American Indian section of the Report of the Comm. on Security & Cooperation in Europe, "Fulfilling Our Promises: The U.S. and the Helsinki Final Act"
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DOCUMENT: USHELSNK.TXT
FROM THE NOVEMBER 1979 REPORT OF THE COMMISSION ON SECURITY &
COOPERATION IN EUROPE, "FULFILLING OUR PROMISES: THE UNITED
STATES AND THE HELSINKI FINAL ACT"
AMERICAN INDIANS (21)
American Indians have much in common with other U.S.
minority groups. However, it would be extremely misleading
to view the rights of American Indians solely in terms of
their status as a racially distinct minority group, while
neglecting their tribal rights. The Indian tribes are
sovereign, domestic dependent nations that have entered into
a trust relationship with the U.S. Government. Their unique
status as distinct political entities within the U.S.
federal system is acknowledged by the U.S. Government in
treaties, statutes, court decisions and executive orders,
and recognized in the U.S. Constitution. This nationhood
status and trust relationship has led American Indian tribes
and organizations, and the U.S. Government to conclude that
Indian rights issues fall under both Principle VII of the
Helsinki Final Act, where the rights of national minorities
are addressed, and under Principle VIII, which addresses
equal rights and the self-determination of peoples.
21. Unless otherwise indicated, background information in
this section has been provided by the Office of the
Assistant Secretary for Indian Affairs of the U.S.
Department of the Interior.
The U.S. commitment to Indian self-determination is
articulated in the Indian Self-Determination and Education
Assistance Act that became public law in early 1975. The
policy of the U.S. Government, articulated in this law, is
designed to put Indians, in the exercise of self-government,
into a decision-making position with respect to their own
lives. The United States has recognized that it has not
always lived up to its obligations in its protection of the
rights of Native Americans to a continuing political
existence, to land and natural resources and to cultural
distinctness. The U.S. Government, however, is improving its
performance ant attempting to close the gap between policy
and practice.
At the CSCE hearings in April of 1979 on U.S. domestic
compliance with the Helsinki accords, criticism was directed
toward U.S. treatment of Indians -- both as citizens of
Indian nations and tribes, and as individual minority group
members. Other criticisms have been brought to the
Commission's attention by the U.S. Commission on Civil
Rights, which has solicited opinions from such sources as
tribal organizations and Indian interest law firms. In
addition, the Commission has noted criticism from other
signatory states. The allegations and criticisms concerning
Indian rights cover a broad spectrum: administrative and
institutional conflict of interest; coordination and funding
problems at the federal level; insufficient opportunity for
effective Indian involvement in the federal decision-making
process; inadequate protection of tribal rights by the
Federal Government; discrimination against Indians as a
minority; the poor socio-economic profile of Indians;
purported sterilization of Indian women against their
wishes; Indian prisoners of conscience and accusations of
police misconduct; forcible assimilation of Indians into
white society and removal of Indian children from their home
or tribal environment; and insensitivity to Indian cultural
needs. The remainder of this section of the report addresses
these criticisms and will attempt to assess Indian rights
within the context of the Helsinki Final Act.
THE FEDERAL ADMINISTRATION OF INDIAN POLICY
The Federal Government's trust responsibilities and
special relationship extends to Indian nations, tribes and
individuals. The major federal departments with programs
relating to Indians are Interior; Health, Education and
Welfare; Agriculture; Housing and Urban Development; and
Commerce. The Departments of Labor, Transportation,
Treasury, State and Defense also have programs important to
Indians. The Department of Justice handles most of the legal
problems affecting Indian rights. Other agencies such as the
U.S. Commission on Civil Rights and the Equal Employment
Opportunity Commission have functions of consequence to
Indians.
The Interior Department is the agency which has the
greatest impact on Indian affairs. Interior is explicitly
charged with the task of protecting Indian lands and
resources and has specific statutory responsibility for
ensuring the continued well-being of Indian tribes and
people. The Bureau of Indian Affairs (BIA) is the main
agency within the Interior Department that deals with Indian
affairs.
