Alaska Native Claims Settlement Act
Alaska Natives, including the Aleut, Athabaskan, Inupiat, and Yup'ik Eskimos and the Tlingit and Haida Indians, settled their aboriginal land claims with the United States in 1971 under the Alaska Native Claims Settlement Act (ANCSA) Public Law 92-203. Unlike the Native American tribes of the lower forty-eight states, who entered into treaties with the federal government and whose lands are held under trust by the federal government, Alaska Natives pursued a legislative settlement that required them to establish profit-making corporations and to hold their land under fee simple title. Congress and the Richard M. Nixon Administration saw ANCSA, with its major features of land, money, and corporations, as a means to assimilate Alaska Natives into the larger society. Natives, on the other hand, largely viewed ANCSA as a vehicle of economic self-determination.
The 1867 Treaty of Cession, under which Russia sold Alaska to the United States, held that "uncivilized tribes" were to be subject to the same laws as other American Indians. In subsequent legislation, the federal government recognized the use and occupancy land rights of Alaska Natives first in the Organic Act of 1884 and then in the Alaska Statehood Act of 1958, which allowed the state to select 103 million acres of land. Although the statehood act stipulated that Native lands were exempt from selection, the state began to select lands used and occupied by Native villages and to claim royalties from federal oil and gas leases on Native lands. Alaska Natives began to organize regional associations to protect their land ownership. As Natives protested the actions of the state, Secretary of the Interior Stewart Udall ordered the suspension of federal oil and gas lease sales and adopted a "land freeze" on the disposition of all federal lands in Alaska. The freeze served to protect Native land rights and to block the construction of the 800-mile oil pipeline from Prudhoe Bay in the north to Prince William Sound.
With political pressure mounting to settle the land claims and to develop the oil resources of Alaska, Natives seized the opportunity to lobby Congress for a land claims settlement. Led by the Alaska Federation of Natives (AFN), they were successful in securing legislation that has been heralded as the largest aboriginal land settlement. It also diverged dramatically from earlier historic land models with Indian tribes. However, in the haste to secure a settlement and with the focus on the size of the land settlement, structural issues that should have been analyzed were overlooked and ignored in the legislation.
Under ANCSA, Alaska Natives received a total of 44 million acres of land including surface and subsurface rights. These lands were to be conveyed to twelve regional corporations and 203 village corporations that were organized under the laws of the state of Alaska. ANCSA also authorized the payment of $962 million for the extinguishment of all aboriginal claims.
Village corporations were entitled to receive 22 million acres of land, which were divided on a population basis. The regional corporations received full title to 16 million acres of land and the subsurface estate in the 22 million acres patented to the villages. The regional corporation land was divided among the twelve regional corporations on the basis of the total acreage in each region rather than population. The southeast Alaska Indian communities were allowed to receive only a single township or 23,040 acres. They had received a $7.5 million award in 1968 under the Tlingit and Haida judicial settlement for the federal withdrawals of 20 million acres of lands in southeast Alaska.
Two million acres were set aside for other purposes, including cemeteries and historical sites. Four Native urban corporations, which had formerly been historic Native communities but were predominantly non-Native cities in the 1970s, were allowed to select land from the 2 million acres. Native communities with populations less than twenty-five residents received land from this acreage. The total acreage for allotments, which had been filed before the passage of the Act, was also deducted from this entitlement.
Four million acres, which had been held by five reserves as trust lands by the federal government, were revoked by ANCSA. The Natives of these reserves formed corporations to hold their lands, including both surface and subsurface lands under fee simple title, but they were not entitled to the monetary benefits under ANCSA. Ironically, the only remaining reservation in Alaska was for the Tsimshian Indians, who had emigrated from Canada. They were granted the Annette Island reservation in southeast Alaska by Congress in 1891.
Natives who were not permanent residents of Alaska organized a thirteenth regional corporation. It received its pro rata share of the financial settlement, but it did not receive land, nor was it entitled to receive revenues from mineral or timber development of the regional corporations.
The Secretary of the Interior was authorized to prepare a roll of all Natives who were of one-quarter or more Alaska Native, who were born on or before the date of enactment of ANCSA, and who were living on or before December 18, 1971. The secretary's roll was to also include the village and region of each enrollee. Both regional and village corporations issued one hundred shares of stock to each Native enrolled in their region and village. Some Natives were enrolled as at-large shareholders, that is, shareholders only in regional corporations because their permanent homes were away from villages that were certified to participate in ANCSA. The number of shareholding Alaska Natives enrolled to Native corporations totaled more than 78,000.
The hunting and fishing rights of Alaska Natives were extinguished under ANCSA. However, Congress adopted a subsistence priority for rural Alaskans in 1980 within the Alaska National Interest Land Conservation Act.
ANCSA is unique in many aspects and one provision is the antithesis of profit-making corporations. Under Section 7(i), regional corporations are required to distribute 70 percent of their profits from mineral and timber development to other regional corporations. A minimum of 50 percent of 7(i) revenues must be distributed to village corporations and at-large shareholders. The intent of Congress was to equalize the resource revenues between regions that were resource rich and those that were resource poor.
Initially, Natives had assumed that their tribes, clans, or communities would be the recipient of lands, but by 1968 corporations were proposed as the vehicle to implement the land settlement. Many Natives had had experience with the ineptness of the Bureau of Indian Affairs and did not want to have their land held under trust and subject to the control of the federal government. The idea of Native control of their lands had gained prominence. Acceptance of the corporate model was
Albany Congress, Native Precedents
493
Clearly evident by the 1971 AFN Convention theme, "In the White Man's Society, We Need White Man's Tools."
