Colonial governments have, over the course of history, often attempted to suppress the religious beliefs and practices of American Indian communities. These governments considered the diverse American Indian religious beliefs to be pagan and felt that only by ending these traditional practices and forcing American Indians to accept Christianity would American Indians be transformed into “civilized” people. The Spaniards outlawed traditional religious practices in 1646, and the U.S. government forbade the practices on reservations in 1883 with the establishment of Henry Teller’s “courts of Indian offenses” (Utter, 1993).
With the spread of the Ghost Dance Religion in the 1890s, attempts to suppress traditional religious practices reached new heights:
Built around a prophesy that the world would return to the state it had enjoyed before the coming of the white man and that Indian ancestors and vanished game would reappear, the religious movement offered hope to a population decimated by disease and starvation and imprisoned on reservations. The government saw the religion as a unifying anti-white practice. In 1890 the army massacred three hundred Sioux, mostly women and children, at Wounded Knee, South Dakota. In 1892 the BIA [Bureau of Indian Affairs] promulgated the Indian Religious Crimes regulation, which made it a crime to engage in any form of Indian dancing or feasting. (Deloria, 1985, p.54)
Swinomish (1991) notes that American Indians were not only fined, but were “actually jailed for such ‘offenses’ as possessing traditional spiritual regalia or participating in a traditional dance.… Indian people who believed in traditional ways were made to feel guilty, primitive and evil” (p.31).
As recently as the 1920s, official policy against traditional religious practices continued, as is expressed by the letter sent by “Commissioner of Indian Affairs Charles Burke … ‘To all Indians.’ Burke urged the Indians to give up ‘dances’ and ‘ceremonies’ voluntarily or he might be forced to ‘issue an order against these useless and harmful performances’” (Utter, 1993, p.90). However, with the passing of the American Indian Religious Freedom Act in 1978, such persecution was prohibited. The act ensures that state and federal agencies will no longer infringe upon the first amendment rights of American Indians to exercise traditional religious practices.
The Legal and Political Status of American Indians
and Tribal Governments
Many American Indian tribes have reserved both land and a unique legal status within the United States’ system of government. Initially, this was achieved through treaty. After 1871 (when the United States renounced formal treaty making with tribes), this was accomplished through congressional statutes and through the Interior Department acting pursuant to delegated authority from Congress (Cadwalader and Deloria, 1984; Pevar, 1992; Utter, 1993; Wilkinson, 1987). From 1855 to 1919, tribes reserved land and a unique legal status through executive order (Pevar, 1992; Wilkinson, 1987). However, with minor exceptions, the Supreme Court has not distinguished among these methods in its consideration of reserved tribal land and legal rights and has viewed them as legally comparable (Cadwalader and Deloria, 1984; Pevar, 1992; Utter, 1993; Wilkinson, 1987). This section discusses the most pertinent aspects of the unique legal status that many American Indian tribes secured in these three ways.
Tribes as “Domestic Dependent Nations”
The term domestic dependent nation was initially used in 1831 in the Supreme Court case Cherokee Nation v. Georgia. At the time, it was meant to express the anomalous legal status American Indian tribes had obtained as a result of the loss of their sovereign right to form political and legal relationships with nations other than the United States (Cadwalader and Deloria, 1984; Shattuck and Norgren, 1991). Although American Indians often justifiably argue that such an abrogation of inherent rights was impossible without their consent, this abrogation was nevertheless in accordance with the doctrine of discovery: a legal canon widely accepted by European nations at the time (Cadwalader and Deloria, 1984; O’Brian, 1986; Shattuck and Norgren, 1991). However, as was touched upon in the previous section, by the end of the nineteenth century, the Court had abandoned legal precedent by using the tribes’ domestic dependent nation status to transform its conception of tribes from nations that were sovereign except in regard to the right to form political and legal relationships to groups whose sovereignty existed only at the discretion of the federal government (Cadwalader and Deloria, 1984; O’Brian, 1986; Pevar, 1992; Ryser, 1992; Shattuck and Norgren, 1991; Wilkinson, 1987).