The dual role of the BIA as an advocate of Indian
interests and principle agent of the trustee (the United
States) has given rise to a large measure of Indian
mistrust. The BIA has been accused of paternalism and
mismanagement in the past. The present BIA administration
has acknowledged past problems and has taken steps to
resolve them, recognizing that it has often implemented
negative policies too vigorously, while positive policies
have been carried out less vigorously. The BIA is now
improving its management structure and system, and it is
moving to facilitate greater coordination and cooperation
with the other agencies on program and policy matters.
CIVIL, POLITICAL AND TRIBAL RIGHTS
While Indians in off-reservation areas may seek
protection as members of a national minority under the civil
rights laws, Indians on and near reservations are entitled
to additional protection through specialized statutes
delineating tribal rights.
Indians constitute less than one-half of one percent of
the U.S. population and are widely disbursed throughout the
country. Hence, they are not a particularly effective
political force. Therefore, historically Indians have
depended greatly on their unique legal status to protect
them from the erosion of their rights by non-Indian private
interests and state and local government.
It is paradoxical that classic civil rights arguments
on equal protection are often invoked by non-Indians in this
country as a means of limiting the implementation of Indian
rights. Some non-Indians maintain that the accordance of
tribal rights by the Federal Government is tantamount to
racial discrimination against non-Indians. Actually, the
U.S. Government entered into a trust relationship with the
separate tribes in acknowledgement NOT of their racial
distinctness, but of their political status as sovereign
nations.
ROLE OF THE JUSTICE DEPARTMENT
The Department of Justice has the responsibility to
litigate Indian interests in the courts. Two sections of the
Justice Department fulfill these functions: the Office of
Indian Rights of the Civil Rights Division and the Indian
Resources Section of the Lands Division.
The Office of Indian Rights was established in 1974 to
enforce all federal civil rights provisions as they apply to
Native Americans as well as the provisions of the Indian
Civil Rights Act of 1968. This office was created as a
result of a study of the Civil Rights Division which found
that racial discrimination was a significant contributing
factor to the social and economic problems faced by American
Indians. Since its establishment, the Office of Indian
Rights has engaged in litigation involving voting rights
cases, discrimination-cases concerning access to state and
local services, and improvement of conditions in detention
facilities with predominantly Indian inmates.
The Indian Resources Section of the Lands Division is
responsible for Indian-related, non-civil rights litigation
such as lands, natural resources, tribal government and
treaty rights issues.
TRIBAL INTEREST LAW FIRMS
To help defend their rights, Indians themselves have
established tribal interest law firms, such as the Native
American Rights Fund (NARF) founded in 1970. These
organizations supplement the work of the Justice Department,
which Indians assert has inadequately enforced and protected
their rights. Furthermore, Indians assert that conflicts of
interest arise within various departments with divergent
agencies' perspectives on Indian interests. For example,
disputes over land and resources in Indian country sometimes
bring into play the BIA, the Bureau of Land Management, and
the Fish and Wildlife Service of the Interior Department.
Moreover, in cases where there are no direct conflicts of
interest, Indians assert that political factors and the
personal biases of Justice Department functionaries against
taking the Indian side in disputes hinder the enforcement of
Indian rights.
LAW ENFORCEMENT ON INDIAN RESERVATIONS
Four law enforcement agencies have jurisdiction on
Indian reservations: the FBI investigates, and the U.S.
Attorney prosecutes, violations of federal law that are
designated to be Major Crimes. (murder, kidnapping, rape and
11 other serious crimes); BIA police and tribal police are
responsible for policing, investigating minor crimes, and
maintaining law and order on a day-to-day basis; and, state
police have authority in situations when both the offender
and the victim are non-Indians.
The degree of confidence Indians have in the criminal
justice system varies from reservation to reservation and
from state to state. Indians complain that some U.S.
Attorneys have not established effective prosecutorial
guidelines for Major Crimes offenses, causing delays in
processing cases. BIA police, tribal police and federal
investigators often duplicate investigative work. On some
reservations, law enforcement and court facilities are
inadequate and tribal police and tribal judges are
insufficiently trained. Some of the non-Indian law
enforcement and prosecutorial personnel that operate on
reservations are not sensitive to Indian customs and needs.
