chevron-down Created with Sketch Beta.
October 14, 2021

Native American Concerns Questions and Answers

Video: Rights of Indigenous Students to Address the Use of Mascots

Q: Many Schools use Native American mascots. What are my rights as an Indigenous student addressing this?" Isabella from Oklahoma

A: Native American Concerns Committee Vice Chair Heather Torres answers this question from Isabella, a high school student from Oklahoma, " Many Schools use Native American mascots. What are my rights as an Indigenous student addressing this?"  in the video above.

Rights to Wear Tribal Regalia

Q: I will be graduating next year. What are my rights to wear traditional tribal regalia at graduation?  Isabella from Oklahoma


Edit to add (5/2024) additional resources related to Tribal Regalia: WEARING EAGLE FEATHERS AT GRADUATION, Native American Rights Fund | Resources for graduating high school students and families to help ensure that they can wear eagle feathers during their commencement ceremony.

Thank you for your question, Isabella. Wearing regalia at graduation is a way that many indigenous students express the academic, religious, and cultural significance of graduation to them and their families. Many students choose to express their identity at graduation by wearing eagle feathers affixed to their graduation cap, wearing their moccasins, or wearing beadwork or other cultural items. 

There is no one policy or law nationwide that assures Indigenous students the right to wear regalia, however, Native American attorneys argue that as a religious practice or a part of a student’s speech, should be protected under the First Amendment under the United States Constitution. The Bald and Golden Eagle Protection Act recognizes the religious significance of eagle feathers in Native American culture and Tribes.  16 U.S.C. 668-668. 

In Arizona, California, Montana, North Dakota, and South Dakota, laws have been introduced or passed to protect the rights of Native students to wear regalia. In Washington, Oregon, and Oklahoma, public officials in executive offices have issued policy guidance that Native American students should be allowed to wear items of cultural significance to graduation. 

Where the decisions about students wearing regalia are more commonly made are at the school board level. 

If Native American students plan to wear regalia at graduation, it is important to learn that policy as soon as possible. If the policy needs to be changed, it is important to learn as early as possible to mobilize to change it. Consult your student handbook, ask your school administration early, learn about any process there is to request an exemption to the dress code. It may be uncomfortable, but you would be advocating for all students behind you. 

Judicial System Governing Tribal Lands

Q:  Is there a different judicial system that governs tribal lands? Jacqueline from California

A: Great question!  There are different judicial systems that govern tribal lands. Tribes exist within the United States as quasi-sovereign nations. They have been characterized as “domestic dependent nations,” and thereby possess inherent sovereignty. Cherokee Nation v. Georgia, 30 U.S. 1 (1831). They possess the authority to make their own laws and be governed by them. Talton v. Mayes, 163 U.S. 376 (1896). Their sovereignty is distinct from the United States. Because tribes were not invited to the Constitutional Convention, the U.S. Constitution does not apply to tribes. U.S. v. Wheeler, 435 U.S. 313 (1978). Tribes can, and many do, operate their own tribal justice systems. These courts enforce tribal law, including tribal constitutions (if a tribe has one), code, case law, and custom and tradition.

While tribes are sovereign, they are not without limitation. The “domestic dependent” portion of domestic dependent nation has been interpreted to include extensive federal powers over Indian affairs. Art. I, Sec. 8, Cl. 3. Lone Wolf v. Hitchcock, 187 U.S. 553 (1903). Through these powers, Congress has placed severe limitations on the extent to which tribal justice systems can operate, such as sentencing limitations. Indian Civil Rights Act, 25 U.S.C. § 1302. Meanwhile, the U.S. Supreme Court has found major limitations on tribal jurisdiction, such as no criminal jurisdiction over non-Indians. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). Also see Montana v. United States, 450 U.S. 544 (1981) regarding limitations on tribal civil jurisdiction.

