Like a lot of the details of the United States his-torical relations with the indigenous inhabitants ofthis land, the story of the Indian boarding schoolpolicy of the United States government has largelybeen written out of the history books. Yet, this wasa major federal policy. And it had major impacts,positive and negative, on indigenous individuals,families, and communities. These impacts are stillfelt to this day. In retrospect, the policy was basedon flawed thinking – despite the fact that it wasclothed in at least the appearance of good inten-tion. The flawed basis of the policy was that the all-out elimination of what is uniquely “Native,”and full-scale assimilation into the dominant societyof the United States, was required in order toensure the survival of individuals of Nativedescent. The policy was, at its core, a policy of cultural genocide.

The negative impacts of the cultural genocidepersist today. United States Assistant Secretary forIndian Affairs Kevin Gover (Pawnee) observed in2000, when reflecting on the Bureau of IndianAffairs’ involvement in the policy:

“The trauma of shame, fear and anger haspassed from one generation to the next, andmanifests itself in the rampant alcoholism,drug abuse, and domestic violence that plagueIndian country. Many of our people live livesof unrelenting tragedy as Indian families sufferthe ruin of lives by alcoholism, suicides madeof shame and despair, and violent death at thehands of one another.”

Once it is admitted that the policy was flawedand harmful, steps can begin to be taken to allowfor healing. In fact, there are many models andexamples of how healing can be accomplishedwhen one culture or society harms another.

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Let All That is Indian Within You Die!

Let All That is Indian Within You Die! .......................................................... page 1Children in the Meadows and Wetlands.......................................................... page 9Case Updates .................................. page 12- Tribal Supreme Court Project- NARF Files Second Round of

Tribal Trust Fund SuitsNew NARF Board Member ............ page 12National Indian Law Library.......... page 13Calling Tribes to Action! ................ page 14NARF .............................................. page 15

Before. Carlisle Indian Industrial School Portrait ofTimber Yellow Robe, Henry Standing Bear and WoundedYellow Robe. image NAA INV 00606600 NationalAnthropological Archives, Smithsonian Institution.

Universally, those models of healing, of reconcilia-tion, require recognition of what happened andwho was responsible as a first step. In this case, theUnited States and major Christian church denom-inations are implicated as most responsible.Beyond that, however, the details remain to besorted out, as will be explained.

Beginning to create the circumstances in whichhealing can occur will require the NativeAmerican Rights Fund (NARF), along with manyothers working in the area, to turn back institu-tionalized ignorance of what happened, to disman-tle legal blockades constructed long ago and beingconstructed anew to protect individuals and insti-tutions from legal and financial responsibility, andto simply begin to uncover the truth of what hashappened. NARF is proud and excited to haverecently upped its efforts in this area—creating agroundbreaking effort to create the space for ournative nations to begin to heal from the boardingschool policy. As an integral part of the healingprocess, this will also allow the United States andothers involved in implementation of the policyover the decades the chance to heal from the dam-ages they caused and that they suffer from as well.

Native American children were forcibly abductedfrom their homes and put into Christian and gov-ernment run boarding schools beginning in themid 1800’s and continuing into the 1950’s. Thiswas done pursuant to a federal policy designed to"civilize" Indians and to stamp out Native cultures;a deliberate policy of ethnocide and cultural geno-cide. Cut off from their families and culture, thechildren were punished for speaking their Nativelanguages, banned from conducting traditional orcultural practices, shorn of traditional clothingand identity of their Native cultures, taught thattheir cultures and traditions were evil and sinful,and that they should be ashamed of being NativeAmerican. Placed often far from home, they werefrequently neglected or abused physically, sexual-ly, and psychologically. Generations of these chil-dren became the legacy of the federal boardingschool policy. They returned to their communi-ties, not as the Christianized farmers that theboarding school policy envisioned, but as deeplyscarred humans lacking the skills, community,parenting, extended family, language, and cultural

practices of those raised in their cultural context.

There has been scant recognition by the U.S. fed-eral government and church denominations thatinitiated and carried out this policy, and no accep-tance of responsibility for the indisputable factthat its purpose was cultural genocide. There areno apparent realistic legal avenues to seek redressor healing from the deep and enduring woundsinflicted both on the individuals and communitiesof tribal nations. Lawsuits by individuals havebeen turned aside, and unlike other countries thatimplemented similar policies – e.g. Canada, NewZealand and Australia – there has been no officialU.S. proposal for healing or reconciliation.

The U.S. Boarding School Policy

The goal of “civilization” of Native people was totransform them into “Americans” by assimilating

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After. Carlisle Indian Industrial School Portrait of TimberYellow Robe, Henry Standing Bear and Wounded YellowRobe. image NAAINV 00606700 National AnthropologicalArchives, Smithsonian Institution.

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them into mainstream American culture.Reforming adults who were fully acculturated intoNative ways and spiritual beliefs and practices wasseen as too daunting. Transforming the childrenwas a more promising goal.

The goal of transforming Native young peoplethrough assimilation is apparent in the earliesthistory of the colonies. The roots of attemptedassimilation through education lie deep in the history of the Virginia Colony, sanctioned by theAnglican Church as early as 1619. William andMary College was founded in 1693 as an Anglicanschool to serve the young men of the colonistsand Native Americans. Dartmouth College’s earli-est roots are in its Puritan founder’s desires toestablish a school for local Native men.

The federal Indian boarding school policy hasbeen a collaboration of the Christian churches andthe federal government since its earliest inception,beginning with the Indian Civilization Fund Act ofMarch 3, 1819. Thomas Lorraine McKenney, aQuaker, served as the first Superintendent ofIndian Trade starting in 1816 and was one of thekey figures in the development of American Indian

policy. It was McKenney who advocated for thefederal policy of education and civilizationthrough a network of schools to be run by the mis-sionary societies under the supervision of theSuperintendent of Indian Trade. He likely was thearchitect of the Civilization Act to “encourageactivities of benevolent societies in providingschools for the Indians ... and authorized an annu-al ‘civilization fund’ to stimulate and promote thiswork.”

