The role of the state in defending and/or infringing Native Indian Civil Rights in United States

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Table of Contents

Introduction
States Defense of Native Indian Rights
State Infringing on Native Indian Rights
Discussion
Conclusion
References

Introduction

Native Indians have had a turbulent past with the United States in general and the states within which they reside in particular. Their history is marred by significant events such as Indian wars and failed attempts by the federal government to dismantle tribal governments and assimilate Indians (Wunder 2000, p.13).

These events have culminated to the realization that limited self-determination in Indian Country is the best solution. American Indians have therefore emerged as a unique group of Americans who have some limited form of self-determination in Indian Country.

Even though American Indian countries are largely unconstrained by the US Constitution, the State government exerts significant influence on the lives of American Indians.

As such, the State government has the power to influence the civil rights of the tribal communities. This paper will set out to critically evaluate the role of the state in defending ad infringing Native Indian Civil Rights in the United States.

The paper will demonstrate that the State has to a large extent played a positive role in defending the Civil Rights of the Native Indians.

States Defense of Native Indian Rights

The State allows the Native tribes to exist within their boundaries with some amount of autonomy. Riley (2007a, p.1050) notes that Native Indians have their own “nations” within the borders of the US and this “nations” are free to maintain policies, procedures and rules that are inconsistent with those of a liberal democracy.

This means that Native Indians are largely unconstrained by the US constitution and the tribes can set up policies that they deem most appropriate for the natives (Johnson 1999, p.45).

This policy by the Federal government to allow the Natives to set up their own rules helps the natives to preserve their indigenous values. Riley (2007a, p.1051) asserts that tribal sovereignty assists in the preservation of differentness “even when tribal laws are seemingly inappropriate to American civil rights norms”. The State therefore promotes the rights of Native Indians by allowing tribal governments to exist.

The Federal and State government has championed religious freedom as a fundamental right to the American Indians. This has been through the 1978 American Indian Religious Freedom Act (AIRFA) which states that religious freedom is an inherent right of all people and further recognizes that religious practices form the basis of Indian identity and value systems.

Michaelsen (1994, p.42) asserts that this congressional act was based on the resolve of the US government to protect and preserve American Indians’ right and freedom to believe and exercise their traditional religions.

Before AIRFA, American Indians had had their religious freedoms abused to a great extent. Sacred sites had been destroyed by governmental action such as the flooding of the Cherokee burial grounds following the completion of the Tellico Dam.

Sacred grounds had also been desecrated, and access to these sited denied or greatly limited to the American Indians. AIRFA presented a way through which State government could redress American Indian religious concerns (Michaelsen 1994, p.42).

AIRFA contains many affirmations which call upon federal agencies to reform their practices so as to respect Indian religious freedoms.

The educational system of a society is fundamental to the development and ultimate advancement of the entire community. Through the first quarter of the 20th century, the federal government embarked on a mission to assimilate American Indians into mainstream society through educational programs that sought to reorient students (Reyhner & Eder 2004 p.132).

This reorientation was through “replacing their native culture and knowledge with Western values and skills. This resulted in poor performance by Indians since students failed to see the relevance of the education offered to them for their daily lives.

An effective educational system which yields high results is therefore seen as being essential for a nation’s well being. The significance of culture of the minority to education has in some cases being ignored with negative effects.

Ladson-Billings (1995, p.157) asserts that multicultural countries have a tendency to implement mass education which results in establishment of the culture of the dominant language uniformly at the expense of minority culture.

The Indian Education Act in 1972 offset this since the government recognized the significance of culture in education. These moves by the state are in recognition of the fact that culture plays an important role in children’s learning and if the cultural issues are not addressed, the children will exhibit poor performance.

Walker (2004, p.42) declares that the passing of the Act in 1972 “ushered in a new era of reconciliation between the US Government and Native Americans”. This is because this bill promised access to proper educational services for Native Americans.

Native Americans are afforded special benefits by the US government therefore ensuring their civil rights. Through the Civilization Acts of 1802 and 1819, Native Americans are exempt from Federal taxation (Schultz 2000, p.695).

Despite this tax exemption, the government provides for special dispensations that are used for social and welfare programs. Some Americans in mainstream society hold it that this special treatment is unwarranted since it results in the disbursement of government services to a people who do not make a contribution to Federal government income.

The Federal government defended the position of the Native Indians by reaffirming their special status in the US. The state therefore defends the rights of the Native Indians to obtain some benefits from the Federal government while using their revenue to better the Indian Countries.

The rights of children are engendered in the civil rights that are afforded to all individuals and nations. Among the rights afforded to children is the right to special protection as well as fostering conditions where children can grow and develop in conditions of peace and security.