Meanwhile, tribes no longer exercise exclusive jurisdiction on tribal lands. Depending on the state, the tribe, the status of the land, the race of perpetrator, the race of the victim, and the nature of the alleged crime or subject-matter of the disputed issue, the state and/or the federal government may also have jurisdiction. The practical effect is that tribal courts provide extensive services to their communities while also collaborating with state and federal agencies.

Native American Civil Rights

Q: Do Native Americans have different civil rights than United States citizens? Jacqueline from California

A: Native Americans have different civil rights, sort of. Native Americans are effectively dual citizens. They are both citizens of the United States and citizens of their tribal nations. As citizens of the United States, Native American enjoy all the rights and privileges as all other U.S. citizens, such as freedom of religion and speech. Indian Citizenship Act of 1924. The federal and state governments are obligated to uphold constitutional protections of Native Americans.

However, tribal governments have distinct sovereignty from that of the United States. They are not required to uphold U.S. constitutional protections for individuals. Instead, tribes are required to uphold civil right protections as required by tribal law. This will differ tribe-by-tribe.

Congress requires that tribes provide civil rights protections that are comparable to the U.S. Constitution. Indian Civil Rights Act, 25 U.S.C. §§ 1301-1304. The Indian Civil Rights Act (ICRA) includes many similar protections to the U.S. Constitution, such as freedom of religion, freedom of speech, equal protection, and due process. However, while the words may be similar, the legal force of ICRA differs from U.S. constitutional law. Outside of those who are being held in jail, a person cannot take a tribal government to U.S. federal court for alleged ICRA violations. Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978). Instead, allegations that a tribe violated an ICRA civil right must be litigated in tribal court, based on tribal law.

Therefore, Native Americans have the same civil right protections as all other U.S. citizens off of tribal lands. However, on tribal lands, Native Americans, as well as all others on tribal lands, have civil rights protections as interpreted and enforced by the tribe.    

Advocating for Change in Alaska

Q: How can we ensure that Alaska Natives are provided due process and more access by the State of Alaska when we are attempting to address and fix our legal issues and complaints? Rebekah from Alaska

A: The question of due process and more access within State systems in Alaska for Alaska Natives is without question an ongoing struggle.  How can it be improved and protected? 

One way to answer this question is to look at the institutions and systems that Alaska Natives have built within the State that accomplish these objectives.  The Indian Health Service (IHS), which helps administer the complex health care system and is mandated by the federal government’s trust responsibility to American Indians and Alaska Natives, often points to the Alaska Tribal Health System as a positive example of an effective health care system.  The right to access to health care is a civil right, and Alaska Natives have made great strides in providing health care in remote corners of the State and through the state-of-the-art Alaska Native Medical Center.

Another example is in the area of justice.  Alaska Native interests worked for years with the State to negotiate a framework for a statewide commitment to a Civil Diversion Agreement (CDA).  The framework, then, allows for individual Alaska Native villages and tribal governments/organizations to agree with the State that certain low-level offenders of State laws can choose whether they want their case decided in State court or in Tribal court.  This is hugely important from a due process and civil rights perspective because in Alaska there are a large number of small communities that have no law enforcement presence, or it is through Village Public Safety Officer (VPSO) programs, that are often poorly funded and supported.  For a large number of communities in Alaska, the highest functioning local government is the tribal government.

Through the implementation of CDAs, Alaska Natives can choose to utilize Tribal Courts to hear matters, which may mean that instead of having rights decided in State court, or punishment meted out by State officials, Tribal Courts may use customs, traditions, and often restorative forms of justice to deal with offenses and rehabilitation of offenders.  This can be a hugely important mechanism in dealing with young Alaska Natives, who may respond better to tribal justice systems.

Alaska Native advocacy have led to increased federal focus on justice in Alaska, as highlighted in The Attorney General’s Advisory Committee Report and the Indian Law & Order Commission’s A Roadmap For Making Native America Safer.