The U.S. Government is aware that these factors tend to
shake Indian confidence in the criminal justice system, and
is working to increase the effectiveness of police and
prosecutors in Indian country. Much work remains to be done,
however.
ALLEGATIONS OF POLICE MISCONDUCT
Over the years, mutual resentments have built up
between Indians and various governmental authorities. As
Indian people have become more assertive, and sometimes
militant, in demanding their rights, these resentments have
increased. Racist statements and actions of some authorities
have cause many Indian people to allege that they cannot
receive fair trials and that certain Indian activists are
now in prison not because of the crimes they have committed
but because of their political activism.
Domestic groups have charged -- and some CSCE
signatories, the USSR in particular, have echoed these
charges -- that law enforcement officials have engaged in
systematic harassment, surveillance and other extra-legal
activity against Indian activists. These critics further
assert that leaders of the American Indian Movement (AIM),
such as Russell Means, Dennis Banks and Leonard Peltier, are
examples of activists who have ended up as political
prisoners. (Further information on Means and certain other
activists is contained in the section on Alleged Political
Prisoners). Critics charge that police and prosecutors
increased their alleged harassment of AIM leaders and other
activist Indians following the widely-publicized 1973 armed
takeover of Wounded Knee, South Dakota, by Indian militants.
The occupation of Wounded Knee produced a complicated
situation involving several law enforcement agencies,
including tribal police from Pine Ridge Reservation. When
such controversial confrontations occur, the potential for
conflict and misunderstanding is considerably heightened.
JUDICIAL DECISIONS AND TRENDS, 1975-1979
Trends in the courts must be reviewed within the
context of the three judicial systems that apply. The
federal courts, Indian courts and state courts are distinct
systems, deriving their powers from separate authority and
retaining their own peculiar jurisdictions to try to punish
crimes by or against Indians and to determine the nature and
extent of Indian treaty and other federally reserved rights.
The trend in the decisions of these systems is an
effort to clarify which court system has jurisdiction over a
cause of action under the circumstances. Particularly in
this decade, these court systems, with the federal courts in
the lead, are defining where, when and over whom Indian
tribes or states have jurisdiction, and which governmental
system has jurisdiction to act with respect to Indian
boundaries, Indian resources, tribal members and non-
members, and with respect to who can control the exercise of
tribal rights off-reservation.
The present activity of the federal courts and their
increasing deference to tribal courts and tribal authorities
tend to support the view that the Indian policy of the
United States is designed to give wide latitude to Indian
tribes in the exercise of self-government. This appears to
be particularly true when the principal tribal activities
are in the areas of controlling their citizenry on the
reservation and asserting governmental taxing and regulatory
control over Indians and Indian property. There seems to be
a tendency by the courts to avoid strong statements of
Indian self-government only where the property or the
reservation is largely out of Indian control. The courts
also receive policy guidance from Congress and from the
executive branch in these areas, as they interpret the law
and review the actions of the Congress and the Executive
Branch to assure compliance with the U.S. Constitution.
A telling measure of the real successes Indians have
scored in the courts in defense of their rights was seen,
oddly enough, in the proliferation of "backlash" bills that
were put before the 95th Congress. By means of these bills,
anti-Indian political interests hoped to weaken the solid
legal basis upon which Indian rights cases were being
successfully won in the courts. These lobbying groups pushed
Congress to terminate the trust responsibility altogether,
abolish the reservations, institute state regulation of
hunting and fishing on Indian lands and deny due process
rights of tribes pressing claims in court. This attempt so
alarmed Indian people that many undertook an arduous
journey, "The Longest Walk," from California to Washington,
D.C. in the summer of 1978 to voice their concern to the
Congress.
For a variety of reasons, none of the "backlash" bills
was ever heard of or referred out of committee, expiring
with the adjournment of the 95th Congress. However, bills of
a similar nature are pending before the present Congress and
are still the focus of much concern for Indian people.
Should these bills be enacted into law, the cause of Indian
rights in the U.S. would suffer a serious setback.
POWER OF THE CONGRESS
Federal courts have consistently ruled that Congress
has the plenary authority to fix the terms of the U.S.