Studies reveal that as of 1974, between 25 to 35% of all native children were separated from their homes and living either in foster care, adoptive car, or institutions at the time” (Frichner 2010). This scenario was due to culturally insensitive child welfare laws that caused the removal of many native children from their homes.

Prejudiced application of local child protective laws resulted in increased native-child removal as state child welfare laws used criteria like “neglect” as the basis for removing a child from his family.

While application of child laws was done in the name of protecting the best interest of Indian children, the government did not take into consideration the cultural and social standards prevailing in Indian communities and families.

This clearly impeded the rights of Native Indian children. The Indian Child Welfare Act (ICWA) extended the protection of Native Indian children by extending tribal court jurisdiction to cover proceedings involving children living outside Indian Country (Stenzel 2009, p.6). The ICWA empowers native communities by assisting parents maintain parental rights.

This is achieved by raising the standards required for removal of children from their parents and in the event where children are removed, the ICWA encourages their placement within the tribal community.

As a minority group, Native Indians were subjected to racial discrimination with adverse effects. The state has offered the best protection against discrimination for the Native Indians. Dhingra (2008, p.48) notes that discriminatory treatment arose mostly from a lack of rights for the Native Indians.

Through the Indian Civil Rights Act, the State can protect Native Indians since discriminatory behavior can result in legal action against a person. The State has also done a lot to remove the narrow media representations of Native Indian.

These stereotypical depictions often carried a negative tone relative to the cultural norms of mainstream America. The State has brought about a well-rounded media image of Native Indians hence helping to dispel stereotypical views.

The state has therefore ensured the rights of Native Indians are respected by giving them an avenue through which to redress discrimination.

State Infringing on Native Indian Rights

The domination of the US government over the Indians (which became absolute around the turn of the 20th century) resulted in the infringement of the rights of Native Indians. (Cardell 1990, p.163).

Up to date, there have been moves to enforce American civil rights norms on the tribal communities. The rationale behind this is that hundreds of thousands of Americans work in Indian tribes and the tribal sovereignty infringes on their civil liberties (Schultz 2000, p.619).

A greater expansion of federal civil rights laws into tribal communities has the potential to destroy the indigeneity and the distinct forms of governance currently practiced by the tribal communities.

The US government has infringed on the civil liberties of Native Indians through its attempt to assimilate tribal governments. Kieval (2009, p.106) observes that up to 1934, Native Indians operated fairly independent of the federal government.

Following the Indian Reorganization Act of 1934, the government aimed to end allotment and create a process through which tribes could adopt Western, constitutional forms of government. As of the end of World War II, the US government embarked on a rapid assimilation plan aimed at Americanization of Indian children.

Legislations terminated treaties with hundreds of tribes and government assistance programs for Indians were ended in a bid to force Native Indians to abandon their traditional modes of government and join adopt the western form of government.

Schools were used as deconstructive tools since children spent minimal or no time living at home since schools were usually located far from tribal communities. This moves had major dire consequences for the Natives.

To begin with, the policy led to increased poverty on reservations as well as the creation of a class of poor urban Indians in many Western cities (Kieval 2009, p.107). Assimilation also infringed on one of the fundamental rights afforded to all individuals, the freedom to religion.

Frichner (2010, p.3) notes that most schools for indigenous children were administered by faith-based groups which sought to displace native children of native religious beliefs. In their place, the children were indoctrinated with non-native religious views in line with the religious administrations.

American Indian tribes have long been a concern for the dominant society since Indian tribes are the only governmental bodies within the US not bound by the US Bill of Rights. Riley (2007b, p.801) contends that it is this unease over tribes’ extra-constitutional status that led to the enactment of the Indian Civil Rights Act (ICRA) in 1968.

This act extends provisions similar to those contained in the US Bill of Rights to Indian tribes thus effectively violating some of the civil liberties of tribal governments.

As a result of concerns over the alleged civil rights violations by tribal governments, federal courts have sought for new ways to intervene under ICRA. Riley (2007a, p.818) asserts that it is erroneous and counterproductive to impose foreign cultures onto minority groups since true change only happens when driven by members of the self-governing society.

Discussion

The dual nature of the Native Americans as both a semi-autonomous people and as American citizens has resulted in their different treatment by the US government.

American Indians are held subject to Indian country laws and when they venture beyond reservation boundaries, they are subject to nondiscriminatory state law that applies to all citizens of the state.

As it currently stands, American Indians have certain rights and privileges that other American citizens lack. This preferential treatment is as a result of the State acknowledging the special relationship that exists between State and Tribal communities.