Tribal governments in Alaska are similarly working hard to develop new and innovative ways to use tribal Social Services staff and tribal courts in Indian Child Welfare Act (ICWA) cases.  This can mean negotiating Memoranda of Agreement (MOAs) or other agreements with the State Department of Health and Social Services (DHSS) which frequently handles child welfare matters in the State of Alaska.  Alaska Natives, through tribal governments and tribal consortia, have sought to use such agreements to provide for stronger tribal oversight over child welfare matters, including foster placement, child protection, adoption, and other matters impacting Alaska Native children.  This frequently means that Alaska Native parents, and their children, have access to greater support from tribal governments, and the State DHSS has to recognize the role of tribal governments in cases it handles involving Alaska Natives.  From 2014-2018 Valerie Davidson (Yupik) served as the Commissioner of the State DHSS.

What all these examples point to, in terms of protecting Alaska Native due process and rights within the State, is a growing network of tribal governments, tribal organizations, Alaska Native leaders, and institutions within the State like the Alaska Native Tribal Health Consortium, the Alaska Federation of Natives, and others that are creating new pathways for Alaska Natives.  This growing network is consistently sharing ideas about ways to improve health care, education, justice systems, subsistence rights, child welfare rights, and economic and social equality access for Alaska Natives.  Young people, like yourself, who ask the hard questions and demand justice for Alaska Natives will carry these positive steps forward.

Alaska Natives' Rights

Q: The 1971 Alaska Native Claims Settlement Act (ANCSA), which put Alaska Native territory under state law, gave the State of Alaska the ability to allow the Non-Native fishing and hunting industries to take huge over bounties of fish and wildlife which destroy ecosystems and to also limit the ability of Alaska Natives to practice traditional ways of life.  How can we ensure that Alaska Natives receive due process from the State of Alaska when practicing our traditional ways of life including subsistence hunting and fishing rights? Rebekah from Alaska

A: This is a very thoughtful question you have posed about very important issues for Alaska Natives, as well as all Alaska residents.  Your question hits on not only civil rights to hunt and fish, but also the civil rights to healthy ecosystems.

You correctly note that the landmark legislation of the Alaska Native Claims Settlement Act (ANCSA) set the stage for ongoing conflict over Alaska Natives’ rights to continue to access lands and natural resources, exercise subsistence rights, and ultimately to practice their culture on their ancestral homelands.  But the question of the civil rights of Alaska Natives goes back much further.  For example, it wasn’t until 1924 that Alaska Natives were granted U.S. citizenship.  David S. Case, Alaska Natives and American Laws, revised edition (Fairbanks, Univ. of Alaska Press, 1984), 406.  When Alaska became a state on January 3, 1959, its Constitution included pronouncements of equal rights to all people to its resources, with Article VIII, Section 3 stating, “Wherever occurring in their natural state, fish, wildlife, and waters are reserved to the people for common use.”

But what that meant, in practice, was that the State wanted to limit rights such as pre-existing Alaska Native rights to the subsistence they had practiced on their lands and waters since time immemorial.  The Alaska Constitution also included Article VIII, Section 15, which stated that “No exclusive right or special privilege of fishery shall be created or authorized in the natural waters of the State.”  And Section 17 of that same Article made a similar finding that “Laws and regulations governing the use or disposal of natural resources shall apply equally to all purposes similarly situated with reference to the subject matter and purpose to be served by the law or regulation.”  The State has, following this language, long taken the position that Alaska intended to provide equal rights to all citizens—Native, non-native, rural, urban, etc.—to natural resources, including hunting and fishing rights.  So even prior to the passage of ANCSA, there was substantial momentum within the relatively newly formed state government to rule out recognition of pre-existing Alaska Native rights.

