1. RECOGNITION OF LAND RIGHTS / TITLE
|Recognition of Land Rights/ Title Scores|
- Until 1871, when the United States ceased entering into treaties with Indian tribes, almost 400 treaties had been signed. Most treaties concerned land title and usufructuary rights to land. Treaties were designed as an exchange, ceding territory to the United States in return for a set of guarantees, which largely entailed rights to specific territories for the tribe. These reserves were to be protected from non-Indian encroachment.
- In the landmark Worcester v. Georgia (1832), the court explained that "The treaties and laws of the United States contemplate the Indian territory as completely separated from that of the States."
- However, under federal US law, not all Indian land rights are afforded "property rights" status. Property rights status is considered as recognized title and cannot be unilaterally confiscated by Congress. Lands without this protection (i.e., unrecognized lands held by aboriginal title, by virtue of historical possession and use) can be taken without compensation.
- In 1934, the Indian Reorganization Act (also called the Wheeler-Howard Act) was passed by Congress "to conserve and develop Indian lands and resources."
- Section 3 of the Indian Reorganization Act stipulates that Indian lands will be held in trust and said lands can only be alienated to the United States.
- In 1946, the US Congress established the Indian Claims Commission. Land was predominantly the issue addressed by the commission. However, the commission did not have the authority to restore land rights. Instead, where a claim was successful, monetary compensation was provided in lieu of land title. The Indian Claims Commission was disbanded in the late 1970s and the remaining cases were transferred to the US Court of Claims system.
- Under the Winters Doctrine, stemming from Winters v. United States (1908), tribes are entitled to reserved water rights. Indian reservations created by Congress or executive order are conferred the right to waterways within their territory, as well as the protection of streams, rivers and other water sources that are used by tribes. Indian water rights are not created by use and cannot be lost by non-use.
- Under the Clean Water Act (1972), Indian tribes can regulate their water resources in the same manner as states and can enforce its standards against upstream users (if the standards have been approved by the Environmental Protection Agency).
- The Bureau of Indian Affairs is responsible for the administration and management of 55 million surface acres and 57 million acres of subsurface minerals estates held in trust by the United States for American Indians, Indian tribes, and Alaska Natives.
2. RECOGNITION OF SELF-GOVERNMENT RIGHTS
|Recognition of Self-government Scores|
- The United States has recognized that its relationship with Indian tribes constitutes a government-to-government relationship.
- Indian tribes are independent sovereign governments, separate from the states and from the federal government. In the case of Cherokee Nation v. Georgia (1831), the Supreme Court Chief Justice John Marshall famously declared that Indian tribes were "domestic dependent nations...Their relationship to the United States resembles that of a ward to his guardian" (quoted in Anaya 2004, 24).
- The Indian Reorganization Act of 1934 was an attempt to afford Indian tribes greater sovereignty and self-government over their territories. Section 16 states that “any Indian tribe, or tribes, residing on the same reservation, shall have the right to organize for its common welfare, and may adopt an appropriate constitution and bylaws.”
- Tribal sovereignty over tribal territory, including tribal members and non-members, was recognized in the case of United States v. Mazurie (1975). The court stated that “Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory. … Indian tribes within ‘Indian Country’ are a good deal more than ‘private, voluntary organizations.”
- Tribal sovereignty is said to be inherent and it exists unless and until the United States Congress extinguishes it. In United States v. Wheeler (1978), the court explained that “The powers of Indian tribes, are, in general, ‘inherent powers of a limited sovereignty which has never been extinguished.’”
- In 1975, the Indian Self-Determination and Education Assistance Act was passed to encourage tribal participation in, and management of, programs that had been administered on their behalf by various federal departments.
- Under the Tribal Self-Governance program, signed into law in 1994, greater responsibility for policy and program administration was transferred from the federal Bureau of Indian Affairs to tribal governments.