Congress wanted to avoid creating any reservations or "racially defined" organizations and supported corporations as the vehicle to implement ANCSA. With this objective in mind, Congress limited the restrictions on the transferability of ANCSA stock for twenty years, or until 1991. Congress also rejected any possibility of keeping the enrollment open for those children born after 1971.
The conflict between for-profit corporations and Native values emerged as 1991 approached. Natives became alarmed that the expiration of the restrictions on the sale of stock could lead to non-Native control and ownership of Native lands. At the 1982 AFN Convention, Natives voted to make the "1991" issue its top priority and to seek amendments to ANCSA to protect Native land.
AFN was successful in securing the amendments that provided the legal authority to protect ANCSA land and control of their corporations. The 1991 amendments provided automatic protections for land and Native corporation stock. The stock would remain restricted unless shareholders voted to remove the restrictions. Undeveloped land was also automatically protected. The law also allowed for the issuance of stock to Natives born after 1971 and to those who missed the initial enrollment upon approval of a shareholder vote. In recognition of the cultural value of caring for elders, the amendments also allowed for special benefits to elders or those shareholders who were sixty-five years or older.
AFN was not successful in securing a tribal option, which would have allowed for the transfer of ANCSA lands to tribal governments. ANCSA did not extinguish the two hundred tribal governments in Alaska, but those governments effectively lost their land base. A few village corporations transferred their land to tribes, but concern that the lands would not be treated as trust lands and protected by the federal government deterred the movement.
ANCSA corporations are different from other profit-making corporations. They pursue both economic and social goals seeking to protect their Native way of life and traditions. They have been variously successful; some corporations have expanded into the national and international markets, while others teeter on the brink of bankruptcy. They are also unique in that Congress recognizes Native corporations as federally recognized tribes for special statutory purposes in over a hundred federal legislative statutes that offer special benefits and protections.
Daniel R. Gibbs
See also Alaska Native Brotherhood; Assembly of First Nations; Economic Development; Land, Identity and Ownership of, Land Rights; Pan-Indianism; Tribal Sovereignty.
References and Further Reading
Alaska Federation of Natives. 1991. "Making It Work: A Guide to Public Law 100-241 1987 Amendments to the Alaska Native Claims Settlement Act." Anchorage, AL: Alaska Federation of Natives.
Arnold, Robert D. et al. 1978. Alaska Native Land Claims. Anchorage, AL: Alaska Federation of Natives.
Case, D. S., and David A. Voluck. 2002. Alaska Natives and American Laws. Fairbanks: University of Alaska Press.
Jones, Richard S. 1981. Alaska Native Claims Settlement Act of 1971 (Public Law 92-203): History and Analysis Together with Subsequent Amendments. American National Government Division. Report No. 81-127 GOV. Washington, DC: Library of Congress, Congressional Research Service.
Worl, Rosita. 2003. "Models of Sovereignty and
Survival in Alaska." Cultural Survival Quarterly 27, no. 3 (Fall).
On the eve of the 1754 Albany Conference, Benjamin Franklin was already persuaded that the Hau-denosaunee leader Canassatego's advice advocating colonial unity was good counsel, and he was not alone in these sentiments. James DeLancey, acting governor of New York, sent a special invitation to Hendrick (Tiyanoga) to attend the Albany Conference, where the Mohawk sachem provided insights into the structure of the League of the Iroquois for the assembled colonial delegates. In letters convening the conference from the various colonies, instructions of the delegates were phrased in Iroquois diplomatic idiom. From colonist to colonist, the letters spoke of "burying the hatchet," a phrase that entered idiomatic English from the Iroquois Great Law. DeLancey also spoke of "renewing the covenant chain," another Haudenosaunee diplomatic idiom.
The Albany Congress convened June 19, 1754, five days after its scheduled opening, because many of the Iroquois and some of the colonial commissioners arrived late. Roughly 150 to 200 Iroquois and about twenty-five colonists attended the meeting, according to official accounts. Most of the sessions of the congress took place at the Albany Courthouse; many of the speeches to the Indians (and their replies) occurred in front of the governor's residence. Albany at the time straddled the border between colonial settlement and Iroquois country at the "eastern door" of the Six Nations' symbolic long-house. The town was still dominated by the architec-fure of the Dutch, who had founded the town before the English replaced them in 1675.
On June 28, 1754, the day after Hendrick arrived with the Mohawks, James DeLancey met with him. The two hundred Indians in attendance sat on ten rows of benches in front of the governor's residence, with colonial delegates facing them in a row of chairs, their backs to the building. According to Theodore Atkinson's account of the conference, this gathering was held on a warm day, after a morning rain. Governor Delancey read a speech approved by the delegates paragraph by paragraph, as New York's interpreter relayed his words to the Indians. The speechmaking also stopped briefly for the presentation of belts to the Indians, following Iroquois diplomatic custom.
DeLancey's speech began with a condolence using Iroquois diplomatic language. ("I wipe away your tears, and take sorrow from your hearts, that you may open your minds and speak freely.") Then the governor gave "A String of Wampum" in a fashion similar to what Franklin had observed a year earlier at the Carlisle Treaty Council. As the governor proceeded, the assembled Indians "Signifyed [sic] their understanding of each paragraph by a kind of Universal Huzzah" (O'Callaghan, 1853, 6: 567). And "When the great Chain belt was Dil[i]vered [sic] on this occasion, they Signifyed [sic] their understanding or Consent by Such a Huzzah repeated Seven Times over for every Tribe" (McAnear, 1953, 736). Holding the chain belt given him by the colonial delegates, Hendrick made the belt a metaphor of political union, as he advised DeLancey that the colonists should strengthen themselves and "In the mean time we desire, that you will strengthen yourselves, and bring as many into this Covenant Chain as you possibly can" (O'Callaghan, 1849, 869). It is likely that Hendrick remarked on this subject several days later, when the Indians and delegates assembled again in front of the governor's residence.