The thrust of "civilization" of Native Americanswas to strip them of their traditions and customsand teach them the ways of the majority culture inmissionary schools, i.e., transform the childreninto Christian farmers or laborers. The churcheswere funded by the federal government to accom-plish this cultural genocide. The Bureau of IndianAffairs (BIA) was created in 1824 within theDepartment of War primarily to administer thefunds to the churches from the Civilization Fund.In 1824, the Indian Civilization Fund subsidized32 schools that enrolled more than 900 Indianchildren. By 1830, the Indian Civilization Fundsupported fifty-two schools with 1,512 enrolledstudents. Funds from Indian treaties augmented

Carlisle Indian Industrial School portrait of group of Navajo boys and one girl in uniform six months after arrival atschool. NAA INV 02292500. National Anthropological Archives, Smithsonian Institution.

the program, frequently without consultation withor consent of the Tribe signatory to the treaty.

During the 60 years between 1819 and 1879most of the Church-run schools were on or nearthe reservations or homelands of the NativeAmerican children. The children would returnhome either daily or on weekends to be with theirfamilies and communities. But the experience wasthat this resulted in children adhering to their cultural practices and beliefs. In order to eradicatethese practices and beliefs it would become thepolicy to isolate the children from their influence.In 1886 John B. Riley, Indian School Superin-tendent summed it up:

“If it be admitted that education affords thetrue solution to the Indian problem, then itmust be admitted that the boarding school isthe very key to the situation. However excel-lent the day school may be, whatever thequalifications of the teacher, or howeversuperior the facilities for instruction of thefew short hours spent in the day school is, toa great extent, offset by the habits, scenes andsurroundings at home — if a mere place toeat and live in can be called a home. Only bycomplete isolation of the Indian childfrom his savage antecedents can he besatisfactorily educated.”

Mere education was not enough. Separatingchildren from their family, their tribe, their cul-ture, and their homes on the reservation was seenas necessary to the larger goal of assimilatingthem into the majority culture.

The Struggle to “Civilize” the Native People

There was a debate about whether to extermi-nate the “wild” tribes that had not been confinedto a reservation, or to seek their conversion to a“civilized” life – by which was meant to beChristian farmers or craftsmen. The military andthe frontier settlers were the primary advocates ofthe former, and the churches the latter. It wasn’t aserious debate in the sense of impending strategy.While there were examples of barbaric slaughter ofNative people – e.g. Wounded Knee, Sand Creek,etc. – it was, in fact, simply too expensive to enter

into an extended campaign of genocide on theheels of an expensive Civil War. It was estimatedthat the annual cost to maintain a company ofUnited States Calvary in the field was $2,000,000.Whatever the standards of humanity, the economicsaugured for assimilation as the preferred alternative.

Among the frontier settlers, with largely squattersensibilities and values, was the occasional personof conscience that could see past their own self-interest in acquiring land and riches – to theincredible injustices visited on the Native peoplein the process of their dispossession of those verysame lands and riches. John Beeson, likely aQuaker, was one such person who lobbied tirelesslyto expose the erroneous depiction of the Indians asthe aggressors when it was the settlers who werein fact the transgressors against Indian lands andresources on the frontier. Beeson met severaltimes with President Abraham Lincoln andpressed upon him the idea that Indians shouldreceive instruction in every phase of the culturethat was displacing their own: Anglo-Americaneconomy, democratic self-government, and theChristian religion.

A contemporary of Beeson who worked towardthe same goal was Episcopal Bishop of MinnesotaHenry B. Whipple. In 1860 Whipple sent a letter toPresident Buchannan lamenting the evils of liquorand the inability and unwillingness of the federalgovernment to enforce the laws prohibiting its distribution among the tribes. He also observedthat the federal policy of treating the tribes as self-governing nations was mistaken; it would be better to regard Indians as wards and undertaketheir assimilation. Once the laws were enforced,practical Christian teachers could instruct themin agriculture and other arts of civilization. Moreimportant, he decried the corrupt patronage sys-tem of appointment of Indian agents that resultedin the looting of Indian resources, fraudulent con-tracts and sham schools that accomplished littlemore than to line the pockets of the Indian Agents.He sought a system that would allow for theappointment of “a commission of men of highcharacter, who have no political ends to subserve,”to which should be given the responsibility fordevising a more perfect system for administeringIndian affairs.

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The Board of Indian Commissioners and thePeace Policy of 1869

The changes sought by the reformers came tofruition in the year 1869. That year marked estab-lishment by Congress of the Board of IndianCommissioners and President Grant’s “PeacePolicy,” which included a federal boarding schoolpolicy. These efforts were intended to fulfill twoimportant goals: 1) the replacement of corruptgovernment officials, called the “Indian Ring,”with religious men, nominated by churches tooversee the Indian agencies on reservations; and2) to Christianize the Native tribes and eradicatetheir culture and religion, primarily throughremoval of the children from reservation settings.

The boarding school policy authorized the vol-untary and coerced removal of Native Americanchildren from their families for placement inboarding schools run by the government andChristian churches. The boarding school policyrepresented a shift from genocide of Indian peopleto a more defensible, but no less insidious, policyof cultural genocide – the systematic destructionof indigenous communities through the removal

and reprogramming of their children. Thisapproach was thought to be less costly than warsagainst the tribes or eradication of Native popula-tions.

