What Happens When Federal Laws Are Violated by the United States Government?
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The Chickamauga Nation: A Federally Recognized and Serviced Treaty Tribe by the United States Legislative and Executive Branches
1819 Indian Civilization Act
FIFTEENTH CONGRESS Session II CH. 85 – 1819 Page 516 and 517
March 3, 1819: CHAP, LXXXV.- An Act making provision for the civilization of the Indian
tribes adjoining the frontier settlements.
Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That for the purpose of providing against the further decline and final extinction of the Indian tribes, adjoining the frontier settlements of the United States, and for introducing among them the habits and arts of civilization, the President of the United States shall be, and he is hereby authorized, in every case where he shall judge improvement in the habits and condition of such Indians practicable, and that the means of instruction can· be introduced with their own consent, to employ capable persons of good moral character,
to instruct them in the mode of agriculture suited to their situation; and for teaching their children in reading, writing, and arithmetic, and performing such other duties as may be enjoined, according to such instructions and rules as the President may give and prescribe for the regulation of their conduct, in the discharge of their duties.
Sec. 2. And be it further enacted, That the annual sum of ten thousand dollars be, and the same is hereby appropriated, for the purpose of carrying into effect the provisions of this act; and an account of the expenditure of the money, and proceedings in execution of the foregoing pro
visions, shall be laid annually before Congress.
APPROVED, March 3, 1819.
Now, what happens when other legislation is built upon the 1819 Indian Civilization Act (1819 ICA)? Does it eliminate the 1819 ICA? No, it only strengthens its initial intent to provide Education and agricultural support to the Indians.
Additionally Supreme Court rulings further strengthen the United States MUST provide financial and technical assistance for the education Of Indians as required by Treaty and Statute. As can be seen in:
First, Additional Statutes
1921 Snyder Act - Chapter 115 of the 67th Congress, Approved November 2, 1921, 42
Stat. 208; 25 U.S.C. 13
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, 25 U.S.C. 13, That the Bureau of Indian Affairs, under the supervision of the Secretary of the Interior, shall direct, supervise, and expend such moneys as Congress may from time to time appropriate, for the benefit, care, and assistance of the Indians throughout the United States for the following purposes:
* General support and civilization, including education.
* For relief of distress and conservation of health.
* For industrial assistance and advancement and general administration of Indian property.
* For extension, improvement, operation, and maintenance of existing Indian irrigation systems and for development of water supplies.
* For the enlargement, extension, improvement, and repair of the buildings and grounds of existing plants and projects.
* For the employment of inspectors, supervisors, superintendents,
clerks, field matrons, farmers, physicians, Indian police, Indian
judges, and other employees.
* For the suppression of traffic in intoxicating liquor and deleterious drugs.
* For the purpose of horse-drawn and motor-propelled passenger-carrying vehicles for official use.
* And for general and incidental expenses in connection with the administration of Indian affairs.
1972 Indian Education Acts – Public Law 92-318, June 23, 1972
TITLE IV—IXDIAN EDUCATION
SHORT TITLE
SEC. 401. This title may be cited as the "Indian Education Act."
Part A – REVISION OF IMPACTED AREAS PROGRAM AS IT RELATES TO INDIAN CHILDREN
"TITLE III—FINANCIAL ASSISTANCE TO LOCAL EDUCATIONAL AGENCIES FOR THE EDUCATION OF INDIAN CHILDREN
SHORT TITLE
"SEC. 301. This title may be cited as the 'Indian Elementary and Secondary School Assistance Act'.
DECLARATIOX OF POLICY
SEC. 302. (a) In recognition of the special educational needs of Indian students in the United States, Congress hereby declares it to be the policy of the United States to provide financial assistance to local educational agencies to develop and carry out elementary and secondary school programs specially designed to meet these special educational needs.
"(b) The Commissioner shall, in order to effectuate the policy set forth in subsection (a), carry out a program of making grants to local educational agencies which are entitled to payments under this title and which have submitted, and had approved, applications therefor, in accordance with the provisions of this title.
1978 Tribally Controlled Community Colleges Assistance Act Public Law 95-471 – 92 Stat 1325 October 17, 1978.
An Act
To provide for grants to tribally controlled community colleges, and for other
purposes.
Be it enacted hy the Senate and House of Representatives of the United States of America in Congress assemhled, That this Act may be cited as the "Tribally Controlled Community College Assistance Act of 1978".