Government's trust relationship with the Indians. Indians
assert, given the historical precedent, that the breadth of
this Congressional plenary power to legislate in their
regard carries with it the potential danger that such power
will be misused to deprive Indians of their rights, since
Indians are not as strong in numbers as the non-Indian
voting public in the states.
It is not the existence of the power that should be the
focus of the discussion but how and when it is exercised.
More than one hundred measures expressly affecting American
Indian and other Native peoples have been enacted since
1975. The 95th Congress alone created 79 new laws pertaining
to Native Americans. While some of these laws affect only
one or a few tribes or individual Indians, many
Congressional acts during the past four years represent
policy statements of major significance affecting Native
governments and people in the U.S. Two of these acts -- one
establishing the American Indian Policy Review Commission
and the other setting forth an Indian self-determination
operating policy -- were passed in the first days of 1975
(22). Subsequently, the Congress passed important
legislation addressing basic human rights and needs of
Indian people in the areas of health, education, child
welfare, religious freedom, economic development, land and
natural resources and tribal recognition and restoration.
Legislation enacted during this period follows a consistent
policy line repudiating terminationist and assimilationist
policies of the 1950's, removing barriers to Indian self-
determination and local level control and enhancing the
basic quality of life of Native American peoples.
22. The Congress created the American Indian Policy Review
Commission in 1975 and mandated it to conduct a
"comprehensive review of the historical and legal
developments underlying the Indians' unique relationship
with the Federal Government in order to determine the
nature and scope of necessary revisions in the
formulation of policies and programs for the benefit of
Indians." The Commission reported its findings and
recommendations to Congress on May 17, 1977 and expired
on June 30, 1977.
Balanced against this progress, the House Interior
Committee, in January of 1979, voted to abolish its Indian
Affairs Subcommittee, which can be credited with drafting
and reporting legislation affecting Indian interests in
recent Congresses. As a result, Indian legislation will now
be one of the many contending areas of legislative
responsibility of the full Interior Committee, increasing
the likelihood that fewer Members of Congress will be well
versed in Indian matters. The Select Committee on Indian
Affairs of the Senate, established in the 95th Congress
primarily to consider over 200 progressive legislative
recommendations made by the American Indian Policy Review
Commission, will continue to function in the 96th Congress.
These recommendations, however, remain to be considered
within this Committee, and the Committee's existence in the
97th Congress is uncertain.
SOCIO-ECONOMIC PROFILE
Under Principle VII, the U.S. has pledged to promote
and encourage the economic and social rights of its people.
Often, the U.S. has been called to task by Indians, Indian
advocates, and other CSCE countries for failing to act to
improve the socio-economic situation of Indians.
Native Americans, on the average, have the lowest per
capita income, the highest unemployment rate, the lowest
level of educational attainment, the shortest lives, the
worst health and housing conditions and the highest suicide
rate in the United States. The poverty among Indian families
is nearly three times greater than the rate for non-Indian
families, and Native people collectively rank at the bottom
of virtually every social and economic statistical
indicator.
When the federal government negotiated treaties with
various tribes, it promised them that the Indian people
would be provided a permanent and economically viable and
self-sustaining homeland, that the reservations would be
made to bloom, that the Federal Government would assist the
tribes in transforming their way of life.
The U.S. has acknowledged that it has not yet lived up
to this promise. However, over the past five years important
steps have been taken to improve the situation of American
Indians.
FEDERAL ASSISTANCE PROGRAMS
An overall strategy is just developing to deal with the
problem of Indian poverty, the basis of many other problems.
Native people are citizens of both their tribes and the
United States. As U.S. citizens they are entitled to federal
assistance available to the general public, and, like other
U.S. citizens, Indians may turn to the courts for redress if
they believe they have been denied access to such federal
services.
At the level of local service delivery systems, the
Federal Government has extended recognition to tribal
governments, and the Congress has repeatedly included tribes
PER SE in such programs of general application as General
Revenue Sharing, the Comprehensive Employment and Training
Act and the Joint Funding Simplification Act. Yet, tribal
eligibility for participation in federal domestic assistance
programs to state and local governments is not uniform. In
some instances, program eligibility is defined, in an
apparent oversight, as intended for "state and state
subdivisions," a formulation which seems to exclude tribes.