Impressively, the State has moved away from the historical policies towards Native Indians’ assimilation due to the adverse effect that assimilation had.

A troubling reality is that while the rights accorded to American Indians in their relations with federal and state governments are the same as those of any American citizen, these rights do not govern the relationship between individual Indians and their tribal governments.

Under tribal rules, individual Indians can therefore have their civil rights violated by the tribal leaders since their rights are not guaranteed.

The state can step in and protect individual Indians through the ICRA which affords federal protection to Indians in their internal tribal lives.

While some deem this as an encroachment on tribal sovereignty by Federal and State governments, this act is the means through which the state can defend the civil rights of Native Indians. Walker (2004, p.323) explicitly states that ICRA serves to “protect the rights of individual Native Americans from violations by their own tribe”.

The US government has played a major role in Native Americas educational advancement. While the role of this education was originally to assimilate Native Americans, through the Indian Education Act, Native Americans have been given the means through which to attain equal educational opportunity as mainstream society students (Michaelsen, 1994, p.6).

Historically, the Native American’s were excluded from educational policies that affected them. The Indian Education Act required the active participation of Native Americans in the management of their own educational policies hence presenting a dramatic change in the nature of Native Indians education.

This has by extension reinforced religious freedoms for Native Indians since there is a relationship between education and religious freedom.

Control over the education of children is of critical importance to the free exercise of religion by the Native Americans. While this control was historically denied to the Native Americans, Federal and State actors have put policies in place to ensure Tribal involvement in children education.

Community advocates and researchers who have highlighted the infringement of rights of Native Americans have been most instrumental in bringing about the positive changes that have taken place over the last half century.

These changes have been accompanied by the strengthening of native courts which has resulted in a greater of protection of rights for the Native Indians.

However, increased federal control over tribal matters will result in the end of core aspects of tribal differentness. As such, the federal government should exercise restraint when infringing on Native Indian Rights.

Conclusion

This paper set out to highlight the role of the state with regard to Native Indian Civil Rights so as to articulate positive role that the state has played in defending the Civil Rights of the Native Indians.

From this paper, it is clear that the suppression of Native Indian Civil Rights in the US was historically as a result of actions Federal government and states. Even so, the progressive steps taken to protect Native Indian Civil Rights have been due to legislation by the Federal government.

As a result of Acts such as the AIRFA and the ICWA, indigenous communities have a voice in making decisions that affect members of their community. This paper has identified that while the State government has to some extent encroached on tribal sovereignty through laws which take away the primacy of native courts. Too much federal control over tribal decision making could impede tribal self-governance and eventually destroy the tribal culture.

However, it has been noted that the State’s ambitions to ensure equal protection of Native American rights in a manner that preserves tribal culture is the best strategy to assure the civil rights of Native Americans are defended.

References

Cardell, KJ 1990, “Internal colonialism and Native Americans: Indian labor in the United States from 1971 to World War II”, Social Science Quarterly, vol. 4. pp. 158-171

Dhingra, P 2008, “Committed to ethnicity, committed to America: how second-generation Indian Americans’ ethnic boundaries further their Americanisation”, Journal of Intercultural Studies, Vol. 29, No. 1, pp.41-63.

Frichner, TG 2010, The Indian Child Welfare Act: A national law controlling the welfare of indigenous children, New York: American Indian Law Alliance.

Johnson, RT 1999, Contemporary Native American political issues, Rowman Altamira.

Kieval, S 2009, “Discerning discrimination in state treatment of American Indians going beyond reservation boundaries”, California Law Review, Vol. 105:799.

Ladson-Billings, G 1995, “But that’s just good teaching! The case for culturally relevant pedagogy”, Theory into practice, 34(3), 159-165.

Michaelsen, RS 1994, “Civil rights, Indian rites”, Society, vol.12: 34

Reyhner, J & Eder, J 2004, American Indian Education, Norman, Oklahoma: University of Oklahoma Press.

Riley, AR 2007a, “Good (Native) Governance”, Columbia Law Review, vol. 107. no. 5.

Rilery, AR 2007b, “Tribal Sovereignty and Illeberalism”, California Law Review, Vol. 95:799.

Schultz, DJ 2000, Encyclopedia of Minorities in American Politics: Hispanic Americans and Native Americans, Greenwood Publishing Group.

Stenzel, P 2009, “Safe haven laws and the Indian Child Welfare Act: conflicting laws and policy goals leave Indian children at risk”, Children’s Legal Rights Journal, vol. 29. No. 3.

Walker, S 2004, Civil liberties in America: a reference handbook, ABC-CLIO.

Wunder, RJ 2000, Native American Sovereignty, NY: Taylor & Francis.

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