The first appointments to the Board of IndianCommissioners were male Protestants. Thisremained the case until two Roman Catholics wereappointed in 1902 by Theodore Roosevelt.Although not appointed as representatives of theirdenominations, they clearly were selected by thosedenominations to be appointed. This was a clearand obvious violation of the principle of separationof church and state, but none of the leaders of theday believed that principle applied in mattersrelating to Native Americans. The Catholics, having been initially excluded from the Board,argued fervently that the children should have thefreedom to choose their religion, saying in onestatement:

“The Indians have a right, under theConstitution, as much as any other person inthe Republic, to the full enjoyment of libertyof conscience; accordingly they have the rightto choose whatever Christian belief they

Carlisle Indian Industrial School Capt Richard Pratt with Navajo girls and boys from New Mexico upon thier arrival,1880. NAA INV 02292400. National Anthropological Archives, Smithsonian Institution.

wish, without interference from the Govern-ment.” (The Churches and the Indian Schools,1888-1912, Prucha, Francis Paul, Univ. ofNebraska Press 1979) (Emphasis supplied.)

In 1872, the Board of Indian Commissionersallotted seventy-three Indian agencies to variousdenominations as follows:

• Methodists, fourteen agencies in thePacific Northwest (54,743 Indians),

• Orthodox Friends, ten (17,724), • Presbyterian, nine in the Southwest

(38,069), • Episcopalians, eight in the Dakotas

(26,929), • Catholics, seven (17,856), • Hicksite Friends, six (6,598), • Baptists, five in Utah, Idaho and the

Indian Territory (40,800), • Reformed Dutch, five (8,118), • Congregationalists, three (14,476), • Christians, two (8,287), • Unitarians, two (3,800), • American Board of Commissioners for

Foreign Missions in the Indian territoryof Oklahoma (1,496),

• Lutherans, one (273).

Whatever pretense there may have been aboutthe appointment of Christians as Commissioners,there was no mistaking that the allocation of theagencies was by Christian denominations.

The systematic destruction of indigenous cultures and communities through the removaland reprogramming of Native children

Boarding schools located far from homelandswere initiated when 2nd Lieutenant Richard Prattfounded the Carlisle Indian School in 1879 inCarlisle, Pennsylvania. The fundamental principlewas that Native Americans must be taught toreject tribal culture and adapt to white society;famously saying his goal was to “kill the Indian, inorder to save the man.” This initiative called forthe removal of children from family and commu-nity, voluntarily when possible, by coercion if necessary. Parents were threatened with the lossof provisions – which almost certainly meant star-vation– or even jail for withholding children.

Nineteen Hopi men were designated as“Hostiles” by the U.S. Army on November 25, 1894and incarcerated in Alcatraz “until they shallevince, in an unmistakable manner, a desire tocease interference with the plans of the govern-ment for the civilization and education of itsIndian wards.” They had opposed the forcedremoval and education of their children.(http://www.nps.gov/alca/historyculture/hopi-prisoners-on-the-rock.htm)

Children were held in isolation in regimentedand sterile settings. Separated from their homesand communities, they were placed in dormitorysettings fashioned after the military model wherethey were controlled, trained, neglected andabused. They were punished for speaking theirnative languages, banned from acting in any wayrepresentative of traditional or cultural practices,stripped of traditional clothing, hair and allthings and behaviors reflective of their cultures.They were intentionally and systematically incul-cated with shame for being Indian throughridicule of their religions and their life-ways;shame that became internalized as self-loathingand emotional disenfranchisement for their owncultures.

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Carlisle Indian Industrial School portrait of femaleOmaha Indian students in school uniforms 1894. NAAINV 06821500. National Anthropological Archives,Smithsonian Institution.

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For many of the girls and boys, the only touchthey received from the small population of adultsstationed at the schools, were the beatings or,perhaps worse, forced sexual contact with adults,or older students who themselves had been vic-tims. Kept at the boarding school year round,many grew up solely in the company of otherchildren, under the control of a few adults, whoshared the perception that their wards were sav-ages and heathens to be managed, tamed and“civilized”.

Systemic institutional neglect and the fear ofdeath from persistent mortalities motivated manystudents to run away. At Carlisle Indian School inthe years from 1883 through 1918 there were 1842desertions and nearly 500 deaths; ranging between3.5 and 4.5 times the national average at that time.Capture after running away – the only desperateact within the power of the children and teens –was punished by physical restraints, beatings, andisolation in unlighted cellars and unlighted andunventilated outbuildings designed as jails.

Before long, there were some 500 boardingschools in 18 states: Arizona, California, Colorado,Kansas, Michigan, Minnesota, Montana, Nebraska,

New Mexico, Nevada, North Dakota, Oklahoma,Oregon, Pennsylvania, South Dakota, Utah,Virginia and Wisconsin. As late as 1973, therewere still 60,000 American Indian childrenenrolled in off-reservation schools.

Reports include the disappearance of childrenborn to boarding school students as the result ofrape. Unaccounted for thousands of children diedfrom disease, malnutrition, loneliness and abuse.Survivors reported that many of the dead wereburied anonymously, some in mass graves, on thegrounds of the residential schools. The remains ofthese children have never been returned to theirfamilies or communities.

Turning Back A National Tragedy

In 1928 the Miriam Report on federal adminis-tration of Indian affairs concluded with respect tothe boarding schools that “The survey staff findsitself obligated to say frankly and unequivocallythat the provisions for the care of the Indian chil-dren in boarding schools are grossly inadequate.”In 1969, the Kennedy Report declared Indian edu-cation "a national tragedy." Teachers in 1969 stillsaw their role as that of “civilizing the native.”

Carlisle Indian Industrial School Teacher Miss Hunt with group of students in school uniform 1879. Photo lot 81-1206805200. National Anthropological Archives, Smithsonian Institution.

Schools failed to “prepare students academically,socially, psychologically, or even vocationally forthe urban life to which the schools directed them.As a result, many returned to their reservationsdisillusioned, to spend the rest of their lives ineconomic and intellectual stagnation.”