In other instances, where eligibility provisions do not
specify "state and state subdivisions" only, the provisions
have been incorrectly interpreted by some administrators to
exclude tribal governments.
Congress has created a number of programs which are
intended specifically for Indians, both as tribes and
individuals. These programs generally are in fulfillment of
the Federal Government's trust responsibility and many of
them are derived from specific treaty obligations of the
U.S.
TRIBAL RECOGNITION AND RESTORATION LEGISLATION
The past policy of terminating Federal-tribal status
was intended by the Congress to assist Indian people into
the mainstream by severing all federal ties and ending
federal services in one cash payment. The consequences of
terminations have proven tragic for the Indian people and
against the national interest. Congress repudiated this
practice when it examined the case of the Menominee Tribe of
Wisconsin and restored their political relationship with the
United States in 1973. Since 1975, the Congress has
recognized or restored to recognized status six tribes,
making members eligible to benefit from special federal
programs that are designed to assist Indian tribes.
FEDERAL ACKNOWLEDGEMENT PROJECT
The Federal Acknowledgement Project was undertaken
because there may be Indian tribal groups which should but
do not receive the benefit of the special federal-Indian
relationship. In September of 1978, the Secretary of the
Interior published final rules setting criteria for
determining whether such groups qualify for this special
relationship with the U.S. Government. These criteria were
developed after extensive consultation with Indian groups
and became effective October 2, 1978.
At the present time, there are nearly 500 governmental
entities, including Indian tribes, pueblos, bands,
rancherias, communities and Alaska Native villages and
corporations which are recognized as eligible for BIA trust
services. Thus far, more than 50 other Indian groups have
petitioned the Secretary for acknowledgement of their status
as Indian tribes.
THE ROLE OF THE INDIAN HEALTH SERVICE (23)
The Indian Health Service (IHS) of the Department of
Health, Education, and Welfare is the primary federal health
resource for approximately 760,000 Indians and Alaska Native
people living on or near Federal Indian reservations or in
traditional Indian country such as Oklahoma and Alaska. It
provides a comprehensive program of preventive, curative,
rehabilitative and environmental services. The Service also
provides limited assistance to approximately 274,000 of the
507,000 urban Indians to enable them to gain access to those
community health resources available to them in areas where
they reside.
23. The information found in this portion of the American
Indian section has been provided by the Indian Health
Service of the Department of Health, Education and
Welfare.
Indian health advisory boards have played an important
role in developing IHS policy and allocating resources.
Tribes also have been actively involved in program
implementation. As a result of new laws enacted in the last
five years, the number of tribes managing health services
has increased. The scope of tribally managed activities is
broad, ranging from the provision of outreach services in
the community to the planning, construction, staffing and
operation of health care facilities.
The Indian Health Care Improvement Act, which
authorizes higher resource levels for a seven-year period,
beginning in Fiscal Year 1978, seeks to increase the number
of Indian health professionals for Indian communities. It
also authorizes IHS to set up programs with Indian urban
organizations to improve Indians' access to health services.
INDIAN HEALTH DEVELOPMENTS
The health of Indian people has improved significantly.
This gain is due, in part, to the overall expansion of
health service and the construction of better health care
and sanitation facilities. Since 1955, hospital admissions
have more than doubled; outpatient visits increased seven-
fold and dental services six times. Partly as a result of
the increased use of hospitals, the infant mortality rate
has been reduced by 74 percent and the maternal death rate
by 91 percent. During the same period, the death rate for
influenza and pneumonia dropped 65 percent; certain diseases
of early infancy, 72 percent. Tuberculosis, once the great
scourge of the Indians, in 1955 struck eight out of every
1,000; now it strikes fewer than one. An Indian child born
today has a life expectancy of 65.1 years, an increase of
5.1 years over a child born in 1950. Progress and
improvements do not mean that the U.S. has succeeded in
raising the health status of Indians to the high level that
it seeks. Further efforts will be required.