TITLE I—TRIBALLY CONTROLLED COMMUNITY COLLEGES
PURPOSE
SEC. 101. I t is the purpose of this title to provide grants for the operation and improvement of tribally controlled community colleges to insure continued and expanded educational opportunities for Indian students.
SEC. 102. (a) The Secretary is authorized to make grants pursuant to this title to tribally controlled community colleges to aid in the postsecondary education of Indian students.
(b) Grants made pursuant to this title shall go into the general operating funds of the institution to defray the expense of activities related to education programs for Indian students. Funds provided pursuant to this title shall not be used in connection with religious worship or sectarian instruction.
SEC. 103. To be eligible for assistance under this title, a tribally controlled community college must be one which—
(1) is governed by a board of directors or board of trustees a majority of which are Indians;
(2) demonstrates adherence to stated goals, a philosophy, or a plan of operation which is directed to meet the needs of Indians; and
(3) if in operation for more than one year, has students a majority of whom are Indians.
1992 Native American Language Act Public Law 102-524 – 106 Stat 3434 October 26, 1992.
SEC. 2. GRANT PROGRAM.
The Native American Programs Act of 1974 (42 U.S.C. 2991et seq.) is amended by inserting before section 804 the following:
"SEC. 803C. GRANT PROGRAM TO ENSURE THE SURVIVAL AND CONTINUING
VITALITY OF NATIVE AMERICAN LANGUAGES.
"(a) AUTHORITY To AWARD GRANTS.—The Secretary shall award a grant to any agency or organization that is—
"(1) eligible for financial assistance under section 803(a); and
"(2) selected under subsection (c); to be used to assist Native Americans in ensuring the survival
and continuing vitality of Native American languages.
"(b) PURPOSES FOR WHICH GRANTS MAY BE USED.—The purposes for which each grant awarded under subsection (a) may be used include, but are not limited to—
"(1) the establishment and support of a community Native American language project to bring older and younger Native Americans together to facilitate and encourage the transfer of Native American language skills from one generation to another;
"(2) the establishment of a project to train Native Americans to teach a Native American language to others or to enable them to serve as interpreters or translators of such language;
"(3) the development, printing, and dissemination of materials to be used for the teaching and enhancement of a Native American language;
"(4) the establishment or support of a project to train Native Americans to produce or participate in a television or radio program to be broadcast in a Native American language;
"(5) the compilation, transcription, and analysis of oral testimony to record and preserve a Native American language; and
"(6) the purchase of equipment (including audio and video recording equipment, computers, and software) required to conduct a Native American language project.
Secondly, Supreme Court rulings
Morton v Mancari 417 US 535 1974
Syllabus
Appellees, non-Indian employees of the Bureau of Indian Affairs (BIA), brought this class action claiming that the employment preference for qualified Indians in the BIA provided by the Indian Reorganization Act of 1934 contravened the anti-discrimination provisions of the Equal Employment Opportunities Act of 1972, and deprived them of property rights without due process of law in violation of the Fifth Amendment. A three-judge District Court held that the Indian preference was implicitly repealed by § 11 of the 1972 Act proscribing racial discrimination in most federal employment, and enjoined appellant federal officials from implementing any Indian employment preference policy in the BIA.
Held:
1. Congress did not intend to repeal the Indian preference, and the District Court erred in holding that it was repealed by the 1972 Act. Pp. 417 U. S. 545-551.
(a) Since in extending general anti-discrimination machinery to federal employment in 1972, Congress in no way modified, and thus reaffirmed, the preferences accorded Indians by §§ 701(b) and 703(i) of Title VII of the Civil Rights Act of 1964 for employment by Indian tribes or by private industries located on or near Indian reservations, it would be anomalous to conclude that Congress intended to eliminate the longstanding Indian preferences in BIA employment, as being racially discriminatory. Pp. 417 U. S. 547-548.
(b) In view of the fact that, shortly after it passed the 1972 Act, Congress enacted new Indian preference laws as part of the Education Amendments of 1972, giving Indians preference in Government programs for training teachers of Indian children, it is improbable that the same Congress condemned the BIA preference as racially discriminatory. Pp. 417 U. S. 548-549.