Hendrick was openly critical of the British at the Albany Congress. He hinted that the Iroquois would not ally with the English colonies unless a suitable form of unity was established among them. In talking of the proposed union of the colonies and the Six Nations on July 9, 1754, Hendrick stated, "We wish this Tree of Friendship may grow up to a great height and then we shall be a powerful people" (Colonial Records, 1851, 6: 98). In effect, Hendrick was repeating the advice Canassatego had given colonial delegates at Lancaster a decade earlier, this time at a conference devoted not only to diplomacy, but also to drawing up a plan for the type of colonial union the Iroquois had been requesting. The same day, at the Courthouse, the colonial delegates were in the early stages of debate over the plan of union.
Hendrick followed that admonition with an analysis of Iroquois and colonial unity, when he said, "We the United Nations shall rejoice of our strength" as we will "have now made so strong a Confederacy." In reply to Hendrick's speech on Native American and colonial unity, DeLancey said: "I hope that by this present Union, we shall grow up to a great height and be as powerful and famous as you were of old" (Colonial Records, 1851, 6: 98). These words of Hendrick and DeLancey are significant in that they go beyond Covenant Chain rhetoric and talk of the symbol of the Great Law (the Great Tree). Franklin was commissioned to draw up the final draft of the Albany Plan the same day, two months to the day after his Pennsylvania Gazette had published the "Join or Die" cartoon.
On July 10, 1754, Franklin formally proposed his Plan of Union before the congress. Franklin wrote that the debates on the Albany Plan "went on daily, hand in hand with the Indian business" (Bigelow, 1868, 295). In drawing up his final draft, Franklin was meeting several diplomatic demands: the Crown's for control; the colonies' desires for autonomy in a loose confederation; and the Iroquois' stated advocacy for a colonial union similar (but not identical) to their own in form and function. For the Crown, the plan provided administration by a president-general, to be appointed by England. The individual colonies were to be allowed to retain their own constitutions, except as the plan circumscribed them. The retention of internal sovereignty within the individual colonies closely resembled the Iroquois system and had no existing precedent in Europe.
Franklin chose the name "Grand Council" for the plan's deliberative body, the same name generally applied to the Iroquois central council. The number of delegates, forty-eight, was close to the Iroquois council's fifty, and each colony had a different number of delegates, just as each Hau-denosaunee nation sent a different number of sachems to Onondaga. The Albany Plan was based in rough proportion to tax revenues, however, while the Iroquois system was based on tradition.
The Albany Plan of Union called for a government under which each colony could retain its present constitution (Bigelow, 1868). Basically, the plan provided that Parliament was to establish a general government in America, including all the thirteen colonies, each of which was to retain its present constitution except for certain powers (mainly mutual defense) that were to be given to the general government. The king was to appoint a president-general for the government. Each colonial assembly would elect representatives to the Grand Council.
The president-general would exercise certain powers with the advice of the Grand Council, such as handling Indian relations, making treaties, deciding upon peace or war, raising troops, building forts, providing warships, and finally to make such laws and levy such taxes as would be needed for its purposes. Through this plan colonial leaders embraced a plan for union that Indian leaders such as Canassat-ego and Hendrick had urged upon them for a decade or more. Thus, the roots of intercolonial unity are in the Indian-white relations of the early eighteenth century. During this time, men such as Benjamin Franklin saw in the Iroquois Confederacy a model on which to build.
Bruce E. Johansen
See also American Indian Contributions to the
World; Canassatego; Franklin, Benjamin, Native American Influences; Haudenosaunee Confederacy, Political System; Hendrick.
References and Further Reading
Bigelow, John, ed. 1868. Autobiography of Benjamin Franklin. Philadelphia, PA: J. B. Lippincott Co.
Colden, Cadwallader. 1902. History of the Five Nations. New York: New Amsterdam Book Company.
Colonial Records of Pennsylvania. 1851. Volume 6. Harrisburg, PA: Theo Fenn & Co.
Grinde, Donald A., Jr., and Bruce E. Johansen. 1991. Exemplar of Liberty: Native America and the Evolution of Democracy. Los Angeles, CA: UCLA American Indian Studies Center.
Jacobs, Wilbur R. 1966. Wilderness Politics and Indian Gifts. Lincoln: University of Nebraska Press.
Johansen, Bruce E. 1982. The Forgotten Founders:
Benjamin Franklin, the Iroquois and the Rationale for the American Revolution. Ipswich, MA: Gambit.
McAnear, Beverly. 1953. "Personal Accounts of the Albany Congress of 1754." Mississippi Valley Historical Review 39, no. 4: 736-737.
O'Callaghan, E. B., ed. 1849-1851. The Documentary History of the State of New York. Albany, NY: Weed, Parsons and Company.
O'Callaghan, E. B., ed. 1853-1887. Documents Relative to the Colonial History of New York. Vol. 6.
Albany, NY: Weed, Parsons and Company.
Van Doren, Carl, and Julian P. Boyd, eds. 1938. Indian Treaties Printed by Benjamin Franklin 1736-1762. Philadelphia: Historical Society of Pennsylvania.
American Indian Religious Freedom Act
The American Indian Religious Freedom Act (AIRFA, Public Law 95-341), was signed into law by President Jimmy Carter on August 12, 1978. President Carter defined the intention of AIRFA well when he stated at the signing ceremony
It is the fundamental right of every American, as guaranteed by the first amendment of the Constitution, to worship as he or she pleases. . . . This legislation sets forth the policy of the United States to protect and preserve the inherent right of American Indian,
Eskimo, Aleut, and Native Hawaiian people to believe, express, and exercise their traditional religions.