Those victimized in the schools, their children,grandchildren and great-grandchildren, havebecome the legacy of the boarding schools and thefederal policy that established and sustained them.Many of those that returned to their communitiescame as wounded human beings. Denied thesecurity and safety necessary for healthy growthand development, they retained only fractured cultural skills to connect them with their familiesand communities. These survivors were left withvarying degrees of scars and skills, but most pro-foundly, of psychological subordination. Manyreport feeling self-hatred for being Indian; bereftof spirit, knowledge, language and social tools toreenter their own societies. With only limitedlabor skills, exacerbated by the subordinated spirittrained into them, too many carried undefined andunremitting anxieties that drove them to alco-holism, drug abuse, violence against their own

families and communities, and suicide.

Native communities have advocated over thedecades for an end to the federal boarding schoolpolicy. Despite the fact that some students at theboarding schools did thrive, still others suffered,and the success of individuals did not justify thepolicy of cultural genocide and could have beenachieved without it. Eventually, in large part dueto the impact of the Kennedy Report and tribaladvocates, the policy started to turn back via pas-sage in 1972 of the Indian Education Act and in1975 of the Indian Self Determination andEducation Assistance Act. This legislation made itpossible for tribes to begin to control their ownschools, and to turn back the policy of educatingthe Indian out of the Indian students.

Change was not immediate. The damage thathas already been done over the previous century is a long way from being resolved. The nationseemed to turn its face in denial over what hadhappened. This prolongs the suffering, as theinjuries to Native communities, families, and indi-viduals carries on until they are healed. The firststep in creating that opportunity for healing

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Before. Carlisle Indian Industrial School group from Arizona and Florida upon arrival at school. SPC Sw Apache02089900. National Anthropological Archives, Smithsonian Institution.

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involves telling the truth about what happened;instead of turning away from the past, we mustembrace it and honestly admit all that happened.

No Access To Justice

There is no meaningful access to justice in thecourts for the individuals and communities thatsuffer from the impacts of the implementation ofthe boarding school policy. Legal barriers tobringing suit against the United States for com-pensation for injuries exist in the form of statutesof limitations. Lawsuits against individual teachers,priests, and church representatives face the samekind of barriers in state courts. One Catholic orderwent to the South Dakota state legislature in 2010to get a law cutting off claims against the Churchand them as individuals. One wonders if that istheir teaching about what Christ would do.

NARF Involvement – Symposium and Coalition

In 2011, NARF, the Boarding School HealingProject of the Seventh Generation Fund, theUniversity of Colorado School of Law and theUniversity of Wyoming School of Law convened a

symposium of individuals from across the U.S. andCanada who had been working on various aspectsof boarding school issues. The goal of the sympo-sium was to discuss priorities and strategies toachieve a national recognition of the wrongs visitedon Native American individuals and communities,and to obtain remediation to provide a frameworkfor healing of these historic and enduring wrongs.The symposium participants agreed that it wasnecessary to continue the work on the issue andformed the National Native American BoardingSchool Healing Coalition (N-NABS-HC) to formu-late a specific strategy and framework to pursuebroader support and participation. NARF com-pleted non-profit incorporation of the Coalition inJune 2012 through the Navajo Nation's BusinessRegulatory Department. Application for certifica-tion as a tax exempt 501(c)(3) organization hasbeen filed. The founding meeting of theCorporation was held in September 2012, and thefirst annual meeting was held in October 2013.

NARF has been working to assist the N-HABS-HCto meet its mission. The Coalition has recom-mended that the United States create aCommission on Boarding School Policy with the

After. Carlisle Indian Industrial School group of boys and girls from Arizona and Florida after 3 years at school. SPCSw Apache 02090000. National Anthropological Archives, Smithsonian Institution.

full and active participation of impacted NativeAmericans at all stages to carry out a range ofessential tasks. The tasks of the Commissionshould include: (1) providing accurate and comprehensive information to the United Statesgovernment, Indigenous Peoples and theAmerican public about the purposes and humanrights abuses of boarding school policies; (2) gath-ering documentation from survivors, their fami-lies and others about the treatment of children inthe schools, the abuse and neglect they suffered,and the number of deaths that to date are unre-ported, including an accounting for the remains ofchildren that are as yet un-repatriated to familiesand Tribes; (3) receiving recommendations forredress and programs to facilitate and supporthealing for individuals, families, communities,tribes, Pueblos and Alaska Native Villages; (4) rec-ommending legislative provisions that will removethe barriers to access to justice for individuals,communities, tribes, Pueblos and Alaska NativeVillages; (5) documenting healing programs thatare proving effective or that display promise ofbeing effective in helping heal tribal nations andtheir members from historical trauma; (6) and

documenting scientific theories that help explainthe process, effects, and recovery from historical/inter-generational trauma.

The National Commission would plan, design,and carry out its work in collaboration withimpacted indigenous communities and experts inthe relevant fields. It would:

• gather records and related information aboutthe operation of the schools by the govern-ment and the churches;

• gather information from experts about inter-generational and historical trauma;

• take recommendations from affected commu-nities about what is needed to effectuate truecommunity and national healing;

• raise public awareness and provide public edu-cation about U.S. boarding school policies andtheir ongoing effects; and

• recommend and commit support for culturally-appropriate community-led remedies with thefull and effective participation of survivors,communities, and tribal nations.

N-NABS-HC also stresses the importance ofredress for the ongoing intergenerational trauma

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Carlisle Indian Industrial School American Indian girls in school uniform exercising inside gymnasium 1879. NAA INV 06828200. National Anthropological Archives, Smithsonian Institution.

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and cultural loss that are a direct result of thesepolices for so many indigenous individuals, fami-lies, communities and tribal Nations across theUnited States. Opportunity and resources must bemade available for indigenous communities usingindigenous principles and understandings to plan,design, implement and manage programs andprocesses for healing the longstanding inter-gen-erational and historical traumas that continue toplague them, including programs to reverse lan-guage loss. These programs and processes must belocally conceived and administered with inputfrom impacted individuals and families as well astraditional spiritual and cultural knowledge-hold-ers, healers and other practitioners.

