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The University of Dayton

 

   
   

 

 

Native American Struggles in Reclaiming their Land
Annotated Bibliography
 

Edward Blakemore
The University of Dayton School of Law
Spring 1998

Introduction

This research opened my eyes to the continuous struggles which Native Americans must fight just to get ownership of land they were promised years ago. While there seems to be some hope for the future in that some claims like those of Canada's Indian population are being recognized and appreciated, many other groups are still losing their land to this day. Historically, Native Americans have had a much higher appreciation for the land and what it can provide them. They attach a spiritual component to their land and, as a result, approach the relinquishment or sale of those lands with great apprehension. 
 

This report indicates that local and national legislatures are becoming less willing to afford Native Americans the protections to which they've become accustomed. There is legislation pending to overrule the trust acquisition component of the Department of the Interior. This opportunity has done much to help Native Americans secure land which their economic status would not otherwise permit. The conservative political tide seems bent on trying to, once and for all, destroy what little pride and self-esteem remains within these communities. 
 

Native Americans are still being taken advantage of to this day. What little portion of land they've been permitted to inhabit by the US government is being reacquired for use as toxic waste sites. Scientists have even come forward to contend the effects of living near this waste are not harmful. Americans must ask themselves if these practices would be similarly condoned in white communities. 
 

Native Americans are in dire need of a strong and powerful voice. They need some influential groups to assist them with their strategies to fend off whites who want to harm their interests. Since Native American communities are synonymous with poverty, they don't have the influence necessary to change these problems on their own. The American people must come forward and aid Native Americans in their quest for self-determination and sovereignty. The time has come for us to stand up and say the abuses must stop. The United States must acknowledge our past treaties and let them manage their lives independent of harmful white influences. We can't afford to allow this excellent cultural resource to be continually raped of its land and self-esteem while we stand by idly. 



The following articles are included in this bibliography:
 

 President Clinton's Executive Order on Indian Sacred Sites

Native Rights Defined

Lieberman Introduces Bill to Limit Native American Annexation

Sovereignty and Treaty Rights

Indian Tribes and the Legal System

Ward Valley Land Transfer

National American Graves Protection and Repatriation Act

New York Assembly Bill 5850

Dinosaurs and Indefinite Land Trusts: A Review of Individual American Indian Property Rights Amidst the Legacy of Allotment

South Dakota v. United States Department of Interior: Another Broken Promise to the United States Indians

Native Americans Resist Forced Relocation


Annotation

 Clinton, Bill, "President Clinton's Executive Order on Indian Sacred Sites," White House Press Release, May 24, 1996. 

The President articulates his position that each executive branch with responsibility toward federal lands management allow Native Americans full access to these sites for religious purposes and avoid altering the physical makeup of these locations. He mandates that federal access to these lands be restricted to achieve this objective. This executive order demonstrates the liberal democratic viewpoint which is continually trying to accommodate the needs of Native Americans while not affording them unnecessary and extra benefits. 



Editorial Board, "Native Rights Defined," The Toronto Star, December 14, 1997. 

This editorial discussed the impact of a recent Canadian Supreme Court ruling which held that Canada's Indians have an ownership right over the land which they occupied prior to colonization by the Europeans. The Court determined that based on the Indians' prior presence and distinctive culture, they had aboriginal title to the land. While these native groups are quite pleased with these new developments, mining companies which previously operated with reckless abandon now fear for their livelihood since their access to the land will soon be restricted. These native tribes now must make claims to these ancestral lands which will undoubtedly be fought out in court. The Indians are able to make these claims because they never relinquished their title to the land when European colonization began, and as a result, still have good title. 



"Lieberman Introduces Bill to Limit Native American Annexation," Associated Press, October 28, 1997. 

Senator Joseph Lieberman introduced a bill which would deny some Indian tribes the right to acquire land in trust for commercial or gaming purposes. This legislation would overrule the current statute which enables the Secretary of the Interior to place lands outside their reservation, within a trust for tribes to use commercially. This legislation comes on the heels of a 1995 appellate court case which held that power unconstitutional. Mr. Lieberman's bill seeks to eliminate that practice. He points to the Mashantucket Pequot tribe which has made several petitions for this action despite having a reported revenue of over $1 billion due to their extensive Connecticut gambling casinos. Lieberman indicates that the time for a helping hand is now gone since many tribes have become self-sufficient and thus no longer need the government's assistance. 



Jemison, G. Peter, "Sovereignty and Treaty Rights-- We Remember," 1995 WL 15273053, Akwesasne Notes, December 31, 1995. 

This author reviews the history of Europeans and Native Americans as it relates to their treaties which, despite being agreed to by both parties, have rarely been fully enforced. He focuses much of his discussion on the Canandaigua Treaty of 1794 which was made between several Iroquois nations and Europeans residing in the state of New York. This accord gave these nations aboriginal land rights as well as sovereignty to control their own lands and destinies. In return, they recognized the sovereignty of the United States government. While the treaty has been frequently violated, the United States has never broken the agreement. These land rights are of particular concern since the US government has treated some of the land as a dumping ground for toxic waste. These tribes are now recognizing the importance of maintaining their rights to this land by forcing the government to acknowledge their aboriginal title and allowing them to independently maintain the land from this point forward. 