The Act was introduced in the Senate on December 15, 1977, by Senator James Abourezk (Democrat, South Dakota) and later in the House of Representatives by Representative James Udall (Democrat, New Mexico). The Senate held hearings on AIRFA but the House did not. Testimony in the Senate hearings came primarily from Native Americans and representatives of various government entities. AIRFA was considered and passed in the
Senate on April 3, 1978, and in the House on July 18, 1978.
President Carter and Secretary of Agriculture Bob Berglud were enthusiastic supporters of AIRFA, as were several senators and congresspersons. The Department of Justice expressed concerns about the effect of AIRFA on existing state and federal laws but was reassured by Representative Udall, who stated that it had "no teeth in it" and was not intended to override existing state laws. President Carter echoed this sentiment and stated that the "act is in no way intended to alter... or override existing laws." With those concerns addressed, AIRFA passed with very little resistance in the House or Senate. Congress passed AIRFA with the intent of eliminating federal interference with the exercise of Native American religious traditions and to compel government agencies to consider AIRFA in the institution and administration of policies and procedures.
AIRFA is divided into two sections. The first section addresses the right of Native Americans to practice their traditional religions. The relevant language states:
Whereas, the freedom of religion for all people is an inherent right, fundamental to the democratic structure of the United States and is guaranteed by the First Amendment of the United States Constitution. . .Whereas traditional American Indian ceremonies have been intruded upon, interfered with, and in a few instances banned: Now therefore, be it resolved by the Senate and House of Representatives of the United States of America in Congress assembled, that henceforth it shall be the policy of the United States to preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions... including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonial and traditional rites.
This section of AIRFA is important because it was the first federal legislation specifically addressing Native Americans' inherent right to freedom of religion.
Section 2 requires that the president direct federal departments and agencies responsible for administering relevant laws to evaluate their policies and procedures in consultation with traditional
Native religious leaders and report back to Congress with any recommended changes in one year's time.
The AIRFA Report
The report committee formed to satisfy Section 2 of AIRFA was chaired by Secretary of the Interior Cecil B. Andrus. The report was submitted to Congress in August of 1979 and detailed the government's overall failure to protect Native Americans' religious freedoms. It stated that the failure had primarily stemmed from the "ignorance and misunderstanding on the part of the non-Indian" of Native American religions. The report called for the need for improvements in several areas, including access to sacred objects such as eagle feathers and peyote, access to sacred sites, protection of sacred sites, and the overall double standard in terms of the treatment of European-American versus Native American human remains. The response of government agencies and departments was sporadic and generally dismal. Because AIFRA lacked a clear interpretation of Congress's intent, primarily due to the use of convoluted language on the lack of penalties for noncompliance, there was little incentive for government response.
The Suppression of Native American Religious Traditions
Native Americans have had their free practice of religion suppressed by every Western nation that sought to colonize the New World. Throughout history, suppressing Native religious practices has been a common practice of those seeking to subjugate a people. It was thought that through the denial of a people's own culture, they would be easily assimilated into their suppressor's culture. France, Britain, Spain, and the United States all suppressed Native Americans' free practice of religion and supported, and often funded, efforts to convert Native Americans to Christianity. Freedom of religion has been the law of the land since the birth of the United States as a nation; however, this basic right, guaranteed to all by the Constitution, has repeatedly been denied to Native Americans.
It is ironic that the first Europeans who would become known as Americans settled here because they were fleeing religious persecution. The United States continued the policy of the earlier colonial governments by actively promoting Christianity to Native Americans. Christian missionaries were hired
As Indian agents, tribal administrative control was often placed in the hands of religious denominations, and tribal-held land was repeatedly given away to organizations that promised to build religious schools or churches on it. In 1869, the Board of Indian Commissioners was established with the intended purpose of educating Native Americans in the principles of Christianity. In 1879, the Carlisle Indian Industrial School was established in Carlisle, Pennsylvania, by the U. S. government for the education of Native American children. The school's director, Richard Pratt, stated that his goal was to "[k]ill the Indian and save the man." The school punished children for wearing Native dress or speaking their own languages and forbade any practice of their Native religious traditions.
Interior Secretary Henry M. Teller holds the distinction of being the first U. S. government representative to order official restrictions on the practice of Nafive American religious customs. In an 1882 directive Teller ordered an end to all "heathenish dances and ceremonies" on reservations due to their "great hindrance to civilization." In 1883, Commissioner of Indian Affairs Hiram Price codified the practice of officially restricting Native American religious freedom by creating the Indian Religious Crimes Code. In his 1883 annual report to the secretary of the interior, Price stated
There is no good reason why an Indian should be permitted to indulge in practices which are alike repugnant to common decency and morality; and the preservation of good order on the reservations demands that some active measures should be taken to discourage and, if possible, put a stop to the demoralizing influence of heathenish rites.
In 1892, Commissioner of Indian Affairs Thomas J. Morgan sought to further suppress Native religions by ordering penalties of up to six months in prison for those who repeatedly participated in religious dances or acted as medicine men.
The government's attempts to suppress and in many instances outright ban Native American religious practices led to one of the bloodiest events in the history of the United States: the Massacre at Wounded Knee. To enforce the ban on the Ghost Dance in accordance with the Indian Religious Crimes Code, the Seventh Calvary was sent into the Lakota Sioux's Pine Ridge and Rosebud Reservations to stop the dance and arrest the participants.
General Armstrong Custer's former unit, in response to a dispute over a firearm, attacked and killed approximately 150 Native American men, women, and children on December 29, 1890. Charges of killing innocents were brought against members of the Seventh Calvary, but all were later exonerated. The massacre marked the effective end of the Ghost Dance movement and, according to many historians, signified the end of the Indian Wars.