One ramification of this transformation is the view that the federal government gained a title, superior to that of American Indians, to all land claimed by the United States (regardless of whether or not individual tribes had formally ceded that title) (Cadwalader and Deloria, 1984; Pevar, 1992; Shattuck and Norgren, 1991; Wilkinson, 1987). The tenets of American Indian land title that this transformation engendered are:
(1) the federal government acquired ownership of all land within the United States by discovery and conquest, (2) Indians retain a perpetual right to live on their ancestral homeland until such time as Congress decides to take this land for another purpose, (3) Indian title is a possessory interest, that is to say, Indians have a right to possess their ancestral homelands but not to own it unless Congress gives them title to it, and (4) Indian title cannot be sold by the Indians or bought by anyone else without authorization from the federal government. (Pevar, 1992, p.20)
Although the Court has chosen to undermine American Indian sovereignty in this manner, it nonetheless continues to view federal-Indian treaties (and the treaty substitutes discussed in the introduction to this section) as similar in character to those treaties that the federal government makes with foreign nations. However, the Court also considers both the making and breaking of treaties to be solely at Congress’ discretion and beyond judicial review. Because of this, Congress is seen as having the ability to eliminate at will both the land title and the unique legal rights American Indian tribes have reserved through treaties and treaty substitutes. Congress is viewed as having plenary power (i.e., nearly absolute power) “... over all Indian tribes, their government, their members, and their property” (Pevar, 1992, p.48). Congress’ plenary power allows it “... to legislate for the Indian tribes in all matters, including their form of self-government” (U.S. v. Wheeler, 435 U.S. 313).
However, although the Court has decided not to limit the scope of political choices open to the federal government in relation to tribes, it does insist that the implementation and administration of such policies as the federal government has chosen to adopt conform to “... legal standards of regularity, calculability, and due process consistent with liberal principles of formal legal rationality” (Shattuck and Norgren, 1991, p.191). In accordance with this, the Court has established legal rules insisting that unclear treaty language be interpreted in favor of the American Indian signatories and that Congressional treaty abrogation be explicit and done with full notice (Shattuck and Norgren, 1991). The Court has also established, in conformity with the Just Compensation Clause of the Fifth Amendment to the U.S. Constitution, that if Congress deprives a tribe of land or vested rights that were reserved by an act of Congress, the government must compensate that tribe for the loss (Pevar, 1992; Shattuck and Norgren, 1991; Wilkinson, 1987).
The Court further insists that the federal government’s dealings with tribes conform to its trust responsibility toward them (Canby, 1981; Getches and Wilkinson, 1986; Pevar, 1992). In regard to this responsibility, Canby (1981) states,
At its broadest, the relationship includes the mixture of legal duties, moral obligations, understandings and expectancies that have arisen from the entire course of dealing between the federal government and the tribes. In its narrowest and most concrete sense, the relationship approximates that of trustee and beneficiary, with the trustee (Federal Government) subject in some degree to legally enforceable responsibilities. (p.32)
The doctrine of trust responsibility obligates the federal government to fulfill the explicit commitments it has made to American Indian tribes in treaties, federal statutes, agreements, and executive orders (Getches and Wilkinson, 1986; Pevar, 1992). To a lesser degree, it obligates the government to fulfill implied commitments as well (Pevar, 1992). It also imposes on the federal government a duty to “... remain loyal to Indians and to advance their interests, including their interest in self-government” (Pevar, 1992, p.27). In regard to this, a 1977 Senate commission stated,
The purpose behind the trust doctrine is and always has been to ensure the survival and welfare of Indian tribes and people. This includes an obligation to provide those services required to protect and enhance Indian lands, resources, and self-government, and also includes those economic and social programs which are necessary to raise the standard of living and social well-being of the Indian people to a level comparable to the non-Indian society. (American Indian Policy Review Commission, 1977, p.130)