The quest for a fully participatory process – onethat results in meaningful and just redress, recon-ciliation and restoration of what can be restored –will involve engaging impacted indigenous indi-viduals and peoples to define what justice, healingand redress look like for them. This vision may dif-fer among and between distinct communities. It isimperative to begin collecting input now on whatmeasures are needed in each Native nation and

community to begin to reverse the bitter legacy ofthis policy, a policy of deliberate cultural genocide.It is time to let our nations begin healing.

Summary

It is time to heal our communities and ournations. Tribal nations and the United States bothstand to benefit immensely by stepping towardsrecovery and righting the relationship that con-tinues to suffer because of wide scale denial andignorance of the history of the United Statesboarding school policy. Both will begin to healonce the truth of the story is told. Efforts to cre-ate and recreate the wheel are underway, as ofnecessity, in many tribal communities across thenation. Science is advancing to finally come tounderstand what Native communities have beenaware of for a long time—that traumas experi-enced in the past continue to harm the victimsand the victimizers through the generations untilthe harm is effectively confronted and healing isundertaken in earnest. The time for this healingto begin is now, and this project is poised to helpmake it happen. ❂

Carlisle Indian Industrial School American Indian boys in school uniform exercising inside gymnasium 1879. NAA INV 06828200. National Anthropological Archives, Smithsonian Institution.

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There are children in the meadows and wetlands

Native children ran there to hide

When teachers pulled and butchered their hair

When teachers stole their medicine bags

When teachers collected their moccasins

When teachers dressed them in strange clothes

When teachers beat them with boards and belts

When teachers starved them for being bad Indians

The children ran to the meadows and wetlands

There are children in the meadows and wetlands

Hostages who were taken to Haskell

Who never saw their families again

Who never saw nine or eleven or tomorrow

Who didn’t make it home for summer vacations

Who couldn’t stop whooping and coughing

Who couldn’t learn English fast enough

Who wouldn’t fall to their knees often enough

They ran ‘til they fell in the meadows and wetlands

There are children in the meadows and wetlands

Hostages who were taken to Chilocco

Where they ran from teachers’ fists and boots

Where they ran from bounty-hunters’ cages

Where they ran from high collars and hard shoes

Where they ran from lye soap in their mouths

Where they ran from day and night

Children in the Meadows and Wetlands

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Where they ran until wolves outran them

Their teeth are in the meadows and wetlands

There are children in the meadows and wetlands

Hostages who were taken to Carlisle

Who got to build the school buildings

Who got Christian burials without coffins

Who got a mass grave with their friends

Who got plowed under for a football field

Who got embedded in concrete for the stadium

Who got to be the practice site for the Washington Redskins

Because they ran to the meadows and wetlands

There are children in the meadows and wetlands

Native children ran there to hide

You can see their clothes in museums

You can see their pipe bags at the opera

You can see bands marching on their hallowed ground

You can see mascots dancing over their dead bodies

You can imagine their hair long and beautiful again

Safe from teachers and scissors at last

These children in the meadows and wetlands

--suzan shown harjo

Contributed by long-term friend and ally of NARF, and activist for Native peoples, Suzan Shown Harjo (Cheyenne/Muskogee)

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The Tribal Supreme Court Project is part of theTribal Sovereignty Protection Initiative and isstaffed by the National Congress of AmericanIndians (NCAI) and the Native American RightsFund (NARF). The Project was formed in 2001 inresponse to a series of U.S. Supreme Court casesthat negatively affected tribal sovereignty. Thepurpose of the Project is to promote greater coor-dination and to improve strategy on litigationthat may affect the rights of all Indian tribes. Weencourage Indian tribes and their attorneys tocontact the Project in our effort to coordinateresources, develop strategy and prepare briefs,especially at the time of the petition for a writ ofcertiorari, prior to the Supreme Court acceptinga case for review.

On September 30, 2013, the U.S. SupremeCourt held its long conference to decide howmany new cases to accept for review from a hugelist of petitions that stacked up during its sum-mer recess. Among the 2000+ petitions consid-ered were five Indian law cases all of which weredenied review. The Tribal Supreme Court Projectremains focused on Michigan v. Bay Mills—acase granted review by the Court at the end of thelast term even though the United States had fileda brief recommending that cert be denied.Although this litigation should be about the mer-its of Bay Mills’ claims under the Michigan IndianLand Claims Settlement Act to conduct gamingon lands acquired with settlement funds—it isnot. In its current posture before the Court, theState of Michigan is using this case to mount afull frontal attack on tribal sovereign immunityand the authority of states to regulate “gamingactivity” under the Indian Gaming Regulatory Act(IGRA). The State of Alabama, joined by fifteenother states, and the State of Oklahoma have filedamicus briefs in support of Michigan (see sum-maries below).

On the merits, Michigan is asking the Court toexamine “IGRA as a whole” to find Congressionalintent to waive tribal sovereign immunity or, in

the alternative, to overrule Santa Clara Puebloand apply a “less strict standard” when consider-ing whether legislation such as IGRA abrogatestribal sovereign immunity. If the statutory argu-ments are not successful, the state is asking theCourt to recognize that tribal sovereign immuni-ty “is a federal common law doctrine” created bythis Court and subject to adjustment by thisCourt. Thus, according to Michigan, the Courtshould narrowly read Kiowa as a “contract-basedruling” and (at the extreme) hold that a tribe’simmunity is limited to its on-reservation govern-mental functions. With the doctrine of tribal sov-ereign immunity and the authority of statesunder IGRA on the table, this case has becomehigh-stakes litigation for Indian tribes across thecountry. Although Bay Mills and other tribeshave solid legal arguments to make to the Court,the optics and politics of this case do not bodewell for a good outcome.

The Project is working closely with a number ofIndian law and Supreme Court practitioners todevelop the most effective amicus brief strategyto inform the Court how Congress carefully craftedIGRA to balance the interests of the states, tribesand the federal government in the area of Indian

Tribal Supreme Court Project

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gaming, and to provide an opportunity for mean-ingful resolution of disputes between states andtribes without any need for the Court to inter-vene through an abrogation of tribal sovereignimmunity.