STERILIZATION
An allegation persistently raised by some American
Indians and echoed by several CSCE states is that the U.S.
Government, under IHS auspices, is coercing large numbers of
Indian women to be sterilized. This alleged governmental
sterilization policy is perceived as a manifestation of a
far more monstrous governmental policy -- that of genocide.
Those who make this very serious allegation often cite
statistics from a 1976 U.S. Government Accounting Office
(GAO) report regarding the IHS.
IHS attributes these allegations to misinterpretations
of the GAO report, and says there are no suggestions in the
report that the IHS has undertaken any activities to
sterilize Indians without their consent. IHS states that is
has yet to receive a single documented case of coerced
sterilization or failure to obtain informed consent for
performance of a procedure that could result in
sterilization. However, IHS acknowledges that the GAO study
cites procedural deficiencies in obtaining informed consent.
After these deficiencies were detected by GAO, IHS initiated
several actions to correct them. Furthermore, HEW drew up
new sterilization regulations and improved sterilization
reporting and monitoring requirements, which are now being
carried out by IHS and other health services. IHS
categorically denies that its aim is to control population
size in any way, and insists that its goal is to enhance and
expand the life of the Indian and Alaska Native. Statistics
show that the Indian population served by IHS has twice the
birth rate and over three times the population growth rate
of the U.S. population as a whole.
ECONOMIC DEVELOPMENT EFFORTS
Many reservation lands are rich in natural resources,
which can be used by the tribes to lift themselves out of
poverty. Some tribes are actively pursuing economic self-
reliance through the development of their oil, gas, coal,
uranium and other energy resources. Other tribes have not
made final decisions regarding development of their
resources and still others have decided against development
at this time. If there is to be development, it is a
function of the Federal Government to assure that the best
and most economically and environmentally sound arrangements
are made. In addition, the government is to provide
technical and financial assistance to ensure that the tribal
decisions will be based on an expert and experienced
evaluation of the technical and factual data.
Help has been provided from the White House or federal
agencies when tribes have requested it. In 1977, five
federal agencies gave the member-tribes of the Council of
Energy Resource Tribes more than two million dollars for
this endeavor. Two agencies, the Community Services
Administration and the Administration for Native Americans,
have ear-marked their funding for a human needs assessment
of the impact of energy development on the affected Indian
people. And, the Department of the Interior has an ongoing
responsibility to assert the Indian interest in resource
protection and development of related policies.
LEGISLATIVE ACTIONS
During 1977 and 1978, Congress passed about 50 bills
which expressly benefit tribes and individual Indians. The
most hotly debated Indian issues in the Congress during 1977
and 1978 were Indian water rights in the Southwest, Indian
fishing rights in the Northwest and Indian land rights in
the East. Despite controversy, the 95th Congress passed
mutual-consent agreements achieving settlement of a water
rights case in Arizona and the first of the Eastern Indian
land claims cases in Rhode Island. By an Act of July of
1978, the Ak-Chin Indian Community's longstanding water
claims were settled, enabling the tribe to continue their
profitable tribal agriculture programs, thus avoiding years
of economic hardship in litigation.
Similarly, the Rhode Island Indian Claims Settlement
Act of September of 1978, sponsored and vigorously supported
by CSCE Commission Co-chairman Claiborne Pell, ratified a
negotiated settlement of to the case brought by the
Narragansett Indians under the Indian Non-Intercourse Act of
1790. The Act cleared title to acreage in the state
authorizing federal funds to reimburse the tribe for lands
lost and to purchase lands. On August 20, 1979, the
Administration and the Cayuga Nation of New York arrived at
a land claim settlement that will involve the establishment
of a trust-development fund for the tribe. The settlement
will soon be sent to Congress for ratification.
FEDERAL INVOLVEMENT IN LAND AND RESOURCES
TRIBAL LAND ACQUISITION ACTS
Recognizing that the futures of Indian tribal
governments and tribal economies are largely dependent on a
sufficient land base to support their populations, it is a
continuing United States policy to assist tribes with land
acquisitions and land consolidation programs. During the
years from 1975 to 1978, Congressional legislation has
authorized acquisition by tribal groups of about 400,000
additional acres of land, assisting some 30 tribes to expand
their land base.
