11. The Self-Determination Era (1960-Present)


Indian Civil Rights Act

Self-determination and Educational Assistance Act

Tribally Controlled College Assistance Act

Indian Child Welfare Act

Indian Religious Freedoms Act

Indian Gaming Regulatory Act 

Many studies were undertaken by the government and private organizations, during the late 60s and early 70s, to consider the status of Indian administration, education, and health.  All the studies found that Indian health, social and educational conditions had improved little since the Meriam report of 1928.  Again, a federal policy, termination, had clearly failed to liberate Indian people, or solve the Indian problem.  If anything, it had increased, again, the suffering and despair of Indian people.  Indian education was considered a national tragedy.    

The abuses of the termination era led to significant reforms beginning in the late 1960s, much as the IRA was a reaction to the impact of the allotment era.  And the 1970s and 80s can be characterized as a period when tribes benefited from legislation and judicial decisions like no other time in history; a period that generally recognized the powers invested in tribal self-government, and excluded reservations from state authority.  

On the other hand, the late 1980s and 90s have seen some puzzling decisions along with continued judicial and legislative intrusions into tribal sovereignty.  Attempts at legislating state authority over non-Indian land on reservations (as an example, see  Senator Conrad Burn's proposed legislation of 1997 and opposing testimony of the late Tribal Chairman Micky Pablo), as well as abolishing tribal sovereign immunity, are some of the newer crusades requiring vigilance on the part of tribal governments.   

Indian Civil Rights Act, 1968

The ICRA extended most of the protections of the Bill of Rights to tribal members in dealings with possible unjust acts by tribal governments.  As sovereigns, the tribes were not required to duplicate the federal governments constitutional guarantees—tribal governments were free to formulate their own autonomous administrations.  The ICRA authorized tribal court jurisdiction in all legal issues except writs of habeas corpus (illegal imprisonment) where federal courts have authority.  In other words, federal courts do not enforce the ICRA according to dominant cultural standards.  The bill also granted states the option to “retrocede” jurisdiction--under Public Law 280--back to the tribes and federal government.

Other legislation and programs aimed at combating poverty, discrimination and improvement of education included the Economic Opportunity Act, which provided funds for tribes to run Head Start and Upward Bound, The Manpower Development and Training Act (which included Kicking Horse Job Corp), the Indian Health Care Improvement Act, the Indian Financing Act, and the Indian Education Act. 

In 1971, Congress passed the Alaska Native Claims Settlement Act.  The land claims of Alaska Natives—to most of the state—had never been resolved.  The complex act extinguished aboriginal claims but called for the transfer of 44 million acres of land to new Native-owned and controlled state-chartered corporations.  The Act also provided for a cash payment of nearly $1 billion to Alaska Natives.

Cinematic Debut, 1972

Johnny Arlee makes his major film acting debut, as a real Flathead Indian, in Jeremiah Johnson, staring Robert Redford.

Indian Self-Determination and Educational Assistance Act, 1975

With the passage of the Indian Self-Determination and Educational Assistance Act, or Public Law 93-638, Congress again demonstrated its acceptance of tribal autonomy.  Often referred to as “638,” the act allowed the Secretary of the Interior and the Secretary of Health and Human Services to “contract” directly with tribal governments to administer BIA or Indian Health Service programs.  Many tribal governments, including the CS&KT, now manage their own housing, education, health care, social services, forestry, and law-enforcement programs.  The tribes have also contracted Kicking Horse Job Corp.

 

Tribally Controlled Community College 

Assistance Act, 1978  

An outgrowth of the self-determination era, the ” TCA” also granted tribes the opportunity and funding to establish their own tribal colleges.  Salish Kootenai College is one of more than two-dozen colleges, which are direct products of that legislation.

Chronic fiscal issues have plagued the TCA, especially during the Reagan years.  In testimony before the U.S. Senate Select Committee on Indian Affairs (to amend the act and double the original federal authorization for fiscal years 1990-1994) Dr. Joe McDonald, President of Salish Kootenai College, was asked to identify the single most important contribution being made by tribal colleges to Indian Country.  He replied, “…hope…”

Salish Kootenai College

 

 

Indian Child Welfare Act, 1978

 

“…In Minnesota, Indian children are placed in foster care or in adoptive homes at a per capita rate five times greater than non-Indian children.  In Montana, the ratio of Indian foster-care placement is at least 13 times greater…In Wisconsin, the risk run by Indian children of being separated from their parents is nearly 1600% greater than it is for non-Indian children…In 16 states surveyed in 1969, approximately 85% of all Indian children in foster care were living in non-Indian homes.”

Indian Child Welfare hearings before Sen. Subcomm. On Indian Affairs, 1974

With the intent of the various assimilation policies to destroy Indian culture and tribal integrity, thousands of children were removed from their homes to off-reservation boarding schools.  But with the reinvention of Indian self-determination in the 1970s, it became clear the most widespread separation of Indian children from their families and tribes was occurring in state courts, through adoption or removal to foster care.  Social workers and judges, well-meaning but untrained in Indian cultural perspectives and social norms, made judgments on child placement based on white, middle-class values. 