The Start of a Change in U. S. Policy
The shift toward acknowledging Native American religions, the government's obligations to the tribes, and their rites as citizens of the United States began in 1933 when President Franklin D. Roosevelt appointed John Collier as commissioner of Indian Affairs. Collier issued Bureau of Indian Affairs Circular 2970, "Indian Religious Freedom and Indian Culture," on January 3, 1934. The circular was sent to all federal agencies and read in part "no interference with Indian religious life or ceremonial expression will hereafter be tolerated." Collier also guided, with the support of President Roosevelt, the Indian Reorganization Act, commonly known as the Indian New Deal, through Congress. This act dramatically changed U. S. policy by allowing tribal selfgovernment and consolidating individual land allotments back into tribal hands.
In the 1960s, partly in response to a nationwide wave of discontent and a trend toward active protesting of government policies, a renewed movement of Native American activism resulted in the passage of several acts, including AIRFA. Native Americans began to cooperate and organize a panIndian movement to push for change through political channels. While there is a long history of panIndian movements, many feel that this one had its roots in the forced boarding school programs and the Bureau of Indian Affairs relocation programs. Both programs brought Native Americans from several tribes together in situations in which their common hardships and interests led to increased intertribal communication and cooperation.
One of the first politically active Native American groups to form was the National Indian Youth Council (NIYC), created in 1961. NIYC participated in a series of protests calling for the recognition of treaty-granted fishing rights in the state of Washington. The American Indian Movement (AIM), the most vocal and well-known of the Native American
Activist groups, was formed in 1968 by George Mitchell and Dennis Banks in Minneapolis. AIM participated in the 1969 occupation of Alcatraz, the November 1972 occupation of the Bureau of Indian Affairs building in Washington, D. C., and the 1973 occupation of Wounded Knee.
Largely in response to Native Americans' well publicized calls for change, a large number of acts were passed by Congress in the late 1960s and 1970s: the Indian Civil Rights Act (PL90-284) in 1968; the Alaska Native Claims Act (PL92-208) in 1971; the Indian Education Act (PL92-318) in 1972; the Indian Self-Determination and Education Assistance Act (PL93-638) in 1974; the Indian Health Care Improvement Act (PL94-437) in 1976; and the Indian Child Welfare Act (PL95-608) in 1978. The Archaeological Resources Protection Act (PL96-95) was passed in 1979 and prohibited the excavation, removal, defacing, or sale of human remains or burial items unless done in accordance with the law.
The increased public awareness of the Native American's plight led to the creation of the American Indian Policy Review Commission in 1975. Consisting of three senators, three representatives, and five Indian commissioners, the commission oversaw thirty-three task forces reviewing Native American grievances and conditions. The final report was issued in May 1977 and concluded that the government had often interfered in and obstructed the efforts of Native Americans to practice their traditional religious customs. The report was instrumental in the struggle to convince Congress of the need for AIRFA.
Legislation Following AIRFA and AIRFA Amendments
Since 1978, a relatively steady progression of executive orders, memorandums, and legislation has addressed problems with AIRFA and clarified Congress's intent to the courts. Issues such as access to sacred sites, the ceremonial use of peyote, the rights of Native American prisoners to practice their religions, and the repatriation of human remains and ceremonial objects have all been specifically addressed. The efforts made in addressing the issue of Native Americans' free practice of religion have not satisfied all, but most would concur that there has been a significant amount of progress made in the nearly three decades since the passage of AIRFA.
President George H. W. Bush signed MAIA, the Museum of the American Indian Act (PL101-185) in 1989 and NAGPRA, the Native American Graves Protection and Repatriation Act (PL101-601) in 1990. MAIA called for the creation of the Museum of the American Indian and the repatriation of 18,500 Native American remains held by the Smithsonian. NAGPRA calls for museums and federal agencies to return Native American human remains, funerary objects, sacred objects, and objects of cultural importance to lineal descendents, affiliated tribes, and Native Hawaiian organizations.
In 1993, the Religious Freedom Restoration Act (PL103-141) was passed and signed into law by President William Jefferson Clinton. On signing the Act, President Clinton stated that it "reestablishes a standard that better protects all Americans of all faiths. . . in a way that I am convinced is far more consistent with the intent of the Founders of this nation." In 1994, President Clinton issued a memorandum to every executive department and agency of the government, titled "Policy Concerning Distribution of Eagle Feathers for Native American Religious Purposes." In his remarks to Native American and Native Alaskan tribal leaders, he said that the memorandum directed the agencies and departments to "cooperate with tribal governments to accommodate whenever possible the need for eagle feathers in the practice of Native American religions."
The AIRFA amendments (PL103-344) were passed in 1994 to correct the inadequacies of the original Act. The 1978 version of AIRFA was seen by the courts as a policy for executive agencies and as such was not given extensive weight in court decisions. The courts have always distinguished between religious beliefs and religious practices. People are free to choose their religious beliefs, but practices have been repeatedly prohibited by the courts. Polygamy, human sacrifice, and religious customs such as those allowing rape as a penalty for a violation of religious code are all illegal based on the overriding good of the public and existing state and federal laws. In Employment Division, Department of Human Resources of Oregon v. Smith (1990), the Supreme Court ruled that Oregon was within its legal right to fire a Native American employee for the use of peyote in a religious ceremony. The court failed to recognize the religious significance of the peyote use and instead viewed it as an illegal substance not protected under the First Amendment or AIRFA.
Many Native American groups and individuals pushed for amendments to AIRFA, which clarified the legality of peyote use for religious purposes and the distinction between its traditional use and use as a recreational drug. In the hearings held by the Senate Select Committee on Indian Affairs, the late Professor Vine Deloria testified that "We need to make clear that peyote is a sacramental plant used by American Indians in a sacramental way, going back long before the memory of man. Once that clarification is made, there is no possible way to link it to those other drugs."
