Terms You May Have Heard
Allotment refers to a piece of land legally transferred by the government to a North American Indian, as part of the division of tribally held land. The U.S. federal government began the policy of allotting Indian land as early as 1798, and several treaties with Indian tribes included provisions that stated land would be divided among their individual members.
Also known as residential schools, Indian Boarding Schools were established to assimilate Native American children into non-Native culture. In some cases, children were forcibly removed from their homes.
Bureau of Indian Affairs
Established in 1824, the Bureau of Indian Affairs is a United States federal agency responsible for the management of tribal land held in trust by the United Sates for Native Americans.
Burke Act (1906)
The Forced Fee Patenting Act (more commonly known as the Burke Act) was passed to amend the Dawes Act. It required federal Indian agents — Bureau of Indian Affairs officials who were tasked with oversight of tribes — to determine whether individuals were "competent and capable" before giving them fee simple patents to their allotted land.
Chief Joseph the Younger of the Nez Perce Indians is a statesman known for leading hundreds of people over hundreds of miles while being pursued by 2000 U.S. soldiers, and for advocating equal rights.
Clam gardens are an ancient form of aquaculture which fostered productive clam beds and were claimed as property by those who invested in the productivity. They are an example of ownership of the marine resources harvested there.
Colonial Indigenous Economies
Colonial indigenous economies are the economies of reservation communities where persistent colonial policies continue to hamper entrepreneurship and economic growth.
Colonization refers to any kind of external control of land, its components, and its inhabitants by a central system of power. In Indian Country, colonialism is ongoing with persistent colonial policies that curtail meaningful tribal sovereignty, require federal approval for the use of land and other resource, and constrain and economic freedom in reservation communities.
Dawes Act (1887)
The General Allotment Act of 1887 (more commonly known as the Dawes Act) gave the President of the United States the power to divide communally-held tribal land into allotments for Native American individuals. This act gave the federal government even greater control over Native Americans, who were given land allotments in exchange for U.S. citizenship and the abandonment of some forms of tribal institutions and self-governing practices. The act resulted in the transfer of millions of acres of reservation lands to non-native individuals.
Fee Simple Land
Fee simple land is property owned without condition, limitations, or restrictions. Fee simple owners hold title to their land and are free to make land-use decisions without federal oversight.
In the context of tribal governments, fiscal power is the authority to raise revenue and the capacity to provide infrastructure like roads and utilities; and services such as education, medical care, and cultural preservation.
A fishing weir is constructed to span part or all of a spawning stream and designed to trap or funnel fish. Those who invested in constructing and maintaining the weir held ownership claims to its use.
Fractionation describes ownership by several individuals. Reservation land that was allotted to individual Indian heads of households and held in trust by the federal government could not be passed to heirs by will and therefore was inherited in equal shares by all heirs. Over several generations this resulted in multiple owners of allotted land, with the number of heirs in the hundreds or even thousands. Not surprisingly, fractionation makes it difficult to come to agreement about land use.
Indian Country includes reservation lands, land owned by non-Indians, as well as towns incorporated by non-Indians if they are within the boundaries of an Indian reservation.
Indian country includes:
1. Land within the limits of an Indian reservation under the jurisdiction of the United States government;
2. Dependent Indian communities, such as the New Mexico Pueblos; and
3. Indian allotments still in trust, whether they are located within reservations or not.
Federal Indian law is established by the federal court system and the United States Congress. As legal scholar Lance Morgan explains, federal Indian law restricts and limits tribal authority and is “at least partially grounded in racist principles, paternalism, and economic exploitation.” Federal Indian law is upheld by federal courts. Federal Indian law is distinct from tribal law, which is the law tribes develop and apply to their members and territories.
Indian Self Determination and Education Assistance Act (1975)
The Indian Self-Determination and Education Assistance Act of 1975 allowed certain federal agencies to enter into contracts with, and make direct grants to federally recognized Indian tribes. Though the act was intended to give tribes greater authority and control over their welfare, in practice these grants have imposed the federal government’s spending priorities on tribes. Once contracted, tribes cannot reallocate funds to respond to the shifting needs of their communities.
Indian Reorganization Act (1934)
Also called the Indian New Deal, the Indian Reorganization Act (or Wheeler-Howard Act) was a piece of U.S. federal legislation which slowed the practice of the U.S. government redistributing communal tribal lands to individuals while simultaneously reorganizing tribal governing systems. The act also led to further federal oversight from the Bureau of Indian Affairs, as they began to assume approval power over Native American cultural activities, constitutions, and resource development.
Jurisdiction, a question of territory and authority, is the power to make rules and decisions about matters depending on the people, place, and resources in question.
Land title is certification of ownership, the right to determine how a resource is used and the right to exchange resources. Property rights may be held by individuals, families, groups, or tribal governments.
The Marshall Trilogy (1823-1832)
Over the course of a decade in the early 1800s, three Supreme Court decisions affirmed the legal and political standing of Native American nations. These decisions are commonly referred to as the Marshall Trilogy.
· Johnson v. M'Intosh (1823): In 1823, the Supreme Court case Johnson v. McIntosh ruled that private citizens could not purchase lands from Native Americans, therefore asserting that Native Americans did not own their tribal land. Further, restricting Native American tribes’ ability to sell land to private parties enabled the U.S. government to acquire tribal land at the lowest possible cost.