Case Granted Review By The Supreme Court

Michigan V. Bay Mills Indian Community – OnDecember 2, 2013, the Supreme Court is sched-uled to hear oral argument involving the petitionfiled by the State of Michigan seeking review of adecision by the U.S. Court of Appeals for the SixthCircuit which held that federal courts lack juris-diction to adjudicate the state’s IGRA claims tothe extent those claims are based on an allegationthat the Tribe’s casino is not on Indian lands andthat such claims are also barred by the doctrineof tribal sovereign immunity. The SolicitorGeneral had filed a brief expressing the views ofthe United States and recommending that theCourt deny review of the petition.

The Bay Mills Indian Community opened a casi-no in late 2010 on fee land about 90 miles southof its Upper Peninsula reservation. The Tribe hadpurchased the land with interest earnings from asettlement with the federal government overcompensation from land ceded in 1800s treaties.Under the Michigan Indian Land ClaimsSettlement Act of 1997, any land acquired withthese settlement funds would "be held as Indianlands are held." Michigan argued that the tribeopened the casino on lands that do not qualify as“Indian lands” under IGRA and in violation of astate-tribal gaming compact. The questions pre-sented in the petition are:

The Indian Gaming Regulatory Act, 25U.S.C. § 2701 et seq. (IGRA), authorizes anIndian tribe to conduct class III gamingunder limited circumstances and only on"Indian lands." 25 U.S.C. § 2710(d)(1). Thisdispute involves a federal court’s authority toenjoin an Indian tribe from operating an ille-gal casino located off of "Indian lands." Thepetition presents two recurring questions ofjurisprudential significance that have divid-ed the circuits: (1) Whether a federal courthas jurisdiction to enjoin activity that vio-lates IGRA but takes place outside of Indian

lands; and (2) Whether tribal sovereignimmunity bars a state from suing in federalcourt to enjoin a tribe from violating IGRAoutside of Indian lands.

On August 30, 2013, Michigan filed its openingbrief and is using this case to mount a full frontalattack on tribal sovereign immunity and theauthority of states to regulate “gaming activity”under the Indian Gaming Regulatory Act (IGRA).First, Michigan asks the Court to examine “IGRAas a whole” to find Congressional intent to waiveof tribal sovereign immunity or, in the alterna-tive, to overrule Santa Clara Pueblo and apply a“less strict standard” when considering whetherlegislation such as IGRA abrogates tribal sover-eign immunity. Second, if the statutory argu-ments are not successful, Michigan asks theCourt to recognize that tribal sovereign immuni-ty “is a federal common law doctrine” created bythis Court and subject to adjustment by thisCourt. Thus, according to Michigan, the Courtshould narrowly read Kiowa as a “contract-basedruling” and (at the extreme) hold that a tribe’simmunity is limited to its on-reservation govern-mental functions.

On September 6, 2013, two amicus briefs insupport of Michigan were filed. First, the State ofAlabama, joined by fifteen other states, filed anamicus brief asking the Court to allow states tosue tribes for declaratory and injunctive reliefwhen tribes are operating “unlawful gambling,payday lending, and similar activities” within thestate. The states’ amicus brief characterize thecommercial activities of Indian tribes as“hav[ing] built everything from brick-and-mortarcasinos to Internet-based banks, based on theperception that they can evade federal and stateregulations within state territory.” Second, theState of Oklahoma filed its own amicus brief tothe draw the Court’s attention to three examplesof what it characterizes as the failure of theUnited States and the National Indian GamingCommission to stop “illegal tribal gambling”within the state.

The Tribe’s response brief was filed on October24, 2013, and supporting amicus briefs were filedon October 31, 2013.

In Sisseton Wahpeton Oyate v. Jewell, theNative American Rights Fund represents fourtribes – Sisseton Wahpeton Oyate; QuinaultIndian Nation; White Earth Chippewa Nation;and, Oklahoma Kickapoo Tribe – in the new casefiled on April 30, 2013 in the Federal DistrictCourt for the District of Columbia seeking his-torical accountings of the Tribes’ trust accounts,funds and resources. NARF expects the govern-ment to file a Motion to Dismiss the case later

this year on statute of limitations grounds, butwe also hope to engage in settlement negotia-tions at the political level with the ObamaAdministration regarding the Tribes’ trustaccounting and mismanagement claims. It isexpected that several other tribes will join thissuit to seek historical accountings of their trustaccounts. ❂

NARF Files Second Round of Tribal Trust Fund Suits

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Tex Hall is the longest serving chairman of theMandan, Hidatsa and Arikara Nation, also knownas the Three Affiliated Tribes. Hall has a Bachelorof Arts degree in education from the University ofMary, in Bismarck, North Dakota, and a Master ofEducation Administration degree from theUniversity of South Dakota in Vermilion, SouthDakota. Hall served two terms as president of theNational Congress of American Indians, co-chairof the National Indian Education Task Force andchairman of the Great Plains Region TribalChairmen's Association. He was appointed to thefirst tribal advisory committee ever established inthe history of U.S. Department of Health andHuman Services to recommend and advise theSecretary of the Department. He initiated theKeepseagle class action lawsuit that brought ahistoric settlement of $760 million for NativeAmerican farmers and ranchers. In 2013, he wasawarded the Wendell A. Chino HumanitarianAward from the National Indian GamingAssociation.

The Board and staff of the Native AmericanRights Fund look forward to working withChairman Hall. ❂

NEW NARF BOARD MEMBER

NARF LEGAL REVIEW PAGE 17

NATIVE AMERICAN RIGHTS FUND

National Indian Law Library

The National Indian Law Library pro-vides free weekly updates on Indian law.