EASTERN LAND CLAIMS
The issue of land claims brought by Indians against
states, municipalities and private landowners in federal
courts in the eastern U.S. has received national attention.
The claims are against states, cities and individuals,
rather than against the Federal Government; they are based
on the allegation that the Federal Government did not
approve transfer of these lands by Indians to non-Indians,
which is required by a statute first enacted in 1790 as the
Indian Trade and Intercourse Act. Following the ratification
of a mutual consent agreement by the 95th Congress, the
first Indian land claims court settlement was reached
between the state of Rhode Island and the Narragansett
tribe. In May of 1979, the state returned 1,800 acres to the
tribe. A similar approach will facilitate the settlement of
the claims of some 3,000 Indians comprising the
Passamaquoddy and Penobscot tribes in Maine to a land in
that state.
Now that the Narragansett/Rhode Island settlement is
concluded (and a major step toward resolution of the Maine
case has been taken) other Indian land claims may be
examined in an atmosphere conducive to fruitful negotiation.
WATER POLICY
Conflicts over water rights in the Southwest constitute
some of the most intense disputes between the states and
Indians. Many are the subject of ongoing litigation in both
state and federal court. For years, the states pursued a
policy of homesteading on arid western lands, while the
Federal Government was designing and constructing water
projects with little regard to the needs of Indian
communities or to the potential negative impact such
projects could have on the ecological condition of
reservation lands. The U.S. Supreme Court acknowledged
Indian water rights early in this century in a decision
known as the WINTERS DOCTRINE.
In his water policy message on June 17, 1978, President
Carter announced a new water policy. Implementation of the
policy is to be conducted in consultation with the Indian
tribes. The Presidential directive calls for negotiations
whenever possible to resolve conflicting water claims.
Should negotiations fail, litigation in federal, as opposed
to state, courts is favored.
FISHING DISPUTES
Over the past five years, Indian fishing has been the
subject of serious public and political controversy. The
Federal Government -- despite tremendous opposition from
non-Indian communities -- has used its authority to assert
the full range of fishing rights reserved to the tribes when
the reservations were created. The government also
recognizes the need to protect the resource. The government
recognizes the right of these tribes to fish for commercial,
as well as for ceremonial and subsistence purposes.
The United States Government has actively sought to
protect Indian fisheries from environmental degradation,
from the potential negative consequences of non-Indian
diversion of waterways for agricultural and industrial
purposes, from excessive non-Indian commercial and sport
fishing, and from other dangers to the resource. For
example, in the State of California, the government is
addressing these problems as it attempts to put the Hoopa
and Yurok tribes' fishery resource in good order for their
future use and self-management. As yet, the United States
has avoided going to court to determine the extent of the
tribal fishery right. The California Department of Natural
Resources is taking a similarly positive approach, working
with the federal agencies and the Indians to improve the
fish stock and to lay a basis for coordinated
tribal/state/federal management of the resource in the
future.
However, when litigation cannot be avoided, the Federal
Government often assumes trustee responsibility for the
defense of Indian treaty rights in the courts. The Federal
Government's commitment to protect Indian rights -- even if
this would mean confrontation with a state -- is exemplified
by an emotionally charged fishing rights dispute in
Washington State.
In 1974, a landmark court decision (U.S. v. Washington)
was announced, affirming the treaty fishing rights of 19
Northwest Indian tribes. The decision declared these tribes
entitled to catch up to half the harvestable fish and to
participate jointly with the State of Washington in the
management of their fishery resources. State officials,
institutions, courts and non-Indian fishers refused to
accept and abide by the decision and court orders.
Finally, in the middle of the 1977 fishing season, the
federal courts, at the recommendation of the Administration,
were forced to take over management of the fishery. Rising
to the challenge in the face of massive illegal fishing by
non-Indians, strong public emotion and legal obstacles in
the State, the federal agencies pooled their resources to
aid the federal court in managing the fishery. On July 2,
1979, the Supreme Court ruled that Indian tribes in the
Northwest are entitled by treaty to half the harvestable
catch, warning State authorities to comply.