Surveys in 1969 and 1974 by the Association on American Indian Affairs revealed nearly a third of all Indian children were separated from their families and culture and placed in foster care or other institutions.   

A reform measure intended to combat the widespread separation of Indian children from their parents, the Indian Child Welfare Act, by any standard, was a sweeping development in Indian law and policy.  It reconstructed child custody procedures by enacting the following basic provisions:

1.  Indian children in Indian Country are within the exclusive jurisdiction of tribal court.

2.  If a child custody proceeding begins in state court, the Indian child’s tribe must be    notified, and the tribe has the right to intervene in the state proceeding.

3.  If the tribe or either parent requests a transfer from state court to tribal court, the state court must transfer the case—unless there is an objection by a parent (but not the party seeking adoption).

4.  If a case remains in state court, a termination of parental rights can be ordered only if supported by proof beyond a reasonable doubt.

5.  If an Indian parent does lose parental rights in a state court proceeding, the court is required first to follow these preferences in any adoptive placement:  a) members of the child’s extended family, b) other members of the child’s tribe, c) other Indian families.  Only then can adoption be made to a non-Indian family.

The ICWA is a leading example of modern legislation that protects Indian culture, limits state jurisdiction, and respects tribal institutions by recognizing their authority over sensitive, important matters.

American Indian Religious Freedom Act, 1978  

Through more than 200 years, Indian religion and culture has remained “exotic and incomprehensible” to Congress and the courts—devoid of the tenets of Christianity.  Moreover, the legal and political systems of the United States could not reconcile the need to preserve Indian culture and religion as inseparable sides of the same coin, with the institutionalized separation of church and state.  Accommodating Native peoples belief and value system was difficult at best.

In its attempt to redefine its relationship with Indian cultural imperatives, the AIRFA acknowledged the First Amendment had not adequately protected Indians’ rights to practice their religions.  The act promised to “protect and preserve for American Indians their inherent right of freedom to believe, express and exercise traditional religions.”  It also instructed federal agencies to review their regulations for possible interference with Indian religious practices.

Unfortunately, the act has provided little assistance to tribes in the protection of their religious rights.  Few agencies changed their regulations and few courts have upheld tribal suits.  Hence, ignorance about religious beliefs, especially with respect to sacred sites, still results in Indians being denied the right to practice their own religion, in their own way.

Indian Gaming Regulatory Act, 1988

In 1987, the Supreme Court issued a landmark decision in California v. Cabazon Band of Mission Indians, affirming tribal sovereignty over gaming activity on their reservation.  The decision held that tribes could develop their reservation economies through high-stakes gambling free of state regulation (if such gambling is not prohibited within the state).  Congress, of course, was quick to respond.  The next year, using its plenary power, Congress passed the Indian Gaming Regulatory Act.

The IGRA narrows the scope of the Cabazon ruling by giving states a greater role in the regulation of Indian gaming.  Even so, Indian gaming has had a profound, even revolutionary, impact on Indian Country and non-Indian perceptions of reservation economic development.

Fewer than 100 tribes out of 550 federally recognized tribes manage high-stakes gaming operations.  However, revenues are in the billions of dollars (though such revenues are dwarfed by non-Indian casino gambling).  Beyond any valid criticisms, gaming does offer an answer to reservation poverty and unemployment.  Unfortunately, with their relative success in gaming comes the baggage of distorted public perceptions of Indians “wallowing in gambling dollars.”

The IGRA, which is extraordinarily complex, was designed to deal largely with Class III gaming, such as electronic keno and poker, or card games played “against the house.”  It requires a state-tribal compact that allocates regulatory authority between the state and tribe providing enforcement of rules and regulations.  In the formulation of the compact, states and tribes are expected to negotiate “in good faith.”  Originally, tribes were allowed to sue the state for failing to negotiate in good faith, however, a subsequent Court ruling (Seminole of Florida v. Florida, 1996) nullified the provision.

 

 

Engulfed by the passage of time…

     “After my long journey through this body of law, I have reached my own conclusion as to why the field has developed as it has, as to the deepest reasons why the Court has refused to allow American Indian tribes to be engulfed by the passage of time.

     These old laws emanate a kind of morality profoundly rare in our jurisprudence.  It is far more complicated than a sense of guilt or obligation, emotions frequently associated with Indian policy.  Somehow, those old negotiations—typically conducted in but a few days on hot, dry plains between…federal bureaucrats and seemingly ragtag Indian leaders—are tremendously evocative.  Real promises were made on those plains, and the Senate of the United States approved them, making them real laws.  My sense is that most judges cannot shake that.  Their training, experience, and, finally, their humanity—all the things that blend into the rule of law—brought them up short when it came to signing opinions that would have obliterated those promises."

  Charles Wilkinson, American Indians, Time and the Law

Reprinted from Federal Indian Law, Getches and Wilkinson, 2nd Ed., 1998, with permission of the West Group.

 

 

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