You probably are familiar with thegreat work NARF does in court roomsand the halls of Congress relating totribal recognition, treaty enforcement,trust fund settlements, NAGPRA, andmore. Did you know that NARF’sNational Indian Law Library providesfree weekly Indian law updates?

Each week, the law librarian and 3volunteers perform research to uncoverthe latest legal developments andinformation relevant to NativeAmericans. This research includeslocating recent cases decided, legalnews and scholarship, U.S. legislation,regulatory action form agencies anddepartments such as the EnvironmentProtection Agency, the Bureau ofIndian Affairs and the Department of Education.Recent updates included:

a) latest news and legal action on theAdoptive Family Indian Child Welfare case

b) new rules relating to the Courts of IndianOffenses

c) notice of the passage of the ViolenceAgainst Women Reauthorization Act of 2013

d) the latest news about the “Redskins”trademark and impacts of the AffordableHealthcare Act

Sign up for free to get the latest updates sentto your email by visiting the library blog at:http://nilllibrary.blogspot.com/ (Insert youremail in the “Follow By Email” box or sign upfor a wider variety of updates from the libraryand NARF at: http://tinyurl.com/narfupdates

Weekly Bulletin Alerts are Saved to Make aPowerful Free Indian Law Research Database

The National Indian Law Library Indian LawBulletins are archived into a large database thatcan be searched using custom Google search. Ifyou remember seeing something in the IndianLaw Bulletins alerts that you want to find again,try using the custom Google search engine tolocate that item. Your research results will beorganized under nine different tabs that repre-sent individual bulletins. See sample search on“cigarette” above. If you have questions or wantgeneral Indian law research help, contact thelibrary for help. http://www.narf.org/contact/library.htm

Support the National Indian Law Library in itseffort to fight injustice through access to knowl-edge. You help ensure that the library continuesto supply free access to Indian law resources andthat it has the financial means necessary to pur-sue innovative and groundbreaking projects toserve you better. Please visit www.narf.org/nill/donate now for more information on how youcan support this mission. ❂

Justice Through Knowledge!

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• Ak-Chin Indian Community

• Amerind Risk ManagementCorporation

• Bois Forte ReservationTribal Council

• Colorado River IndianTribes

• Confederated Salish &Kootenai Tribes

• Cow Creek Band ofUmpqua Indians

• Delaware Nation

• Forest CountyPotawatomi Foundation

• Kaibab Paiute Tribe

• Keweenaw Bay IndianCommunity

• Lac Courte Oreilles Bandof Ojibwe

• Little Traverse BayBands of Odawa Indians

• Muckleshoot Tribe

• National Indian GamingAssociation

• Native Village of Eyak

• Native Village of Port Lions

• Pawnee Nation

• Poarch Band of CreekIndians

• Pokagon Band ofPotawatomi Indians

• Pueblo of Zia

• Qawalangin Tribe ofUnalaska

• Rosebud Sioux TribeEducation Department

• Saginaw Chippewa Indian Tribe

• San Manuel Band ofMission Indians

• Sault Ste. Marie Tribe of Chippewa

• Seminole Tribe of Florida

• Seven CedarsCasino/JamestownS’Klallam

• Shakopee MdewakantonSioux Community

• Shoalwater Bay Indian Tribe

• Spirit Lake DakotahNation

• Stillaguamish Tribe

• Suquamish Indian Tribe

• Tanana ChiefsConference

• Three Affiliated Tribes

• Tlingit and Haida IndianTribes of Alaska

• Tulalip Tribes

• Ute Indian Tribe

• Yavapai-Prescott Indian Tribe

• Yoche Dehe WintunNation

• Yurok Tribe

It has been made abundantly clear that non-Indian philanthropy can no longer sustainNARF’s work. Federal funds for specific projectshave also been reduced. Our ability to providelegal advocacy in a wide variety of areas such asreligious freedom, the Tribal Supreme CourtProject, tribal recognition, human rights, trustresponsibility, tribal water rights, Indian ChildWelfare Act, and on Alaska tribal sovereigntyissues has been compromised. NARF is nowturning to the tribes to provide this crucialfunding to continue our legal advocacy onbehalf of Indian Country. It is an honor to listthose tribes and Native organizations who havechosen to share their good fortunes with theNative American Rights Fund and the thousands

of Indian clients we have served. The generosi-ty of tribes is crucial in NARF’s struggle toensure the future of all Native Americans.

The generosity of tribes is crucial in NARF’sstruggle to ensure the freedoms and rights of allNative Americans. Contributions from thesetribes should be an example for every NativeAmerican tribe and organization. We encourageother tribes to become contributors and part-ners with NARF in fighting for justice for ourpeople and in keeping the vision of our ances-tors alive. We thank the following tribes andNative organizations for their generous supportof NARF for our 2013 fiscal year – October 1,2012 to September 30, 2013:

CALLING TRIBES TO ACTION!

NARF LEGAL REVIEW PAGE 19

NATIVE AMERICAN RIGHTS FUND

THE NATIVE AMERICAN RIGHTS FUND

NARF Annual Report: This is NARF's major report on its programs andactivities. The Annual Report is distributed to foundations, major contributors, certain federal and state agencies, tribal clients, NativeAmerican organizations, and to others upon request. Ray RamirezEditor, ramirez@narf.org.

The NARF Legal Review is published biannually by the Native AmericanRights Fund. Third class postage paid at Boulder, Colorado. RayRamirez, Editor, ramirez@narf.org. There is no charge for subscrip-tions, however, contributions are appreciated.

Tax Status: The Native American Rights Fund is a nonprofit, charitableorganization incorporated in 1971 under the laws of the District ofColumbia. NARF is exempt from federal income tax under the provi-sions of Section 501 C (3) of the Internal Revenue Code, and contribu-tions to NARF are tax deductible. The Internal Revenue Service has

ruled that NARF is not a “private foundation” as defined in Section509(a) of the Internal Revenue Code.

