Rebuilding the Indian Nations
By enforcing old treaties and laws, John Echohawk and NARF restore tribal sovereignty. INTERVIEW
BOULDER, COLO. — LAW school was a revelation to John E. Echohawk, a Pawnee. As a student at the University of New Mexico in the mid-1960s he discovered a body of laws governing Indian affairs that he had never heard about. ``Our tribal leaders knew nothing about the laws that already existed,'' recounts Mr. Echohawk, relaxing in the lawbook-lined conference room of the Native American Rights Fund (NARF) offices here. ``None of us knew. We were not informed about them in school. A law doesn't do any good until it is enforced. So we had to learn the legal process.''
There were but 20 American Indian lawyers in the practice at the time. The only Indian law casebook was a loose-leaf collection of federal statutes and Indian treaties assembled by a law professor at the University of California, Los Angeles.
Today, there are perhaps 700 American Indian lawyers practicing. And the nonprofit organization Mr. Echohawk helped found 20 years ago has worked to enforce the existing laws on behalf of more than 75 tribes and Eskimo communities, NARF clients.
Perhaps the primary achievement of the organization has been to restore the sovereignty of American Indian nations.
``There has been more litigation in the last 20 years than in the previous 200 on behalf of the Indians,'' says Echohawk, who has been director of NARF for the past 15 years. ``Federal policy now recognizes the right of Indian people to self-determination - the right to control our own affairs.''
It hasn't been easy. NARF's all-Indian board of directors decides which cases the 18-lawyer organization will take up - cases that often drag on for years and absorb lots of cash. Fees make up only about 5 percent of the operating costs for the nonprofit group. The rest comes from government grants, individual contributions, and corporate funding.
``There are few lawyers and very little money,'' says Echohawk. ``So those priorities involve those issues most important to Indian country.'' (Echohawk would not comment on the ongoing Mohawk Indian dispute in Canada, saying NARF deals only with United States Indian affairs.)
Sovereignty issues include tribal status, natural resources jurisdiction, education, and the ``right of Indian people to live as Indians,'' says Ecohawk.
NARF has represented various tribes wishing to regain their status as tribes. One precedent-setting case involved the Menominee tribe of Wisconsin. Congress had terminated the Menominees' status as a tribal government in the 1950s as part of a policy aimed at cultural assimilation and dismantling the Bureau of Indian Affairs. Without federal protection, the tribe was subject only to state laws, including taxation. Tribal members were forced to sell off land to pay taxes.
``We made the case to Congress that the termination decision had been disastrous to the people who had lost much of their land,'' Echohawk says. ``In 1973 there was a dramatic reversal and the tribe's status was restored to them. Since then, a dozen or so other tribes have had their status restored. We've handled two or three ourselves.''
Most of these cases have involved battles of jurisdiction between the states and the federal government to regulate activities on the reservations. States can no longer levy taxes on the reservation, but tribal governments may. (No one escapes the Internal Revenue Service.)
Tribal sovereignty also confers tribal jurisdiction over civil and criminal (misdemeanors) cases involving tribal members living on the reservation.
The second priority of NARF's board of directors is the preservation of natural resources and the protection of land, mineral, water, and fishing rights. Land rights are based on treaties.
``Treaties are made between governments,'' Echohawk says. ``The treaties made between the tribes and the US government are not just ancient history; they are the law of the land. Indian tribes are the oldest sovereign governments in the country. They predate the US government.''
One of the landmark cases NARF litigated involved tribes in western Washington state that sued for restoration of fishing rights established by treaty in 1855. The federal government agreed that the states had no right to overrule the treaty's agreement that ``the tribes retain the right to fish at their usual and accustomed sites off the reservation in common with other citizens.''
The legal interpretation of that agreement gave the tribes 50 percent of the fishing rights, which included commercial salmon fishing. The decision was upheld by the United States Supreme Court in 1979.
``Some non-Indians were put out of business,'' Echohawk says, ``but tribal governments are now recognized as co-managers of that fishing resource. And when it came time to negotiate the Pacific salmon treaty with Canada, Indian representatives were included in the US delegation.''
Another area of great concern is religious freedom. ``Over the years, other religions have come to acknowledge the legitimacy of Indian religions and have seen that - sometimes - their own religions have played a role in the destruction of traditional Indian culture. They have apologized,'' Echohawk says.
The organization successfully helped pass legislation in Nebraska and Kansas to stop the desecration of Indian remains and burial goods. Indian religious freedoms were set back by the recent Supreme Court decision that the Native American Church had no right to use the hallucinogen peyote in its rituals if state governments objected. The ruling is being countered by the introduction of legislation.
Education is another important Indian concern. Slowly, American Indians are acquiring more control over curriculums in reservation schools. More and more Indian children are being educated in public schools rather than the Bureau of Indian Affairs (BIA) boarding schools that for generations had removed Indian children from their homes and sent them away - sometimes to return only years later. Echohawk estimates that only 10 percent of Indian schools are still BIA, where once they were all BIA.
A recent case involving the Redbud Sioux of South Dakota established joint tribe-state authority over a public school on reservation land, a decision that Echohawk says may be a model for the rest of the country.