The following was contributed by Don Ragona (Mattinecock), Assistant Director of Development/House Counsel, Native American Rights Fund
We have always been here.
Our oral traditions tell of how we originated from “Turtle Island” (North America) and of how we thrived. Today Indian people, when asked to describe their financial well-being before the white people came, will invariably say “we were rich.” That is an economic fact, not a romantic construct, for the original economies were much more substantial and elaborate than is commonly realized by non-Indians.
In the Pacific Northwest tribes developed elaborate economic markets – reaching down to the Columbia River, well up into Canada, and to the crest of the Cascades and beyond – for the trade and sale of deer and elk meat and, especially, salmon and other marine specialties.
The ancient people called Cahokia, who lived and thrived just east of what is now St. Louis, remind us of a time when Native people flourished, reaching spectacular heights as a society, an economy, and a people. The Cahokia culture developed advanced societies across much of what is now the central and southeastern United States, beginning more than 1000 years before European contact. By 1000 AD, the Cahokia community boasted large communal plazas, grand architecture, elaborate pottery, and established religious, ceremonial, and residential infrastructure. By AD 1250, Cahokia was larger than London. Corn was grown in such abundance that it fed up to 20,000 people – and yielded a surplus. Cahokia’s population at its peak in the 13th century, an estimated 40,000, would not be surpassed by any city in the United States until the late 18th century.
Other similar examples of thriving Native economies could also be seen in the Great Plains and southwest.
When the “new people” arrived they depended on Natives and Native economies to literally survive.
Then they overran these economies with their technologies and capitalism. In ways we can’t fully comprehend, outsiders could never get beyond the ironclad assumption that Indian people were inferior and that the God-given mission of the westward expansion was to eliminate all Native institutions – and if possible all Natives – regardless of how valuable they might in fact be.
Indians, with their “primitive ways” and “heathen practices” have always been considered “in the way” of the European American’s belief that they had a divine right to expand westward. When it was determined that annihilation was not a practical or economical way to solve the Indian problem, removal became the mantra of the fledgling United States. One of the earliest of the many failed federal policies towards Indians was the forced removal from their traditional homelands to lands set aside in the west. These lands would come to be called “reservations.” Doing so was a means of confining Indian occupancy and use of land to a specific territory. Starting with tribes in the southeast being force-marched to Oklahoma territories, removal of other tribes in the Pacific Northwest, Great Plains, and southwest to remote reservations soon followed. In exchange for giving up expansive claims to all of their traditional lands, tribes were given tracts of land with the promise that these lands would remain Indian Lands “forever” or “as long as the rivers run or the grass grows.”
As more and more emigrants moved west and began settling around the lands that tribes were now settled on, their insatiable thirst for more and more land became greater. They coveted tribal lands and natural resources that were legally off limits to settlement. With pressure mounting from settlers wanting access to Indian land and from states who were jealous of the political autonomy of tribes existing within their borders, more and more land was demanded by homesteaders. The United States lacked the tactical ability or political will to prevent white encroachment onto Indian land. Instead, federal policy makers renewed old rationales of civilizing Indians and embodying them in new, ostensibly beneficial programs that required diminishing the reservation land base. Many tribes lost their ability to remain self-sufficient. Deprived of a land base large enough to supply subsistence, they became more and more dependent on federal rations promised in treaties. Traditional tribal structures were undermined by loss of land and federal control. Self-government became crippled. A syndrome of forced dependence resulting in social and economic decline became the rationale for even greater government domination of Indian life.
In the late 1880’s Congress enacted the Allotment Act.
It was ostensibly to keep order in Indian country and to protect Indians from encroaching and evermore hostile non-Indians. With the Allotment policy came additional assimilationist notions and efforts as to what was necessary for the “benefit” of tribes.
John Wesley Powell, policymaker, philosopher of the West, and believer in the extermination of Indian people was explicit about it. He strongly supported allotment in the late 1880s because, if you could wrench the land away from the tribes, especially the sacred places, you could wrench away the culture as well. That would, he and others believed, hasten the moment when the vanishing Indian would become the vanished Indian which, after all, was the ultimate objective of national policy. In addition to stealing Indian land, other “benefits” were also “bestowed” upon tribes. The federal government through its Bureau of Indian Affairs (BIA) outlawed many of the old dances and ceremonies. Traditional practitioners were threatened with punishment or were actually severely punished. In the Pacific Northwest BIA employees simply torched traditional dance halls. Is there a darker chapter in the story of the First Amendment than the United States Government’s relentless regulatory crackdown on Native dances and other customs?