Main Office: Native American Rights Fund, 1506 Broadway, Boulder,Colorado 80302 (303-447-8760) (FAX 303-443-7776). http://www.narf.org

Washington, D.C. Office: Native American Rights Fund, 1514 P Street,NW (Rear) Suite D, Washington, D.C. 20005 (202-785-4166) (FAX 202-822-0068).

Alaska Office: Native American Rights Fund, 745 W. 4th Avenue, Suite 502, Anchorage, Alaska 99501-1736 (907-276-0680) (FAX 907-276-2466).

Workplace Campaigns: NARF is a member of America’s Charities, anational workplace giving federation. Giving through your workplace isas easy as checking off NARF’s box, #10350 on the Combined FederalCampaign (CFC) pledge form authorizing automatic payroll deduction.

The Native American Rights Fund (NARF) is the oldest andlargest nonprofit national Indian rights organization in the coun-try devoting all its efforts to defending and promoting the legalrights of Indian people on issues essential to their tribal sover-eignty, their natural resources and their human rights. NARFbelieves in empowering individuals and communities whoserights, economic self-sufficiency, and political participation havebeen systematically or systemically eroded or undermined.

Native Americans have been subjugated and dominated.Having been stripped of their land, resources and dignity, tribestoday are controlled by a myriad of federal treaties, statutes, andcase law. Yet it is within these laws that Native Americans placetheir hope and faith for justice and the protection of their way oflife. With NARF’s help, Native people can go on to provide leader-ship in their communities and serve as catalysts for just policiesand practices towards Native peoples nationwide. From a histori-cal standpoint Native Americans have, for numerous reasons,been targets of discriminatory practices.

For the past 43 years, NARF has represented over 250 Tribes in31 states in such areas as tribal jurisdiction and recognition, landclaims, hunting and fishing rights, the protection of Indian religious freedom, and many others. In addition to the greatstrides NARF has made in achieving justice on behalf of NativeAmerican people, perhaps NARF’s greatest distinguishingattribute has been its ability to bring excellent, highly ethicallegal representation to dispossessed tribes. NARF has been suc-cessful in representing Indian tribes and individuals in cases thathave encompassed every area and issue in the field of Indian law.The accomplishments and growth of NARF over the years con-firmed the great need for Indian legal representation on a nationalbasis. This legal advocacy on behalf of Native Americans continuesto play a vital role in the survival of tribes and their way of life.NARF strives to protect the most important rights of Indian peoplewithin the limit of available resources.

One of the initial responsibilities of NARF’s first Board ofDirectors was to develop priorities that would guide the NativeAmerican Rights Fund in its mission to preserve and enforce thelegal rights of Native Americans. The Committee developed fivepriorities that continue to lead NARF today:

• Preservation of tribal existence• Protection of tribal natural resources• Promotion of Native American human rights• Accountability of governments to Native Americans• Development of Indian law and educating the public

about Indian rights, laws, and issues

Under the priority of the preservation of tribal existence, NARFworks to construct the foundations that are necessary to empowertribes so that they can continue to live according to their Nativetraditions, to enforce their treaty rights, to insure their indepen-dence on reservations and to protect their sovereignty.

Throughout the process of European conquest and colonizationof North America, Indian tribes experienced a steady diminish-ment of their land base to a mere 2.3 percent of its original size.Currently, there are approximately 55 million acres of Indian-controlled land in the continental United States and about 44million acres of Native-owned land in Alaska. An adequate landbase and control over natural resources are central componentsof economic self-sufficiency and self-determination, and as such,are vital to the very existence of tribes. Thus, much of NARF’swork involves the protection of tribal natural resources.

Although basic human rights are considered a universal andinalienable entitlement, Native Americans face an ongoing threatof having their rights undermined by the United States govern-ment, states, and others who seek to limit these rights. Under thepriority of the promotion of human rights, NARF strives toenforce and strengthen laws which are designed to protect therights of Native Americans to practice their traditional religion,to use their own language, and to enjoy their culture.Contained within the unique trust relationship between theUnited States and Indian nations is the inherent duty for all levelsof government to recognize and responsibly enforce the manylaws and regulations applicable to Indian peoples. Because suchlaws impact virtually every aspect of tribal life, NARF maintainsits involvement in the legal matters pertaining to accountabilityof governments to Native Americans.

The coordinated development of Indian law and educating thepublic about Indian rights, laws, and issues is essential for thecontinued protection of Indian rights. This primarily involvesestablishing favorable court precedents, distributing informationand law materials, encouraging and fostering Indian legal educa-tion, and forming alliances with Indian law practitioners andother Indian organizations.

Requests for legal assistance should be addressed to theLitigation Management Committee at NARF's main office, 1506Broadway, Boulder, Colorado 80302. NARF’s clients are expectedto pay whatever they can toward the costs of legal representation.

NATIVE AMERICAN RIGHTS FUND BOARD OF DIRECTORSGerald Danforth, Chairman .................................................................................. Wisconsin Oneida

Natasha Singh, Vice-Chairman .................................................................. Native Village of Stevens

Virginia Cross ........................................................................................................ Muckleshoot Tribe

Moses Haia ................................................................................................................ Native Hawaiian

Tex G. Hall ........................................................................................................ Three Affiliated Tribes

Gary Hayes ………………………………………………………………. Ute Mountain Ute Tribe

Julie Roberts-Hyslop …………………………………………………… Native Village of Tanana

Stephen Lewis ……………………………………………………... Gila River Indian Community

Mark Macarro .............................................................................. Pechanga Band of Luiseño Indians

Peter Pino ………………………………………………………………………………. Zia Pueblo

Buford Rolin ........................................................................................ Poarch Band of Creek Indians

Barbara Anne Smith .............................................................................................. Chickasaw Nation

Executive Director: John E. Echohawk .................................................................................. Pawnee

NARF LEGAL REVIEW • VOLUME 38, NO. 2 • SUMMER/FALL 2013

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