The amendments were considered and passed in the House of Representatives on August 8, 1994, and in the Senate on September 26, 1994. The amendments state that "Non-withstanding any other provision of law, the use, possession, or transportation of peyote by an Indian for bona fide traditional ceremonial purposes in connection with the practice of a traditional Indian religion is lawful, and shall not be prohibited by the United States or any state." The amendment includes a list of several common sense exceptions and a section prohibiting discrimination based on a Native American's use of peyote in a religious context.
On May 24, 1996, President Clinton issued Executive Order 13007, "Protection and Accommodation of Access to Indian Sacred Sites." The order states that executive agencies and departments should "accommodate access to and ceremonial use of Indian sacred sites by Indian religious practitioners and avoid adversely affecting the physical integrity of such sacred sites. Where appropriate, agencies shall maintain the confidentiality of sacred sites." It was issued largely in response to the Supreme Court ruling in the Lyng v. Northwest Indian Cemetery Protective Association. The case resulted from the U. S. Forest Service's desire to build a road near a Native American religious site. Several tribes were joined by various parties, including the state of California, in seeking a court order to bar the project under AIRFA. The Supreme Court, as stated by Justice Sandra Day O'Connor, decided that "Whatever rights the Indians may have to use of the area those rights do not divest the Government of its right to use what is, after all, its land."
The Religious Land Use and Institutionalized Persons Act (PL106-274) was signed into law in 2000 by President Clinton. The legislation guarantees access for Native Americans to religious sites located on government property. Section 2 regards the right of Native American prisoners to practice traditional religions. It states, "No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, . . . even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person is in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest."
James Thull
See also Ceremonies, Criminalization of; Graham, Mount (Dzil Nchaa Si An), Controversy over; Lyng v. Northwest Indian Cemetery Protective Association; Native American Church of North America; Native American Graves Protection and Repatriation Act; Sacred Sites; Tribal Sovereignty.
References and Further Reading
American Indian Religious Freedom Act. 1978. Public Law 341, 95th Cong., 2d sess. July 18.
American Indian Religious Freedom Act Amendments. 1994. Public Law 344, 103rd Cong., 2d sess. September 26.
Andrus, Cecil, Secretary of the Interior, Federal Agencies Taskforce. 1979. American Indian Religious Freedom Act Report, P. L. 95-341.
August.
Batzle, Peter, and Melanie Oliviero. 1980. "The Congress." American Indian Journal 6, no. 1: 16-20.
Lee, Irwin. 1997. "Freedom, Law, and Prophecy: A Brief History of Native American Religious Resistance." The American Indian Quarterly 21, no. 1: 35-56.
U. S. Senate Committee on Indian Affairs. 1992.
Oversight Hearing on the Need for Amendments to the American Indian Religious Freedom Act, 102nd Cong., 1d sess., March 7.
U. S. Senate Committee on Indian Affairs. 2004. Oversight Hearing on American Indian Religious Freedom Act, 108th Cong., 2d sess., July 14. Vecsey, Christopher, ed. 1991. Handbook of American Indian Religious Freedom. New York: Crossroad Publishing Company.
Venables, Robert W. 2004. American Indian History Five Centuries of Conflict and Coexistence, Vol. II. Santa Fe, NM: Clear Light Publishers.
The Bureau of American Ethnology (BAE), established in 1879 by Congress, is the sponsoring body that supported the most extensive early research program on North American cultures. It performed
That task as a semiautonomous unit under the secretary of the Smithsonian between that year and 1965, when it merged with the Department of Anthropology at the Smithsonian. Though the activities of the BAE are varied, its most recognizable contributions are its Annual Reports, the Contributions to North American Ethnology series, and particularly the Bulletins, easily identified by the original large, green and gold trim volumes, with the imprint of the BAE logo—a "cliff dwelling" complete with rock art figures in the foreground—on the frontispiece. Published by the Government Printing Office (GPO), these were free and widely distributed and are still readily accessible today in many libraries that are government depositories.
The history of the BAE is intertwined with that of the development of American anthropology, its relationship with American Indians, and issues of the role of government in sponsoring research activity. The earliest ethnologists were not trained as such, but were in the service of the U. S. Geological Survey and found themselves in intimate contact with American Indians in their regions of activity. Among them was John Wesley Powell, who had worked extensively in the Southwest. Powell was responsible for lobbying for the establishment of the Bureau of Ethnology; he was made its first director in 1879. Under Powell, the BAE grew to become one of the most significant archival collections of ethnological information about Native Americans through the activity of its staff ethnologists. As a training ground for the field of anthropology, it supported the work of some of the most well-known early field anthropologists: Frank Hamilton Cushing, Franz Boas, Otis T. Mason, James Mooney, among others, were all contributors to the bureau's collections.
Classic monographs, such as Boas's Tsimshian Mythology, Mooney's Myths of the Cherokee and The Ghost-Dance Religion, and Cushing's Zuni Fetishes, were all, in their original form, contributions made with BAE support for the Annual Reports or the Bulletins series. These are surviving relics of an era sometimes called "salvage ethnography," after the apparent motivation of Congress and anthropological scholars to document Native American life in its perceived twilight, and they were notable for a division that was not conceived as a permanent institution. Nevertheless, the ethnologists involved with the BAE were increasingly well-trained figures, producing narratives with intensive ethnographic detail, which are still valued for the material they preserved.
As it evolved, the bureau engaged itself in shaping public awareness of anthropology through exhibitions and at international expositions. With this increasing notoriety, it became a repository of varied material from additional nonstaff sources (including military personnel, missionaries, and amateur scholars), drawing an extensive manuscript, map, and document archive, as well as an illustrative and photographic collection. Other major endeavors of the bureau included, under the direction of ethnologist-in-charge W. Frederick Hodge (1910-1918), the first Handbook of American Indians, published as Bulletin 30 in 1907 as two volumes. Still widely valued for reference today, John Swanton's compendia, The Indians of the Southeastern United States, was published as Bulletin 137 and The Indian Tribes of North America as Bulletin 1945. Also a major BAE project was the Handbook of South American Indians, edited by Julian Steward under his Institute for Social Anthropology and published as Bulletin 143, between 1946 and 1959.