As resource extraction and other areas of Alaska’s economy began to grow following statehood, population demographics and development pressures substantially impacted Alaska Natives.  Section 6(e) of the Alaska Statehood Act essentially reserved to the federal government the responsibility to oversee Alaska fish and wildlife resources until the State could develop its own system, which it did with the creation of the Alaska Board of Fish and Game (later separated) in 1960.  But with the ongoing federal oversight and federal involvement in governing and ensuring Alaska Native interests through the federal trust responsibility throughout the period leading up to and following passage of ANCSA, there has been an ongoing tension between the State and federal government in subsistence rights for Alaska Natives.

Ultimately, the answer to your question regarding Alaska Native due process to hunting and fishing, post-ANCSA, lies in this State-federal balance, as well as Alaska Native advocacy for the state to balance commercial rights to fish and game with Alaska Native subsistence.  The federal-state balance was the subject of the Alaska National Interest Lands Conservation Act (ANILCA), which Congress passed in 1980.  While not preserving Alaska Native rights, ANILCA was intended, under Title VIII, to protect the “subsistence way of life by residents of rural Alaska[.]” This federal subsistence priority has subsequently come into conflict with the state’s desire to control fish and wildlife—and enforce the supposed “equal rights” to resources in its Constitution—at the exclusion of the federal government. Alaska Natives have sought to use ANILCA, their pre-existing rights, and legal and other advocacy to fight for Alaska Native subsistence.  Alaska Natives have achieved at least some gains through court decisions such as the Katie John case, in which vast stretches of Alaska, through federal lands and waters, were deemed to include federal priorities regarding subsistence under ANILCA, including the rural priority and some federal obligations for Alaska Native subsistence use.

Going forward, further litigation to preserve rights may be necessary.  Continued federal support for subsistence rights in Alaska is necessary, through not only balancing with the State of Alaska, but international advocacy as well.  Where there are active commercial fisheries in the state, ideally in the future Alaska Natives can also be provided access to capital to secure rights, such as community development quota (CDQ) allocations, which might then bring balance to the fisheries management process within the State, at least insofar as large commercial interests dominate the Alaska Board of Fish.

Fight Back Against Violence

Q: How can the Asian-American and Pacific Islander communities fight back against the increasing attacks against their communities? Is there a legal way to ensure these attacks don’t go unnoticed? a high school student from Pennsylvania

A: There are many steps you can take to fight back against the increasing attacks as well as gain visability  so these attacks don't go unnoticed.

1. Know your Rights

Knowing your rights will empower you to feel confident. By knowing your rights, you will be armed with tools to demonstrate that you too should be treated with dignity and respect. 

2. Utilize the Power of Social Media

A key component to effectuating meaningful change is communicating calls for reform to the widest audience possible. Social media is a free, easily accessible platform that reaches persons all around the globe. After a police killing, we typically hear about the incident for a few days and around key milestones in any resulting legal proceeding. Shortly thereafter, the story fades away from news cycle. Utilizing social media can provide the means for continuous dialogue once mainstream media stops covering an issue.

3. Contact Your Local Government

As Thomas Jefferson once said, “The government closest to the people serves the people best.” In our current political climate, this cannot be underscored enough. There is a wealth of opportunities for citizens to engage with their local government. You can testify at a public hearing, write a letter to your representative, or attend a town hall.

Many of the laws and policies that are developed by our legislatures come directly from issues raised by the community. We therefore must invest time and energy to contact our local lawmakers so they are aware that we will not allow these outrageous actions by our police departments to go unnoticed.

4. Volunteer in Your Community

Knowledge is power. When you know your rights, know how to influence your local government, and ultimately know your self-worth, you have the courage to demand change.  The unfortunate reality is that too many people are not in a position to absorb necessary resources or develop personal relationships with positive role models. If we each dedicated just a small amount of time to volunteer in our community on a regular basis, it would make a world of a difference. There are countless ways to do so — check out your local youth groups, senior centers, or nonprofit organizations. Our communities need us.

Collectively, we must serve as the influencing voice in the fight for justice.