CULTURE AND EDUCATION
Until a few years ago, many policy makers viewed
education as a key to Indian assimilation and often regarded
Indian culture and history as impediments to the full
participation of Indians in American life. The excesses of
this period resulted in great damage to Indian people,
producing statistics of low educational achievement and a
host of related problems, including the disruption of Indian
families and cultural and tribal life styles.
The older policies were phased out in the early 1970's
and were replaced with the more enlightened policy of today.
Under the current policy, assimilation is a choice for the
individual Indian to make. Indian history and culture are
viewed as positive assets, rather than negative impediments
to Indian adjustment to contemporary American life, and the
control of Indian education is in the hands of the people
most directly affected by the education being provided, the
Indian tribes and Indian people.
The intent of this policy is not only to increase
Indian participation and involvement in the educational
process but also to improve the quality of Indian education
through the development of programs designed to meet the
unique educational needs of Indian tribes and communities.
THE INDIAN CHILD WELFARE ACT
In response to valid criticism that it has not
adequately been protecting the integrity of the Indian
family and community over the years, Congress passed the
Indian Child Welfare Act of 1978. The U.S. has recognized
that Indian children lost ties with their extended families
and cultural heritage through adoption into non-Indian
families or placement in non-Indian foster homes and
institutions.
The Indian Child Welfare Act eliminates unwarranted
Indian parent-child separation; it ends discrimination that
has prevented Indian parents from qualifying as foster or
adoptive families; and it provides Indian communities with
comprehensive child-welfare and family service programs.
THE AMERICAN INDIAN RELIGIOUS FREEDOM ACT
The religious practices of American Indians are an
integral part of their culture, tradition and heritage and
form the basis of Indian identity and value systems. To
guarantee Indian rights in this regard, the American Indian
Religious Freedom Act was signed into law in August of 1978.
The Act proclaims that it is the policy of the U.S. to
protect and preserve for American Indians their inherent
right of freedom to believe, express and exercise their
traditional religions, including, but not limited to, access
to sites, use and possession of sacred objects and the
freedom to worship through ceremonies and traditional rites.
CONCLUSION
A review of U.S. policies and practices with respect to
Native Americans shows that they are neither as deplorable
as sometimes alleged, nor as successful as one might hope.
In some areas, federal policies and programs have failed to
achieve permanent solutions to the serious problems facing
tribes and their citizenry. In other areas, appropriate
remedies have achieved notable progress in meeting the
unique needs of Native American governments and individuals.
The efforts to find solutions to Indian problems is made
more difficult by the highly complex governmental, economic,
social and political context surrounding Indian life. The
important consideration, especially in terms of U.S.
obligations under the Helsinki Final Act, is that serious
efforts are being made.
The funding for Indian programs has risen dramatically
in the past 20 years, and the educational, social and
economic conditions are improving. In line with the
government policy of putting Indian people into determinate
roles, Indians are managing their own resources, controlling
their own assets and administering their own programs to a
greater degree than in the past.
Resolution of problems in the future will require
continued and intensified cooperation between concerned
government agencies and the Native peoples themselves. More
opportunities should be provided for Indians to share in the
formulation of federal policy and the development of federal
programs that will significantly affect their interests.
The growing cooperation between the Federal Government
and Indians in defense of their civil rights and tribal
rights to land, resources and self-government is sometimes
perceived as a threat by some segments of the American
population, who argue that the unique legal status of
American Indians constitutes special, preferential treatment
of them by the U.S. Government. However, in general, public
reaction to the new policies of greater equity toward
Indians has been favorable. The BIA has established programs
to assist the tribes and Native peoples to better present
their diverse histories, cultures and goals to other
Americans through the media, school curricula, and other
channels of communication. In addition, various citizens
groups comprised of Indians and non-Indians alike, such as
the American Friends Service Committee, are helping to
educate the public about the respective rights of Indians
and their non-Indian neighbors.
To further fulfill U.S. obligations under the Helsinki
accords regarding the rights of American Indians, the
Commission believes the U.S. Government should energetically
pursue the more equitable policy lines established in recent
years and should continue to help increase public awareness
of the unique nature of American Indian rights.
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