From the 1870s to the 1970s, the federal government also supported policies to suppress the languages, the ultimate expression of culture and worldview in all societies. What better place to begin to eradicate Native languages than in government sanctioned boarding schools? These boarding schools prohibited the speaking of Native tongues, often washing out boys’ and girls’ mouths with yellow lye soap if they spoke them. Boarding school students would be told “don’t pay any attention to your grandparents. They are old fashioned. Ignore them and you have a chance to become a real American.” Inexcusably, federal officials stood idly by in the post-World War II era, when states and churches began aggressively removing – sometimes amounting to kidnapping – Indian children from their homes obtaining state-court adoption papers in favor of non-Indians. They took away something else. They took away hopes and dreams and optimism and individuality. They took away the right to be yourself. These egregious policies aimed at the cultural genocide of Indian people were continued and carried out in other ways.
What was thought by the federal government would be the final “nail in the tribe’s coffin” and the end to their “Indian problem” was the termination policy – Congress’ forced termination of American Indian tribes, reservations, and federal obligations to tribes. This policy was enacted in the 1950s and carried forward into the early 1970’s. This was the final straw, the line in the sand if you will. Collectively, Indian country knew that these outright assaults on Indians had to be slowed, halted, and then reversed. In a larger sense, the most persistent evolution of federal Indian policy since the mid-19th Century – assimilation of Indians, reduction of the Indian land and resource base, and the phasing out of tribal governments – had to be stilled. Even more broadly, the tribes had to cease reacting to federal policy. The tribes had to grasp the initiative. It was into this cauldron of circumstances that the Native American Rights Fund, (NARF) was created 46 years ago.
Modern Indian law and policy began to come to life in the late 1950s and early 1960s.
A consensus was reached among tribal leaders, young Indian professionals, and traditionalists. They were tied by an indelible reverence for the aboriginal past, an educated appreciation of the accelerating consequences of five centuries of contact with Europeans, and desperation concerning the future of Indian societies as discrete units within the larger society. It was not through choice that modern Indian people have placed so much reliance on federal law as made by Congress and the courts. We would rather build things internally. But there was no alternative. Outside forces were bent on obtaining Indian land, water, fish and tax revenues, and on assimilating the culture out of Indian people, especially the children. There could be no internal development or harmony until the outside forces were put at rest.
In the 1960s the United States government adopted new policies and programs in a widespread effort to address some of the social ills affecting the country. As part of the “War on Poverty,” the Office of Economic Opportunity launched government-funded legal services programs throughout the nation to provide legal representation to the disadvantaged. Those programs which were set up on or near Indian reservations and large Indian communities came to realize that the legal problems of their Indian clients were, for the most part, governed and controlled by a little known area of law – “Indian Law” – that was driven by treaties, court decisions, federal statutes, regulations and administrative rulings. They also found that few attorneys were willing to represent Indians, and those who did generally worked on a contingency basis, only handling cases with anticipated monetary settlements. Very few cases were handled on a contingency basis, meaning many issues would not get to court.
During this same period the Ford Foundation began meeting with California Indian Legal Services (CILS) to discuss the possibility of creating a project dedicated to serving all of the nation’s indigenous people. CILS had already established somewhat of a reputation for taking on Indian legal cases. As a result of those meetings, the Ford Foundation awarded CILS a planning grant in 1970 and start-up funding to launch the Native American Rights Fund in 1971.
As a pilot project of CILS in 1970, NARF attorneys traveled throughout the country to find out firsthand from the Indian communities what the legal issues were. They also began a search for a permanent location for the project, which was initially being housed at CILS’s main office in Berkeley, California. The site needed to be centrally located and not associated with any tribe. In 1971, NARF selected its new home and relocated to Boulder, Colorado.
