Indian and Indigenous Peoples Law
Native Americans, also called American Indians or Indians, are the indigenous peoples who, before colonization, first inhabited the territory now encompassed by the United States. Today, their descendants make up many distinct tribes or nations, many of which still exist as political communities. Some of these communities are officially recognized by the federal government or the government of the state in which they live and have been granted specific economic, political, social, and cultural rights. State, federal, and tribal laws govern these communities, called nations or peoples by their members.
Indian or Indigenous Peoples law in the United States encompasses a wide variety of issues. The main issues concern control over land and tribal sovereignty, or Native Americans' right to self-determination. Other statutes address the protection of tribal natural resources, sacred sites, cultural property, religious freedom, cultural history and practices, civil and economic rights.
Westward expansion of the United States in the 19th century gradually forced large numbers of Native Americans to move further west. The federal Indian Removal Act of 1830 authorized the President to conduct treaties to exchange Native American land east of the Mississippi River for lands west of the river. Tremendous pressure was put on Native American leaders to agree to these treaties, and although many Indians moved west, they made long, hard journeys under duress. Native Americans lost their land, homes, and many members of their tribes along the way. An estimated 4,000 Cherokee Indians died from disease on what became known as the Trail of Tears, when 17,000 Cherokees were forced westward by federal troops enforcing the Treaty of New Echota.
Conflicts broke out between Indian nations and U.S. troops as a result of the Indian removal policy, and on January 31, 1876, the United States government ordered all remaining Native Americans to move into reservations or reserves. Later, the General Allotment Act of 1887, called the Dawes Act, authorized the division of Indian tribal land into allotments for each Native American, replacing the tribal system of common property. The Dawes Act had disastrous effects on Indian tribal identity and culture, and Native Americans lost a lot of land to non-members living in tribal areas.
The Indian Reorganization Act of 1934, also known as the Wheeler-Howard Act, reversed the Dawes Act's privatization of common holdings and a return to tribal self-government. The Act also restored to Native Americans the management of their land and attempted to provide economic benefits for American Indians. Tribes regained over two million acres of land in the first 20 years after passage of the Act, although relocation policies resumed when additional provisions of the Act were implemented and American Indians continued to lose their land.
Native Americans continue to struggle to hold onto and reclaim land now held by the federal and state governments as well as private individuals. There are approximately 300 Indian reservations in the U.S. today, though many Native Americans do not live on a reservation.
Over 2.5 million Native Americans reside in the United States. The federal government recognizes 561 tribes, making them eligible for funding and services from the Bureau of Indian Affairs. Indian tribes are considered by federal law to be "domestic, dependent nations." The federal government has a trust responsibility to protect tribal lands, assets, resources and treaty rights. Numerous federal statutes deal with Indian rights and governance, such as the Indian Civil Rights Act of 1968 (also known as the Indian Bill of Rights) and the Indian Self-Determination and Education Assistance Act of 1975.
The U.S. recognizes the right of these tribes to tribal sovereignty and self-government. Federally-recognized tribes have the right to form their own governments and courts, enforce civil and criminal laws, establish membership and tax members, license and regulate activities, and decide their own fates. Limitations on tribal powers of self-government are the same constitutional limits on state sovereignty: Indian Nations do not have the power to make war, engage in foreign relations, or coin money.
An Indian Nation may exist and be recognized by a state without being recognized by the federal government. Courts and legislatures examine such factors as the extent of tribal control over individual lives and activities, the extent of political control exercised over specific territory, and the continuity of the group's history.
Native American religions have frequently conflicted with federal laws. Some laws, such as those protecting endangered species or national parks, have unintentionally caused problems such as denial of access to sacred sites or bans on possession of animal-derived sacred objects, such as eagle feathers and bones, by Native Americans.
The American Indian Religious Freedom Act of 1978 (AIRFA) marked a shift in U.S. policy toward protecting Native American religious freedom. AIRFA acknowledged that Native American's religious freedom had been restricted, and established a policy of protecting the right of Native Americans to believe and practice their traditional religions. It set forth a new federal policy that laws passed for other purposes were not meant to restrict the rights of Native Americans, who would have rights of access to religious sites, use and possession of sacred objects, and freedom to worship through traditional ceremonies and rites. The 1994 amendment to the Act made it legal for Native Americans to use peyote for traditional religious ceremonial purposes.
Congress has also enacted statutes to protect cultural artifacts of American Indians. The Native American Graves Protection and Repatriation Act of 1990 (NAGPRA) allows Native Americans to request the return of human remains and other culturally-sensitive items in the possession of federal agencies, museums or institutions. Many religious artifacts and ancestral remains have been returned to tribes, though many remain in museums and institutions.
NAGPRA also governs the intentional excavation and removal of, unintentional discovery of, and illegal trafficking in Native American human remains and cultural artifacts. Federal agencies that manage land must comply with NAGPRA.
American Indians have attempted to use NAGPRA to protect sacred sites with mixed results. Northern California tribes sued the Forest Service in the 1980s to stop a logging road through a sacred forest and won, but the Supreme Court overturned their victory. But some protections have been granted; for example, at Devil's Tower in Wyoming, the park requests rock climbers not climb in June, when the Lakota hold several ceremonies.
In California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987), the U.S. Supreme Court held that federally-recognized Native American tribes, as sovereign political entities, could operate gaming facilities without being subject to state regulation or jurisdiction. Congress then enacted the 1988 Indian Gaming Regulatory Act (IGRA), which governs how Indian Nations can operate casinos and gaming establishments. The IGRA states Congress' goal to "promote economic development, tribal self-sufficiency and strong tribal government" and the Act definitely promoted tribal economic development: Indian gaming revenues increased from $20 million in 1982 to an approximately $19.4 billion in 2004.
State and federal laws also afford special hunting and fishing rights to Native Americans.