Page 417 U. S. 536
(c) The 1972 extension of the Civil Rights Act to Government employment being largely just a codification of prior anti-discrimination Executive Orders, with respect to which Indian preferences had long been treated as exceptions, there is no reason to presume that Congress affirmatively intended to erase such preferences. P. 417 U. S. 549
(d) This is a prototypical case where an adjudication of repeal by implication is not appropriate, since the Indian preference is a longstanding, important component of the Government's Indian program, whereas the 1972 anti-discrimination provisions, being aimed at alleviating minority discrimination in employment, are designed to deal with an entirely different problem. The two statutes, thus not being irreconcilable, are capable of coexistence, since the Indian preference, as a specific statute applying to a specific situation, is not controlled or nullified by the general provisions of the 1972 Act. Pp. 417 U. S. 549-551.
2. The Indian preference does not constitute invidious racial discrimination in violation of the Due Process Clause of the Fifth Amendment, but is reasonable and rationally designed to further Indian self-government. Pp. 417 U. S. 551-555.
(a) If Indian preference laws, which were derived from historical relationships and are explicitly designed to help only Indians, were deemed invidious racial discrimination, 25 U.S.C. in its entirety would be effectively erased and the Government's commitment to Indians would be jeopardized. Pp. 417 U. S. 551-553.
(b) The Indian preference does not constitute "racial discrimination" or even "racial" preference, but is rather an employment criterion designed to further the cause of Indian self-government and to make the BIA more responsive to the needs of its constituent groups. Pp. 417 U. S. 553-554.
(c) As long as the special treatment of Indians can be tied rationally to the fulfillment of Congress' unique obligation toward Indians, such legislative judgments will not be disturbed. Pp. 417 U. S. 554-555.
359 F. Supp. 585, reversed and remanded.
Morton v Ruiz 415 US 199 1974
Syllabus
Respondent Ruiz and his wife, Papago Indians, left their reservation in Arizona in 1940 to live in an Indian community a few miles away, and Ruiz found employment at a nearby mine. During a prolonged strike, Ruiz applied for but was denied general assistance benefits under the Snyder Act by the Bureau of Indian Affairs (BIA) because of a provision in the BIA Manual limiting eligibility to Indians living "on reservations" (and in jurisdictions under the BIA in Alaska and Oklahoma). After unsuccessful administrative appeals, respondents instituted this purported class action, claiming, inter alia, entitlement to such general assistance as a matter of statutory interpretation. The District Court's summary judgment for petitioner was reversed by the Court of Appeals on the ground that the Manual's residency limitation was inconsistent with the broad language of the Snyder Act, that Congress intended general assistance benefits to be available to all Indians, including those in respondents' position, and that Congress' subsequent actions in appropriating funds for the BIA general assistance program did not serve to ratify the imposed limitation.
Held:
1. Congress did not intend to exclude from the BIA general assistance program these respondents, and their class, who are full-blooded, unassimilated Indians living in an Indian community near their native reservation and who maintain close economic and social ties with that reservation. Pp. 415 U. S. 212-230.
(a) The legislative history of the subcommittee hearings regarding appropriations under the Snyder Act showing that the BIA's usual practice has been to represent to Congress that "on or near" reservations is the equivalent of "on" for purposes of welfare service eligibility, and that successive budget requests were for Indians living "on or near," and not just for those living directly "on," clearly shows that Congress was led to believe that
Page 415 U. S. 200
the programs were being made available to those nonassimilated Indians living near the reservation as well as to those living "on," and a fair reading of such history can lead only to the conclusion that Indians situated near the reservation, such as respondents, were covered by the authorization. Pp. 415 U. S. 213-229.
(b) The fact that Congress made appropriations during the time the "on reservations" limitation appeared in the BIA Manual does not mean that Congress implicitly ratified the BIA policy, where such limitation had not been published in the Federal Register or in the Code of Federal Regulations, and there is nothing in the legislative history to show that the limitation was brought to the appropriation subcommittees' attention, let alone to the entire Congress. But, even assuming that Congress knew of the limitation when making appropriations, there is no reason to assume that it did not equate the "on reservations" language with the "on or near" category that continuously was described as the service area. P. 415 U. S. 230.
2. Assuming, arguendo, that the Secretary rationally could limit the "on or near" appropriation to include only Indians who lived directly "on" the reservation (plus those in Alaska and Oklahoma), this has not been validly accomplished. Pp. 415 U. S. 230-238.