· Cherokee Nation v. Georgia (1831): In 1831, Cherokee Nation v. Georgia ruled that it could not evaluate the Cherokee Nation’s case against the state of Georgia because of its status as a “domestic, dependent nation.” It established the legal standing of Native American nations and held that their dependency upon the United States Government was like that of a "ward to its guardian.”
· Worcester v. Georgia (1832): In 1832, Worcester v. Georgia ruled that the state of Georgia did have the authority to regulate the intercourse between citizens of its state and members of the Cherokee Nation. This decision laid out the legal relationship between federal government, the state, and tribes. The ruling effectively stated that the federal government maintained the authority to deal with Native American nations.
Old Indigenous Economies
Old indigenous economies are the traditional systems of production and trade that allowed indigenous peoples to innovate and prosper before European contact.
Ownership claims establish exclusive rights to determine how a resource is used or exchanged. Ownership claims are often called property rights and may be held by individuals, families, groups, or governments.
A potlatch is a traditional winter gathering bringing together members of different Northwest Coast tribes for feasting and dancing. Potlatching, which also involved significant transfers of wealth, evolved as a way to secure property rights to salmon streams.
The right to determine how a resource is used and the right to exchange resources. Property rights may be held by individuals, families, groups, or tribal governments.
Renewed Indigenous Economies
Renewed indigenous economies are the economies of reservation communities that have overcome colonial obstacles to participate in modern, market economies in a manner consistent with their unique customs and culture.
A reservation is an area of land “reserved” by or for an Indian band, village, or tribe (tribes) to live on and use. Reservations were created by treaty, by congressional legislation, or by executive order. Since 1934, the Secretary of the Interior has had the responsibility of establishing new reservations or adding land to existing reservations.
Rule of Law
The rule of law is another way of saying that laws, as they are written, are applied equally to everyone without regard for wealth, political power, or status. If an individual or company breaks the law, they face the consequences. It is often taken for granted in countries with a strong rule of law that people respect the rules. But that isn’t the case everywhere. In Indian Country, where the rule of law is not as prevalent, the law as it is written is applied unequally.
Self-Governance and Self-Determination
Beginning in 1970, the United States began enacting legal reforms to allow tribes to reassert their sovereignty and reclaim jurisdiction over their lands. In July 1970 President Nixon delivered a Special Message on Indian Affairs, outlining a policy for Indian self-determination. In 1975, Congress passed the Indian Self-Determination and Education Assistance Act (also called Public Law 638) which outlined a path for tribes to reassert their sovereignty and regain control over the provision of goods and services. Public Law 638 ensured the federal government would continue to meet its treaty and trust obligations of providing education, medical care, and housing, but allowed tribes to take over the management of these services.
Sovereignty is the right and capacity to govern. As historian Pekka Hämäläinen defines it, “sovereignty in an Indigenous context can be best understood as a self-identified group’s right and capacity to govern itself against foreign powers that claim superior authority over it.” Hämäläinen adds a crucial caveat to his definition that explains why Indian Nation sovereignty as been elusive. He asserts that sovereignty “has to be recognized by others to be effective.” For this reason, sovereignty is, according to historian James Sheehan (quoted by Hämäläinen), “the ongoing process of making, unmaking, and revising sovereign claims.”
Banned from 1883 - 1934, by the Bureau of Indian Affairs Code of Indian Offenses, the Sun Dance is annual ceremony of many Plains peoples involving several days of fasting and dancing. Participation in the Sun Dance reinforces the organization of the tribe and, along with other ceremonies, is a means of passing along tribal governance structures and tribal law.
Termination Era (1940-1968)
The termination era describes the period of time when the U.S. government ceased to recognize the sovereignty (or nationhood) of several tribes.
Tribal lands are fee and trust lands owned by a tribe, and all lands over which a tribe has authority.
Tribal Law refers to the body of law created by each tribe to govern itself and to expand and flex its sovereignty. Tribal law is upheld by tribal courts. Tribal law is distinct from federal Indian law. While federal Indian law refers to laws passed by the U.S. Congress concerning the relationship between federal, state, and tribal governments, tribal law is the law tribes develop and apply to their members and territories.
Tribal sovereignty is the right for tribes to make their own laws and be governed by them, as well as have authority over their people and territory. It predates the establishment of the Federal government and the U.S. Constitution. Recognition of tribal sovereignty would allow tribes to determine their own governance structures, pass their own laws, and enforce them through tribal police departments and tribal courts. Building blocks for tribal sovereignty include secure land title, clear jurisdiction, fiscal power, and the freedom to govern consistent with tradition.
Trust land is property held by one party for the benefit of another party. In this context, land is owned either by an individual Indian or a tribe, the title to which is held in trust by the federal government.
Under trusteeship, the land is, for all intents and purposes, owned by the federal government to be managed for the benefit of Native Americans. Under trusteeship, Indian land use is regulated by the Bureau of Indian Affairs.
A ward is a person who is legally considered incapable of managing his or her affairs and over whom a guardian is appointed. A ward may retain legal title to his or her land, but he or she may not sign any contracts regarding the property.
Like “red tape,” white tape is a term used to describe the bureaucratic challenges Native Americans face in dealing with federal rules and regulations that change again and again. The term was coined by former chairman of the Coushatta Tribe, Ernest Sickey.