The Future of Native American Civil Rights

I was very honored to receive the Thurgood Marshall Award at the ABA Annual Meeting in Denver, Colorado, in August 2023. It was recognition of me and of the Native American Rights Fund, the nonprofit national Indian legal defense fund that I have worked for over the past 53 years, serving consecutively as executive director since 1977. All of our staff, board members, clients, and donors over these last 53 years deserve recognition for their great work and support that have advanced Native American civil rights.

The Native American Rights Fund was founded in 1970 during the civil rights movement to provide free legal advice and assistance to Native American tribes, organizations, and individuals on major issues involving Indian rights. Nineteen-seventy was also the year that President Richard Nixon announced the new federal Indian policy of Indian self-determination and recognition of Tribal sovereignty, changing the old policy of termination of tribes and forcing the assimilation of Indians into mainstream society. Our Board of Directors, consisting of Native American leaders from across the country, established a set of priorities for us to address in accepting requests for assistance. Those priorities were preserving Tribal existence; protecting Tribal natural resources; promoting Native American human rights; holding governments accountable to Native Americans; developing Indian law; and educating the public about Indian rights, laws, and issues.

We took on a big Indian treaty rights case right away. The U.S. v. Washington case involved the tribes in western Washington and their rights under the treaties to fish the way they had traditionally done. They always depended on the salmon there, and they had a treaty provision that allowed them to continue to fish at their usual and accustomed places, in common with the citizens of the state. This language had been interpreted by the state to mean the Indians had to get a fishing license just like everybody else, but that was not the way the tribes had understood the treaty language. That’s the argument we brought forward in the court. The tribes, of course, started with all the fish before the state began, and the tribes agreed to share half of the fish with the state; that was what the treaty provision meant, the court ruled. The tribes went from getting 2 percent of the fish to 50 percent of the fish, comanaging the fishery with the state of Washington. That was a treaty right. Everybody took note of the fact that these Indian treaties were not ancient history. They were the supreme law of the land under the Constitution. Other treaty cases followed that we all worked on.

We also undertook representation of the Menominee Nation in Wisconsin. They were one of the tribes terminated by the federal government during the termination era that began in the 1950s. Congress felt that this was going to be good for the Menominee Nation, doing away with their reservation and forcing them to assimilate was going to help them. But it didn’t happen that way—they became the poorest of the poor. We helped them go to Congress and tell their story—that termination did not work the way Congress thought it would. Remarkably, Congress understood and restored the Menominee Nation and the reservation. Other terminated tribes had the same experience with termination and were then also able to be restored by Congress.

Another one of the early cases that we undertook was for tribes in Maine, the Passamaquoddy and Penobscot. They came to us, knocked on our door, and told us who they were. We looked at the Bureau of Indian Affairs map with all of the reservations, and there were virtually no tribes in the East. They showed us their history and how they had all of these relationships early on with the federal government. But the State of Maine took over a long time ago and took their land without the federal government doing anything about it. We discovered the 1790 Non-Intercourse Act, which basically said there would be no land transactions with tribes unless they were approved by the federal government. So, we took the tribes to court with that law, and the court ruled that the State of Maine had to return the land to the tribes—about two-thirds of the State of Maine. The tribes won on appeal, and the case was headed to the Supreme Court. President Jimmy Carter convened the tribes and the State of Maine at the White House to talk about settlement. A settlement was eventually reached and approved by Congress that provided for much of the land being returned to the tribes, payment for the land not returned, and federal recognition for the tribes. Several other eastern tribes had similar experiences with their states. We helped them bring similar cases, and those cases also eventually got settled like the Maine case.

These cases are just three examples of all the great casework that we and others did under federal Indian law asserting the rights of Native Americans. We saw an inordinate number of federal Indian law cases in the U.S. Supreme Court in the 1970s and ’80s. For the most part, the Indians prevailed in those cases, which drove the modern-day Tribal sovereignty movement.

When we are not representing tribes in the Supreme Court, we usually file amicus curiae friend of the court briefs for tribes in federal Indian law cases that the Supreme Court takes. Perhaps the most famous case that people ask us about is the case that had to do with tribes getting into gaming and having the right to open casinos. This was the case that the Supreme Court decided in favor of the tribes in 1987 in California v. Cabazon Band of Mission Indians (480 U.S. 202, 1987) because tribes are sovereign governments like states, so they can generate governmental revenues through gaming just like states. States have no jurisdiction over tribes. That really changed things, and now the biggest economic driver in Indian country is gaming.