(a) By not publishing its general assistance eligibility requirement in the Federal Register or in the Code of Federal Regulations, the BIA has failed to comply with the requirements of the Administrative Procedure Act (APA) as to publication of substantive policies. The Secretary's conscious choice not to treat this extremely significant requirement as a legislative type rule, renders it ineffective so far as extinguishing the rights of those otherwise within the class of beneficiaries contemplated by Congress. Pp. 415 U. S. 232-236.
(b) Moreover, the BIA has failed to comply with its own internal procedures, since the "on reservations" limitation is clearly an important substantive policy within the class of directives -- those that "inform the public of privileges and benefits available" and of "eligibility requirements" -- that the BIA Manual declares are among those to be published. P. 415 U. S. 235.
(c) Even assuming the lack of binding effect of the BIA policy, it is too late to argue that the words "on reservations" in the BIA Manual mean something different from "on or near," and therefore are entitled to deference as an administrative interpretation
Page 415 U. S. 201
when in fact, the two have been continuously equated by the BIA to Congress. Pp. 415 U. S. 236-237.
462 F.2d 818, affirmed and remanded.
Santa Clara Pueblo v Martinez 436 US 49 1978
Syllabus
Respondents, a female member of the Santa Clara Pueblo and her daughter, brought this action for declaratory and injunctive relief against petitioners, the Pueblo and its Governor, alleging that a Pueblo ordinance that denies tribal membership to the children of female members who marry outside the tribe, but not to similarly situated children of men of that tribe, violates Title I of the Indian Civil Rights Act of 1968 (ICRA), 25 U.S.C. §§ 1301-1303, which, in relevant part, provides that "[n]o Indian tribe in exercising powers of self-government shall . . . deny to any person within its jurisdiction the equal protection of its laws." 25 U.S.C. § 1302(8). The ICRA's only express remedial provision, 25 U.S.C. § 1303, extends the writ of habeas corpus to any person, in a federal court, "to test the legality of his detention by order of an Indian tribe." The District Court held that jurisdiction was conferred by 28 U.S.C. § 1343(4) and 25 U.S.C. § 1302(8), apparently concluding that the substantive provisions of Title I impliedly authorized civil actions for declaratory and injunctive relief, and also that the tribe was not immune from such a suit. Subsequently, the court found for petitioners on the merits. The Court of Appeals, while agreeing on the jurisdictional issue, reversed on the merits.
Held:
1. Suits against the tribe under the ICRA are barred by the tribe's sovereign immunity from suit, since nothing on the face of the ICRA purports to subject tribes to the jurisdiction of federal courts in civil actions for declaratory or injunctive relief. Pp. 436 U. S. 58-59.
2. Nor does § 1302 impliedly authorize a private cause of action for declaratory and injunctive relief against the Pueblo's Governor. Congress' failure to provide remedies other than habeas corpus for enforcement of the ICRA was deliberate, as is manifest from the structure of the statutory scheme and the legislative history of Title I. Pp. 436 U.S. 59-72.
(a) Congress was committed to the goal of tribal self-determination, as is evidenced by the provisions of Title I itself. Section 1302 selectively incorporated and in some instances modified the safeguards of the Bill of Rights to fit the unique needs of tribal governments, and other parts of the ICRA similarly manifest a congressional purpose to protect tribal sovereignty from undue interference. Creation of a federal cause
Page 436 U. S. 50
of action for the enforcement of § 1302 rights would not comport with the congressional goal of protecting tribal self-government. Pp. 436 U. S. 62-65.
(b) Tribal courts, which have repeatedly been recognized as appropriate forums for adjudicating disputes involving important interests of both Indians and non-Indians, are available to vindicate rights created by the ICRA. Pp. 436 U. S. 65-66.
(c) After considering numerous alternatives for review of tribal criminal convictions, Congress apparently decided that review by way of habeas corpus would adequately protect the individual interests at stake while avoiding unnecessary intrusions on tribal governments. Similarly, Congress considered and rejected proposals for federal review of alleged violations of the ICRA arising in a civil context. It is thus clear that only the limited review mechanism of § 1303 was contemplated. Pp. 436 U. S. 66-70.
(d) By not exposing tribal officials to the full array of federal remedies available to redress actions of federal and state officials, Congress may also have considered that resolution of statutory issues under § 1302, and particularly those issues likely to arise in a civil context, will frequently depend on questions of tribal tradition and custom that tribal forums may be in a better position to evaluate than federal courts. Pp. 436 U. S. 71-72.
540 F.2d 1039, reversed.