In 1965, the BAE catalogue and materials were incorporated into the National Anthropological Archives, where they are housed today. In 1970, the last bulletin under the bureau name was issued, an index to authors and titles of all preceding BAE publications. Two current trends are also notable with respect to the history and significance of the BAE. Of late, the National Museum of Natural History has been sequentially closing the old Halls of Ethnology, remembered by many as hallmarks of the Smithsonian experience. Thus, the era of public exhibits that were shaped and informed by the long tradition of ethnological work at the Institution has come to a close. With respect to American Indian cultures and peoples, that mantle has passed to the National Museum of the American Indian. However, lest the collection become valued only by researchers and archivists, the NAA and the Smithsonian Institution Libraries have endeavored to begin the digitization of the publications of the BAE.
Christopher Lindsay Turner
See also Boas, Franz.
References and Further Reading
Glenn, James R. 1996. Guide to the National
Anthropological Archives, Smithsonian Institution. Washington, DC: Smithsonian Institution.
Hinsley, Curtis M., Jr. 1978. The Development of a Profession: Anthropology in Washington, D. C., 1846-1903. Ann Arbor, MI: University Microfilms.
Smithsonian Institution, Bureau of American
Ethnology. 1971. List of Publications of the Bureau of American Ethnology with Index to Authors and Titles, Bulletin 200. Washington, DC: U. S. Government Printing Office. Available at: Http://www. sil. si. edu/DigitalCollections/BAE /Bulletin200/200title. htm. Accessed January 13, 2007.
Bureau of Indian Affairs: Establishing the Existence of an Indian Tribe
The Bureau of Indian Affairs (BIA) is the branch of the federal government charged with organizing and carrying out governmental policy relating to American Indians. While the original purpose of the BIA was to liquidate Indian lands, over the course of its history, the BIA has become an institution that attempts to manage Indian affairs and to act as the federal government's liaison with American Indian peoples on and off the reservations. Originally called the Office of Indian Affairs (OIA), the bureau was established by President James Monroe in 1824 as part of the Department of War for the purpose of supporting and, it was hoped, eventually assimilating American Indians.
In the beginning, the Office of Indian Affairs was dominated by the individual Indian agents, most often apolitical appointees placed on reservations. The Indian agents directed the distribution of food, goods, and other treaty annuities, oversaw education and missionary work, and policed various activities such as the prohibition of liquor as well as controlling the payroll of tribal police. The lack of direct supervision of Indian agents opened the door for corruption and mistreatment.
The Office of Indian Affairs was run by the Secretary of War until July 1832, when Congress established the position of the commissioner of Indian Affairs and appointed Elbert Herring to the post. The OIA was conceived as a temporary institution that would manage Indian affairs until the Native peoples were settled enough on the reservations to create new governments or had assimilated into mainstream society. On May 20, 1834, the House Committee on Indian Affairs reported that the activities of the OIA were being carried on in violation of law and without any legally recognized authority. The committee advised that the OIA be shut down and its work passed on to the Native peoples. After the committee's initial admonishment, they passed a bill on June 30, 1834, that effectively gave the Office of Indian Affairs branch status and legal status. In 1849, the renamed Bureau of Indian Affairs was transferred to the new Interior Department where it would more efficiently be able to liquidate Indian lands. The BIA was not a part of any treaty plan, but, as the federal government began to tighten its hold on reservation life, due to increased Western migration and demands for Indian lands, the bureau gained power and became unwieldy, often resulting in actions that reflected the government's rather than the Indian's interests.
After the Civil War, the BIA began to focus on breaking up traditional forms of tribal governments on reservations in order to harness political and decision-making powers. The BIA also began to search for a more effective means of eradicating Indian cultural practices. The General Allotment Act of 1887 changed the relationship between the BIA and Indian tribes. With the Allotment Act and the introduction of individual ownership of reservation property, the government found it easier to acquire more Indian lands as well as to exploit those lands for their natural resources. Indian agents were encouraged to force their charges to give up their property and traditional ways. The BIA policy toward American Indians was that of assimilation, the preferred method of assimilation was through education, and the preferred method of education was the boarding school, which separated children from their families and traditional culture. From 1900 through the 1970s, at least half of the BIA budget went toward schooling. And in 1908, Commissioner Francis E. Leupp eradicated the post of Indian agent and passed the administrative powers of the BIA onto the school teachers and educators on the reservations. After years of assimilation policies, the Bureau of Indian Affairs endured a public setback in 1928 with the publication of the Meriam Report. This report chastised the BIA for the poor reservation conditions American Indians suffered under and for the lack of programs for their economic, educational, and political development. The report also proposed that the BIA become an agency that worked to protect and encourage American Indian traditions. Beginning with Commissioner Charles Rhoads in 1929, policies began to turn more toward Indian selfdetermination.
In 1934, during the Great Depression, Commissioner John Collier took government policy
The twenty-fourth commissioner of Indian Affairs, Thomas J. Morgan, with a Sioux delegation. Morgan enunciated a clear program of education for Native American children and was a principal force in the effort to assimilate Native Americans into U. S. society. (Library of Congress)
Significantly closer to self-determination, at least when compared with the past. Collier is, perhaps, the best-known commissioner of the Bureau of Indian Affairs. He believed that the purpose of the BIA was to protect Indian rights and lands and to bring greater cultural understanding of American Indians to the larger American population. He worked to preserve Indian traditions and to bring power back to Native polities with the Indian Reorganization Act of 1934. The so-called Indian New Deal attempted to create tribal governments with administrative power and democratic elections, but it failed to provide these governments with enough control due to the continued veto authority of the Secretary of the Interior over reservation laws. The Indian Reorganization Act has also been viewed as contributing to the destruction of traditional forms of power on reservations due to its enforcement of a uniform system of governance.
