BOULDER, Col. — Non-Indians and humanity generally can take heart. While
it’s true that U.S. citizens, the states, Congress and all manner of
corporations have undermined American Indians and tribal rights over and
again throughout the history of the nation, and that the machinations to
separate Indian people from their land and resources have been many and
continue today, not all the powers-that-be acted on self-interest without
shreds of wisdom and honor. John Marshall, the revered 19th century chief
justice of the Supreme Court, was certainly one non-Indian who
distinguished himself from the rabble.

Known today as the Marshall Trilogy, three cases decided during Marshall’s
tenure on the bench established what Native American Rights Fund’s
executive director, John Echohawk, J.D., points to as a significant “strong
legal foundation” of Indian law writ large on the fabric of U.S. history.
“The Marshall Trilogy cases and treaty rights — those are the two main
pillars supporting the strong legal foundation of Indian law that NARF had
to work with when it started out in 1970.”

Operating off that foundation, the modern-day warriors at NARF rolled up
their sleeves. In addition to preserving tribal status and working on land,
water, fishing and hunting rights cases, the group of 13 attorneys
stationed in Boulder have focused on the promotion of human rights and
governmental accountability.

Religious freedom has been one area in which NARF has been especially
active, as it has sought to ensure that those in Indian country enjoy First
Amendment rights that are theirs as American citizens. According to NARF
editor Ray Ramirez, “The suppression of traditional Indian religions began
in 1492 and has continued to the present, ranging from the government’s
outright prohibition of Indian religious practices in the late 19th and
20th centuries to current developments which threaten to destroy sacred
sites.”

The American Indian Religious Freedom Act, passed by Congress in 1978,
helped the cause. But subsequent unfavorable Supreme Court decisions in
cases aimed at protecting tribal religious freedoms did not inspire
confidence in NARF. As Ramirez wrote, “To combat this injustice, NARF and
other Native organizations formed the American Indian Religious Freedom
Coaltion … to support federal legislation to overturn these Supreme Court
cases and restore Native Americans to the protections of the First
Amendment.”

One victory centered on the Native American Church of North America, or
NAC. Here NARF was instrumental in getting legislation passed during the
Clinton administration in the early 1990s that protected NAC church
members’ right to use peyote in religious ceremonies. NARF also worked for
nearly a decade with the Confederated Salish and Kootenai tribes of Montana
to successfully stop the proposed construction of a dam and hydroelectric
project on a sacred religious site.

Repatriation, of course, is another area in which NARF leadership has been
pivotal. Indeed, NARF was a leading proponent of the Native American Graves
Protection and Repatriation Act, signed into law by Pres. George H.W. Bush
in 1990. NAGPRA covered the bases, requiring that federal agencies and
private museums that received federal funding inventory and return
ancestral remains and funerary objects to the tribes; and generally made
clear, in Ramirez’s words, “that Indian tribes own all human remains and
cultural items excavated or discovered on federal or tribal land.”

NARF has helped tribes not only to secure the past, the organization has
been at the forefront of educational reform designed to empower tribes and
give communities appropriate control over the kind of messages youngsters
receive once they enter the formal schooling system. In one example, after
Congress amended the 1965 Voting Rights Act in 1982 and prohibited
discriminatory electoral schemes, NARF negotiated a settlement in the
Buckanaga v. Sisseton Independent School District case whereby voting
procedures that had effectively prevented Indian representation on a local
school board were altered. Also, in a precedent-setting case with
far-reaching implications, NARF helped the Rosebud Sioux Tribe of South
Dakota win sufficient power in 1991 to regulate public schools that serve
tribal children on Indian reservations.

Then there’s NARF’s work on the current Cobell v. Norton case — on all the
money that, in Echohawk’s words, “the federal government has lost track of
for over 100 years. It’s Indian money from leases for land, oil, gas,
grazing and all kinds of other things. Because the land is held in trust
the federal government is our banker, and they’re supposed to keep
accounts. They keep promising to fix things, but nothing ever happens.

“After the latest failed effort, we saw that litigation is the only way
this is ever going to be resolved. Congress or the administration won’t do
anything, so it’s the courts. We’ve been winning in there, so the pressure
is mounting on Congress to fix this broken trust — to not lose any more of
the $27.5 billion-figure in our settlement proposal that is the amount we
have determined the government owes to Indian people.”

Cobell is one case that Echohawk said tribal governments always want to
talk about in meetings. The other is the Tribal Supreme Court Project, a
type of clearinghouse that prioritizes cases so that Indian country can
unify and consolidate its efforts. “Overall the trend is positive, but when
we break it down a little bit more, we find that since [William] Rehnquist
became chief justice in the mid-1980s, the courts have not been as
supportive of Indian legal arguments as they were,” Echohawk said. “The
tribes asked NARF to lead this Tribal Supreme Court Project, and we’ve been
doing that since 2001. We think because of this, there’s more careful
coordination of Indian law cases that go before the Supreme Court. Overall
Indian country is doing a better job, and in this time period since 2001
we’ve only lost two cases out of seven.”

Native American Rights Fund: modern-day warriors. Whether it be religious
freedom, control over education, repatriation, straightening out the
federal government’s Indian money accounts or unifying strategies for
Supreme Court hearings, they’ve been there.

From the heady, liberal days of the 1970s and early ’80s, and through the
conservative backlash that began gathering momentum in the late ’80s as
Reagan-era policies established roots, NARF was there.

“Termination was alive and well when the organization was formed, and
tribal sovereignty was a new word and [a] new thing. Now, over these 35
years,” said Echohawk, “termination policy has been reversed and put behind
us for the most part, and sovereignty has come to be recognized even as
tribes have developed economic bases that are increasingly serving them.

“That’s the major change — Indian country’s in much better shape these
days than it was 35 years ago. Of course, we have to be very selective and
focus on issues that are most important to our people as well as the ones
we think we can do something about, but that’s the main work of NARF — to
work on those issues that affect our people. There’s a lot of people out
there that need help. A lot of work to do as long as we can keep generating
the support we need.”

Background on federal Indian law

John Marshall was appointed chief justice of the Supreme Court by Pres.
John Adams in 1801. The era, as today, was one in which the states were
attempting to assert governmental authority over tribes. During Marshall’s
tenure, which lasted through 1835, the court decided three pivotal cases
that established a strong foundation in federal Indian law within the
United States. Known as the Marshall Trilogy, the cases are Johnson v.
McIntosh (1823), Cherokee Nation v. Georgia (1831) and Worcester v. Georgia
(1832).

In Johnson v. McIntosh, the Supreme Court concluded that tribal
sovereignty, although impaired by European colonization, cannot be
dismissed. Indeed, Marshall stated, “In the establishment of these
relations [between Europeans and Indians], the rights of the original
inhabitants, were in no instance, entirely disregarded. They were admitted
to be the rightful occupants of the soil, with the legal as well as just
claim to retain possession of it, and to use it according to their own
discretion.”

Cherokee Nation v. Georgia ruled that Indian tribes were “a distinct
political society, separated from others, capable of managing [their] own
affairs and governing [themselves].”

In Worcester v. Georgia, the third case of the trilogy, the court held that
tribal sovereign powers were not relinquished when Indian tribes exchanged
land for peace or protection.

As a result of the Marshall Trilogy, the Supreme Court both reaffirmed the
sovereignty of Indian tribes and acknowledged this as predating European
arrival. Also, because Indian nations lie within the acknowledged
boundaries of the United States, Marshall delineated Indian tribes as
“domestic dependent nations”; and it’s under this definition that tribes
dialogue with federal and state governments today.