Tribal leaders at the time placed great emphasis on the need for lawyers and law reform. Indian people and tribes are subject to many laws and regulations, and the field is known for its complexity. Their hope was that NARF could play a particular role in addressing national issues, becoming a substantial firm with excellent lawyers, and representing Indian individuals and tribes who needed attorneys on pressing matters that raised issues of national consequence but who could not afford to pay lawyers. These tribal leaders were hoping that NARF would be a revival of that old warrior spirit. They hoped that NARF would stand in defense of “the people” and take up the fight for Native rights. They were hoping for “Modern day warriors”.
Nisqually Tribal member, Native environmental leader and former NARF Board member, Billy Frank, Jr., probably said it best. “I know and believed in NARF’s early warriors and modern day warriors – today’s Indian attorneys.”
One of NARF’s core concerns is tribal sovereignty. We have seen, over these 45 years, how an advance in one discrete area of tribal sovereignty, whether it be education, health, water rights, jurisdiction, or other, that that this one victory will likely increase, even if slightly, the general respect of outsiders for tribal sovereignty.
One of the most extraordinary cases in NARF’s history has been the 1974 ruling by Judge George Boldt in United States v. Washington – which mid-19th century treaties guaranteed to tribes the right to harvest 50% of the salmon in Northwest Washington – has turned out to be even more historic than the decision seemed at the time. Judge Boldt ruled that, as sovereign governments, tribes could regulate fishing. Immediately, the tribes formed natural resource departments, drafted regulations, set up enforcement systems with officers, hired fisheries scientists, and established or upgraded existing tribal courts. These were perhaps the first modern regulatory systems in Indian country. Then, seeing how well the fisheries agencies worked, the Northwest tribes began setting up tribal agencies for education, health, land-use planning, and other purposes. They joined together to create the Northwest Indian Fisheries Commission, with deep expertise in science and policy, one of the first intertribal organizations. In time, the judicial recognition of tribal management authority, coupled with these other efforts, led to the comprehensive regime in the Northwest for co-management of the marine fisheries among the United States, the tribes, and the states.
Changes initiated by the Boldt decision went beyond fisheries. Today, the Northwest tribes are elaborate and substantial sovereign governments, with most of them having more than 300 governmental employees, not counting gaming and other enterprises. Tribal leaders regularly point to the Boldt decision as the triggering point for their modern revival. NARF has often coordinated with other people and organizations. In the Northwest for example, Billy Frank Jr. and other tribal leaders and activists played major roles in this endeavor as did legal services attorneys and private practitioners. However to this day, Northwest Indian people honor NARF’s central role in that landmark lawsuit that led to a thoroughgoing reformation of tribal organizations reaching far beyond the bounds of the actual issues decided in the case.
One of NARF’s most important projects is the Tribal Supreme Court Project. The Project is part of the Tribal Sovereignty Protection Initiative and is staffed by the IS member National Congress of American Indians (NCAI) and the Native American Rights Fund. The Project was formed in 2001 in response to a series of U.S. Supreme Court cases that negatively affected tribal sovereignty. The purpose of the Project is to promote greater coordination and to improve strategy on litigation that may affect the rights of all Indian tribes.
Native people know their homelands and, far more than most, understand the destructive march of climate change. Tribal villages in Alaska, Northwest Washington, and elsewhere have already been affected by rising ocean waters. All across the country, Indian people are seeing and feeling the impacts on forests, rivers, rangeland, and animals. NARF is working to assure that tribes will be treated as sovereigns in state and federal assessments and planning for public land and water resources.
The climate change work dovetails with NARF’s involvement in international issues where, since 1999, the organization, often representing NCAI, has been active in the adoption, among other things, for the past six years NARF has steadfastly participated in the elaborate UN Framework Convention on Climate Change process. Progress has been painfully slow but the stakes are high and NARF will continue to press for full recognition of the special circumstances, and rights under the UN Declaration on the Rights of Indigenous Peoples, of American Indians and other indigenous peoples.
Over the past 46 years, NARF has both solidified its position as a main guardian and coordinator of the whole field of Indian law and, as well, has moved into new and exciting areas. From the beginning, NARF saw itself a watchdog for the whole field, but the field was a lot smaller and less complicated back then. Even NARF has grown and established satellite offices in Anchorage, Alaska and Washington, DC Now there are many more participants and kinds of participants. Nonetheless, NARF has continued and will continue its sacred obligation to represent tribes with limited resources and significant legal needs and, as well, maintains its centrality in the national Indian law community.