3. UPHOLDING HISTORIC TREATIES AND / OR SIGNING NEW TREATIES
|Upholding Treaties Scores|
- There are nearly 400 treaties signed between the United States and Indian tribes: the first treaty dates back to 1778 between the United States and the Delawares (Prucha 1994, 3). In 1871, the United States ceased entering into treaties with Indian tribes.
- In most cases, treaties were designed to take land away from a tribe. In exchange for land, the United States promised to respect a tribe's sovereignty, and to provide for the well being of tribal members (ILRC 2006, 3).
- The United States Supreme Court ruled in 1903 in Lone Wolf v. Hitchcock that Congress maintains unrestricted power to unilaterally abrogate treaties. However, in United States v. Dion (1986), the court recognized that "Indian treaties are too fundamental to be easily cast aside." (quoted in Prucha 1994, 386).
- Recent court rulings have affirmed the treaty rights of tribal governments. In Washington State Department of Licensing v. Cougar Den (2019), the court held that that the treaty rights of the Confederated Tribes and Bands of the Yakama Nation should protect its tribal member from having to pay fuel tax to the state of Washington. In Herrera v. Wyoming (2019), the court overturned a previous decision to affirm the treaty rights of the Crow Tribe to hunt on off-reserve lands (Braun, 2020).
- In upholding historic treaties, in 2020, the Supreme Court ruled that approximately half of the land in the state of Oklahoma is within a Native American reservation. Writing for the majority opinion, Justice Neil Gorsuch wrote that “…we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word” (Healy and Liptak, 2020).
4. RECOGNITION OF CULTURAL RIGHTS (LANGUAGE, HUNTING / FISHING, RELIGION)
|Recognition of Cultural Rights Scores|
- Fishing and hunting on Indian reservations is subject to the jurisdiction of Indian tribal governments. The state governments may not regulate Indian tribes or their members within the boundaries of a reservation; however, federal conservation laws may apply.
- American Indians may hunt, fish and trap on forest lands in the public domain. In some instances, specific treaties, statutes or other federal laws and regulations, as well as intergovernmental agreements, provide Indians with hunting and fishing rights. For example, the Navajo Treaty with the United States allows tribal members to hunt on unoccupied ground in San Juan County contiguous to the reservation. Treaty hunting rights do not extend to private, developed, or cultivated lands.
- The courts have ruled that, even in the absences of a treaty right, tribes may hunt on lands aboriginally held by them, so long as their aboriginal right has never been extinguished by Congress or expressly given up by the tribes (Ziontz 1996, 200).
- Ordinarily the taking of bald eagles, eagle parts, hawk feathers or parts, is in violation of federal law. However, an exception is made for eagles and eagle parts used for American Indian religious and cultural purposes. As well, Indians who are members of federally enrolled Indian tribes are exempt from prosecution under the Migrant Bird Treaty Act, and thus can legally possess hawk feathers.
- The Native American Language Act of 1990 was passed by Congress in order to promote and protect traditional Native American languages. Section 102 (1) reads: "The Congress finds that the status of the cultures and languages of Native Americans is unique and the United States has the responsibility to act together with Native Americans to ensure the survival of these unique cultures and languages."
- The Indian Civil Rights Act of 1968 affords the free exercise of religion and prohibits Indian tribes from denying this right to an individual. The act goes further in its guarantee of religious freedom, and does not prohibit a tribe from establishing a religion.
- Under the National Historic Preservation Act of 1966, the religious and cultural sites of Indian tribes are granted federal protection.
- In a joint resolution by the Senate and House of Representatives in 1978, the US Congress expressed the general policy of the US government toward traditional Native American religions. The resolution reads: "henceforth it shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites" (quoted in Utter 2001, 157).
5. RECOGNITION OF CUSTOMARY LAW
|Recognition of Customary Law Scores|
- In 1993, the US government passed the Indian Tribal Justice Act 1993. Section 2 (7) of the Indian Tribal Justice Act of 1993 reads: "traditional tribal justice practices are essential to the maintenance of the culture and identity of Indian tribes and to the goals of this Act." This legislation affirms the principle that tribal courts are the appropriate venue for specific forms of justice unique to particular Indian tribes.
