static only in the nearsighted eye of the culture-bound observer, who believes that the only real Indians live in museums. As some tribes begin to at least achieve a degree of economic parity with other segments of the American population, it is likely that some non-Indians will once again assume that sovereignty and the trust status should cease to apply. It is then that the real mettle of the American system will be tested: has the bitter experience of the past two hundred years taught anything, or will the same disenfranchisements be attempted once again?
The American Indian Policy Review Commission, founded by Congress in 1975 and instructed to conduct a thorough review of all aspects of federal Indian policy, concluded in its Final Report:
The cornerstone of Federal Indian Policy can be stated simply and clearly. From the very beginning of this country, the law has recognized that the Native people in this country possess a right to exist as separate tribal groups with inherent authority to rule themselves and their territory. Although the United States necessarily exercises predominant power, it has time and again bound itself to respect this basic Indian right and has assumed the responsibility to protect the Indian people in the possession of their lands and in the exercise of their rights. Consequently, self-government (i.e., sovereignty) in conjunction with the trust relationship, is truly the inheritance of Indian people. Although times and conditions change, the United States' adherence to a policy of continuing to keep faith with the Indians on this fundamental level will always remain the foundation of Federal Indian Policy.118
Never has there been a greater misnomer than to call Indians the "vanishing Americans"; against the greatest of odds over the past five centuries, they have proved their staying power. Today, like the colonists who framed the American Constitution, "tribes hope to secure their political rights on legitimate historical and legal grounds, out of continuity rather than novelty. The foundation of this approach is and was an appeal to charters."119 From their first grant of land to the Virginia Colony to acceptance of the Indian Self-Determinaton Act, almost every international agreement the tribes have ever entered into with Europeans or their descendants has in whole or in part affirmed the principle of sovereignty. Tribal allegiance and identity have weathered disease and removal, allotment and termination, war and indifference. Of all the myriad rich and diverse customs that are identified with one tribe or another, a single traditionsurvivalunites them all.