Johnson, Ralph W., "Indian Tribes and the Legal System," 72 Wash. L. Rev. 1021, October, 1997. 
 

Mr. Johnson documents the extensive negative history the involvement of white people in Native American affairs has created for Indians. The article indicates that the more whites have involved themselves in the lives of native Americans, the worse their group situation has become. The author argues that whites have imposed their own paradigm in the solutions which they have mandated Native Americans use for their own self-determination. Because Europeans and Native Americans see the world so differently, they seem unable to pose effective solutions for each other. As a result, he argues whites should leave Native Americans to solve their own problems without the mandated intervention of whites. 
 

When the system has not had white intervention, Native Americans have succeeded. He points to the tribal court system as an example of programs which have flourished and offered them additional pride because of its success. Despite efforts on the part of whites to eliminate Indians from this country, they are still surviving in many states. They have demonstrated a survival instinct which is practically unparalleled in American history. 



Editorial Board, "Ward Valley Land Transfer," Los Angeles Times, April 4, 1997. 

Congress is trying to transfer a site known as Ward Valley from the Federal Government to the state of California. They want the land transferred to build a toxic waste dump on the site. The author is concerned that this measure might pass and harm the water supply since it is only 20 miles away from the Colorado River. The author is also opposed because the Ward Valley site is sacred land for Colorado River Indian tribes. Turning this land into a waste site would undoubtedly harm the land which is the home to several reservations including the Fort Mojave and Chemehuevi. The author cites additional articles which indicate there is little need for additional waste sites and thus question the feasibility of building more which could decimate Indian land. 



Inouye, Daniel, National American Graves Protection and Repatriation Act, 1998 
 

The Hawaiian senator has introduced his pending legislation which prohibits the removal or excavation human remains from Federal or tribal lands unless the Native American tribes have consented to the activity. This act would overrule the current practice which permits people to enter these areas with abandon. The Act also would set up a monitoring agency which would evaluate the inventory of the people who enter these sites to ensure they comply with the Act's requirements. Violation of this statute would subject the perpetrator to both criminal and civil penalties. 



New York Assembly Bill 5850, State of New York, Senate Assembly, 1997-1998 Regular Sessions. 

This state statute places additional restrictions on the sale of Native American land within the state of New York. Previously, Native Americans who owned their land were able to distribute it as they saw fit. Now the state of New York has enacted this law which says that any sale of Indian land must be approved by the state legislature. In addition, any outstanding claims concerning Native American land must be resolved through the sate legislature and all claims done without its express consent are invalid. 

 



Poindexter, Mark D., "Dinosaurs and Indefinite Land Trusts: A Review of Individual American Indian Property Rights Amidst the Legacy of Allotment, 14 B.C. Third World L. J. 53, Winter, 1994. 
 

This article documents the history of white involvement in Native American affairs over the past few centuries. White Americans wanted to make Native Americans assimilate into the larger culture by making them a self-sufficient agrarian people. This author blames the fate of the Native American upon themselves since they did not keep their property when it was allocated under the Allotment Act. He argues the aim of the legislation had been to protect them form the losing their lands but they voluntarily sold them to the highest bidder rather than retain them for future growth. He contends that by attempting to help Native Americans we are interfering in their attempt at sovereignty and self-determination. He argues that the government should distance itself from Native American land rights issues and let them fight it out in the court system. 



Roff, Jessica, "South Dakota v. United States Department of Interior: Another Broken Promise to the United States Indians," 49 Admin. L. Rev. 453, Spring, 1997. 
 

This article discusses an appeals case which held the Secretary of the Interior's power to hold lands in trust for Native Americans an unconstitutional delegation of power. The court overruled a 60 year-old statute, the Indian Reorganization Act, which authorized Native American trust acquisition. The author also indicated this is only the second time in history where a statute has been invalidated as an unconstitutional grand of power. There is a fierce debate over why this rarely-utilized doctrine suddenly resurfaced to be used against Native American interests. This decision could be the first brick in a rapidly-forming wall of precedent which seeks to eliminate time-honored privileges associated with Native Americans. 



Walker, Cam, "Native Americans Resist Forced Relocation," Green Left Weekly, April, 1997. 

The US government has begun an eviction process against the Navajo from areas of New Mexico and Arizona. These Navajo reside on top of a large supply of coal and uranium. If these tribes don't move, mining companies will be unable to seize the profits associated with these precious resources. Congress passed a Relocation Act a few years ago but did not enforce it immediately but all the Native Americans residing on the land who remained automatically became trespassers. Some of the government employees resigned rather than participate in forcing the people out. 
 

Those people living there are forbidden to repair their homes and are denied basic services like running water. Now that the government wants to fully enforce the Act, the residents are being harassed by both mining company employees and government units. There is the potential that force will be used to evict these residents despite their valid claim to the land prior to the Act. 

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