Notes on Native American Sovereignty and the Native American Rights Fund (NARF)

Understanding Native American Sovereignty

  • Native American sovereignty is a critical and often misunderstood aspect of American governance.

    • Treaties = agreements between sovereign nations.

    • Indian tribes are recognized as sovereign governments, predating the sovereignty of the U.S.

U.S. Government Structure Regarding Tribes

  • The U.S. consists of three sovereign entities:

    • Federal government

    • State governments

    • Tribal governments

  • The U.S. Supreme Court acknowledges tribal governments as the oldest sovereigns on the continent.

The Native American Rights Fund (NARF)

  • Established in 1970 for legal defense of Indian rights.

    • Initiated by tribal leaders and lawyers recognizing the need for national legal advocacy.

    • Supported by the Ford Foundation during the Civil Rights Movement, focusing on civil rights tied to Indian treaty rights.

  • Developed from 1960s Indian legal services programs aimed at providing legal representation to impoverished groups.

Early Cases and Achievements by NARF

  • Menominee Tribe Case:

    • NARF represented the terminated Menominee Tribe, facing loss of land and welfare reliance.

    • Result: Menominee Restoration Act (1973) restored recognition and land to the tribe.

  • Domestic Dependent Nations Doctrine (1831):

    • U.S. Supreme Court ruled that Indian nations are domestic dependent nations under federal jurisdiction.

    • Significant cases set limits on state laws in Indian Country.

  • Fishing Rights Case (1970):

    • Tribes in Puget Sound retained treaty rights to fish and co-management with the state.

    • Resulted in federal court ruling that established indigenous co-management of fisheries.

  • Eastern Tribal Land Claims:

    • Based on 1790 Nonintercourse Act; invalidated unapproved land transactions with tribes.

    • Major settlements resulted in restoration of land and federal recognition for tribes (e.g., Passamaquoddy and Penobscot Tribes).

Tribal Sovereignty in Gambling

  • Cabazon Band Case (1987):

    • Supreme Court ruling that California could not regulate tribal gaming operations.

    • Led to the Indian Gaming Regulatory Act, affirming tribes' rights to conduct gaming and requiring compacts with states.

The Tribal Supreme Court Project

  • Formed in response to unfavorable Supreme Court rulings on tribal sovereignty.

  • Coordination between tribal leaders, attorneys, and law professors to improve outcomes for Indian cases in the Supreme Court.

Challenges to Native Lands and Rights

  • Narragansett Tribe Case (2009):

    • Supreme Court ruling that limited the 1934 Indian Reorganization Act's applicability, creating disparities among tribes regarding land trust.

    • Many tribes continue to advocate for legislative action to clarify their rights.

  • Violence Against Women Act (2013):

    • Legislative efforts to extend tribal jurisdiction over non-Indians committing crimes against Native women.

  • Indian Child Welfare Act (1978):

    • Aims to protect Native children from state intervention.

    • Recent Supreme Court cases challenge its applicability, raising concerns about the future of Native families.

Global Context of Indigenous Rights

  • UN Declaration on the Rights of Indigenous Peoples (2007):

    • Recognizes the rights of indigenous peoples globally to self-determination and cultural preservation.

    • The U.S. initially opposed but later endorsed the Declaration in 2010.

  • Ongoing involvement of NARF in advocating for tribal rights at international level.

The legal cases and legislative actions discussed were primarily used to:

  1. Protect and Assert Tribal Sovereignty: Cases like the Cabazon Band case affirmed tribal rights to conduct gaming, leading to the Indian Gaming Regulatory Act.

  2. Restore and Protect Land Rights: Cases such as the Menominee Tribe case and Eastern Tribal Land Claims resulted in the restoration of land and federal recognition for tribes.

  3. Ensure Fishing Rights: The Fishing Rights Case in 1970 established indigenous co-management of fisheries.

  4. Address Injustices and Disparities: Actions like the Violence Against Women Act (2013) aimed to extend tribal jurisdiction over crimes against Native women.

  5. Protect Native Children and Families: The Indian Child Welfare Act (1978) was designed to protect Native children from state intervention, although its applicability has faced recent challenges.

  6. Invalidate Unapproved Land Transactions: The 1790 Nonintercourse Act was used as a basis to invalidate land transactions not approved by the federal government.