- In 1978, in the case of United States v. Wheeler, which dealt with the issues of tribal criminal jurisdiction over tribal members, the court explained that tribes had been self-governing political communities prior to the arrival of the Europeans and had not given up full sovereignty, including the power over legal traditions within tribal territory.
- In Williams v. Lee (1959), the court maintained that the States do not have jurisdiction over civil matters that occur on Indian reservations and brought by a non-Indian against an Indian. The matter would be dealt with through tribal courts and this authority could only be limited by Congress.
6. GUARANTEES OF REPRESENTATION/CONSULTATION IN THE CENTRAL GOVERNMENT
|Guarantees of Representation Scores|
- The federal obligation to consult Indian tribes was enshrined by President Clinton under Executive Order 13175--Consultation and Coordination with Indian Tribal Governments on 6 November 2000.
- The Executive Order establishes "regular and meaningful consultation and collaboration with tribal officials in the development of Federal policies that have tribal implications, to strengthen the United States government-to-government relationships with Indian tribes, and to reduce the imposition of unfunded mandates upon Indian tribes."
- The National Historic Preservation Act (2004), which governs the historic preservation activities of the US federal government, requires consultation with Indian Tribes under Section 106 of the Act.
- The Tribal Law and Order Act, which was signed in July 2010, requires the Bureau of Indian Affairs and the Office of Justice Services to establish certain policies, procedures and guidelines for consultation with tribes.
7. CONSTITUTIONAL OR LEGISLATIVE AFFIRMATION OF THE DISTINCT STATUS OF INDIGENOUS PEOPLES
|Affirmation of Distinct Status Scores|
- Sections 2 and 8 of Article I of the Constitution of the United States explicitly mentions "Indians," and "Indian Tribes." Moreover, section 2 of the fourteenth amendment also refers to "Indians."
- The constitutionality of Indians and Indian tribes was addressed in the Supreme Court decision for United States v. Antelope (1977), wherein the court stated that, "classifications expressly singling out Indian tribes as subjects of legislation are expressly provided for in the Constitution and supported by the ensuing history of the Federal Government's relations with Indians."
8. SUPPORT / RATIFICATION FOR INTERNATIONAL INSTRUMENTS ON INDIGENOUS RIGHTS
Partial, but limited.
|Support for International Instruments Scores|
- The United States has not ratified ILO Convention C 169 Indigenous and Tribal Peoples Convention, 1989.
- The United States was one of four countries that voted against the UN Declaration on the Rights of Indigenous Peoples.
- In April of 2010, the United States announced at the UN Permanent Forum on Indigenous Issues that it has decided to review the US position on the Declaration. The US Department of State, and other federal agencies will be hosting consultations with federally recognized tribes, NGOs, and other stakeholders on this issue.
- In December 2010, the United States government removed its opposition to UNDRIP. President Obama announced that the United States would lend its support to UNDRIP; however, the statement released by the US State Department made clear that it did not regard the Declaration as binding on US law (US Department of State, 2011).
9. AFFIRMATIVE ACTION
|Affirmative Action Scores|
- Affirmative action has been American policy since an executive order by President Kennedy in 1961. This executive order mandated that federally financed projects take affirmative action to ensure that human resources practices are free from racial discrimination.
- An executive order issued by President Johnson in 1965 amended the previous affirmative action order acknowledging the policy's goal of correcting the effects of past and present discrimination because of race and skin colour, amongst others.
- As per the operation of the Executive Order Program, "Each contracting agency in the Executive Branch of government must include the equal opportunity clause in each of its non-exempt government contracts. The equal opportunity clause requires that the contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin. American Indian or Alaskan Native, Asian or Pacific Islander, Black, and Hispanic are considered minorities for purposes of the Executive Order. This clause makes equal employment opportunity and affirmative action integral elements of a contractor's agreement with the government" (US DOL 2002).