By 1950, the relationship between the BIA and American Indians had become increasingly strained due to the federal policy calling for the Termination of tribal status. Dillon S. Meyer, a supporter of termination, was appointed Indian commissioner in 1950 and began to install a policy of scattering Indian peoples in order to reduce their ties to the land. The launching of termination came with the passage of House Concurrent Resolution 108 and aimed to remove all federal services to American Indian tribes. Through strong agitation and protest, however, the termination policy was disbanded in 1960. The BIA also derived the relocation program from its Termination predecessor with the intent of moving Indians off poverty-stricken reservations and into cities where they could find work and a place to live. However, due to lack of funding and services for the new urban migrants, the program fell short of its goals.
The 1960s and 1970s saw an increase in non-BIA-controlled programs for American Indians and the weakening of BIA power. President Lyndon B. Johnson's Great Society included a place for independent autonomous reservations and began to flow money into housing programs, health care, education, and work training. The successes of these programs led President Richard M. Nixon to declare a policy of self-determination for Indian tribes and nations in which the Bureau of Indian Affairs would play a reduced role on reservations, and tribes would eventually host their own administrative governments. In 1975, the Indian Self-Determination and Education Act called for more Indian control
Over the BIA by giving tribes the ability to gain the contracts for reservation programs in order to manage the programs themselves. In addition, the 1960s saw the appointments of Indian commissioners to the BIA like Robert Bennett (Oneida) and Louis Bruce (Mohawk-Sioux.) These new commissioners were willing to challenge the bureaucracy of the BIA and refashion it into a governmental agency that would work for American Indians. Hiring practices also changed and by 1980, 78 percent of BIA employees were of American Indian descent.
From approximately 1908 to 1949, the BIA consisted of a central office, located in Washington, D. C., and field offices located on various reservations. In 1949, the BIA was reorganized in an attempt to increase communication and to reduce bureaucratic red tape. New area offices were added to coordinate between central and field offices. For the most part, this three-tiered BIA structure is still in place today. Currently the BIA is under the direction of the assistant secretary of the interior and is a suborganization of the Department of the Interior. Under the secretary of the interior is the commissioner of Indian affairs who is responsible for the execution of congressional laws, as well as Department of the Interior orders, rules, and regulations.
Today the BIA attempts to promote selfdetermination, and American Indian tribes and nations administer over 50 percent of all BIA programs. However, the BIA still retains power over many of the educational and management opportunities on reservations through financial control. In September 2000, Assistant Secretary for Indian Affairs Kevin Gover (Pawnee) issued an official apology on behalf of the Bureau of Indian Affairs for the policies of land theft and assimilation that had been practiced by the agency. His statement is an effort to reconcile the past with the present and to lead the BIA in a firmly Indian direction.
Vera Parham
See also Ceremonies, Criminalization of; Collier, John; Domestic Dependent Nation; Economic Development; General Allotment Act (Dawes Act); Genocide; Indian Claims Commission; Indian Reorganization Act; Indian SelfDetermination and Education Assistance Act; Individual Indian Monies; Leupp, Francis Ellington; Parker, Ely; Reservation Economic and Social Conditions; Termination; Trail of Broken Treaties; Treaty Diplomacy, with Summary of Selected Treaties; Tribal Sovereignty; Trust, Doctrine of; Wardship Doctrine.
References and Further Reading
Deloria, Vine, Jr. 1984. The Nations Within: The Past and Future of American Indian Sovereignty. New York: Pantheon.
Forbes, Jack D. 1981. Native Americans and Nixon: Presidential Politics and Minority Selfdetermination, 1969-1972. Los Angles, CA: UCLA American Indian Studies Center.
Galli, Marcia J., and Curtis E. Jackson. 1977. A History of the Bureau of Indian Affairs and Its Activities Among Indians. San Francisco: R&E Research Associates.
Hirschfelder, Arlene, and Martha Kreipe de
Montano. 1993. The Native American Almanac: A Portrait of Native America Today. Upper Saddle River, NJ: Prentice Hall.
Prucha, Francis Paul. 1984. The Great Father: The United States Government and the American Indians. Vol. 2. Lincoln: University of Nebraska Press.
Taylor, Theodore W. 1984. The Bureau of Indian Affairs. Boulder, CO: Westview Press.
Policy is multidimensional and multifaceted. As
J. W. Cell has noted it "as being something rather less fixed, something rather more historical," saying that, at any moment in time, there is "not so much policy as policy formation, an unsettled and changing set of responses by government to the continual interaction among men [and women], forces, ideas, and institutions." As such, the Indian policies of Canada as a nation-state have their origin in the history of the treaty-making process of Canada as a place. Canadian Indian policies as they developed in the eighteenth century owe their development to a mistaken European view and representation of how Europeans came to view and represent aboriginal peoples, including First Nations, Metis, and Inuit peoples. However, First Nations have no need for such policies and do not have any regard for them, except insofar as they impinge upon First Nations' sovereignty and self-determination.
The Covenant Chain of Silver literally means "to link one's arms together" and signifies a nation-to-nation relationship. Yet the nation-state of Canada misinterpreted the First Nations and the meaning of the Covenant Chain and especially the Two Row Wampum that symbolized the Covenant. As a result it misconstrued what the relationship should have been between the Dutch, English, and the French imperial governments on the one hand and the
Aboriginal nations on the other: namely, peace, mutual respect, and trust.
World History
