Volume 18 Number 3
May 1979

Harold G. Begay

ANYONE examining the legal relationship of the Native People of North America to the United States will conclude that it is invariably complex, or puzzling, or irritating, or all three, posing at once ". . . vexed questions on conflicting empires" (see Note 5). One Supreme Court justice commented that the relationship is more an embarrassment to the states than unique:

Others have been moved to question whether nobility status hasn’t been conferred upon Native Americans:

Some can only conclude that this long-standing relationship ". . . is deeply affected by the social, economic, and historical context" (see Note 10). With this perspective, a strong case could be made that the relationship has been one ". . . long history of inconsistent laws and regulations, ill-conceived policies and contradictory reforms . . . (see Note 10), policies and deeds which have included, "...peacemaking diplomacy, armed conflict, tribal removal, subjugation, extermination, concentration, assimilation, termination, and self-government—not necessarily in that order" (see Note 10).

For others, the concession appears to be that this notorious relationship, predating the ratification of the Constitution, will but remain a source of enigma and irritation. Thus, after some 400 years of such Native and European contact, and a rather extensive volume of legislation, some ". . . 5,000 statutes, 2,000 regulations, 389 treaties, 2,000 federal court decisions, and 500 Opinions of the Attorney General," it should hardly surprise anyone as to why the Native People continue to remain, in every sense of the phrase, ". . . among the poorest members of American society" (see Note 10).

Certainly then, individual Constitutional rights for all U.S. citizens bear closer examination. The contention here is that unless some fundamental intangible changes, however seemingly infinitesimal, are brought about on behalf of Native People, one can expect this bastion of infamy to remain with the American people at large.

The focus of this article is, then, not to bemoan past or present circumstances of Native Americans, but rather to examine some federal legislation and court opinions relative to citizenship status and constitutional rights, and to subject some policies and practices focusing on Native American education to these legislation and court opinions. Specifically, the points of investigation are:

In looking at a current Navajo Area, Bureau of Indian Affairs educational policy and practice—specifically the role, authority, powers and duties of elected school board members in BIA schools on the Navajo reservation—one is left with the clear impression that the overly zealous civil servants continue to remain. The Navajo Area education, acting after a 1969 Tribal Resolution, CAU 87-69, adopted the Navajo Tribal Community School Board Act in 1973 (see Note 8). In part, the following were the identified powers, authority and duties of the local community school boards:

The reader is left to his own discretion as to whether the local school board in question and its constituents have the right to control the education of its children. However well-intentioned the community school board acts, the key terms in the above extract restricting the role of board members in carrying out their duties and responsibilities are implied in the phrase, ". . . authority to advise. . . ." Clearly, with this wording, board members now only serve as advisors in the education of their own offspring.

Paradoxically, in American society, this parental right of control in educating one’s child is considered of utmost importance. This doctrine has been reiterated in the courts:

In another case, the Supreme Court delivered the opinion that no legislation is to be enacted which would interfere ". . . with the liberty of parents and guardians to direct the upbringing and education of children under their control" (see Note 9)

To those who would question whether Supreme Court rulings and opinions are legally applicable to the Native People, a brief overview of the legal status of Native People may help.

It is common knowledge today that Native Americans are U.S. citizens (see Note 14). An act of June 2, 1924, in a bill entitled, "A Bill Granting Citizenship to Indians and for other purposes" (see Note 1) gave citizenship status to all Native People born within the territorial limits of the United States. With this act then, Native People assumed, ". . . and are assuming the obligations and duties of that status" (see Note 1) and additionally, ". . . they have Constitutional rights, liberties, privileges and immunities" (see Note 1).

Thus, it is made pointedly clear that Native Americans, as all other U.S. citizens, have vested Constitutional rights, obligations and immunities. But is it not possible that the term "immunities" might lessen their Constitutional rights? To clarify this question, perhaps a brief examination of the extent of Constitutional rights is in order. First, it must be made clear that the Constitution is the ". . . supreme Law of the Land" (see Note 6). Now, in a 1923 Supreme Court ruling (see Note 7), the Chief Justice delivered an opinion wherein several paragraphs were directed toward the extent of Constitutional rights. Mr. Justice Reynolds, in that ruling, wrote in part:

In reference to the Native Americans specifically, in the 1899 and the 1937 Supreme Court cases (see Notes 12 and 13), points reaffirmed were that although Congress does have the ". . . plenary power of legislation . . ." in regards to Indian affairs, this legislative power is restricted—in that it is ". . . subject only to the Constitution of the United States" (see Note 12).

Thus, clearly, Native Americans, as U.S. citizens with Constitutional rights, are not totally at the mercy of Congressional legislation, as the "plenary power of legislation" phrase would seem to imply, and the courts seem to have pretty well clarified the extent of vested Constitutional rights of U.S. citizens. This reasoning appears to hold true in the U.S. judicial system; a point was made to this effect in an overview of the legal status of Native Americans:

With this, then, for practitioners in Native-American education who advocate and abide by the opinion that ". . . Indian communities which seek increased control of their schools have no choice but to work within a system, be it BIA . . ." (see Note 11) is, in short, constitutionally suspect. It is this writer’s position that the current Bureau policy of allowing BIA school board members to serve only in an advisory capacity in the education of Navajo children and students is an abridgement of Constitutional rights.

While the effort here has not been to construct and present a legal brief, a strong recommendation does appear in order. Current school board members would do well to seek all available legal recourse to more thoroughly subject the current Navajo Area BIA School Board Policy to legal scrutiny. Failure to do so can but leave the community and concerned individuals to initiate and undertake such appropriate action.

1. Federal Indian Law. 2nd ed., Association of American Indian Affairs. New York: 1966.

2. Deloria Jr., V. Of Utmost Good Faith. New York: Bantam, Inc., 1972.

3. Caldwell vs. the State of Alabama.

4. Johnson, R. W. Studies in American Indian Law. University of Washington, 1970.

5. Makah Indian Tribe vs. Clallan County. 73 Wash. 2d. 677, 687, 440 P. Rd. 442, 448 (1968).

6 Marbury vs Madison. I Cranch 137. 780 (1803).

7. Meyer vs State of Nebraska. 43 S. Ct. 625. 1923.

8. Navajo Area School Board Association. Bureau of Indian Affairs, Window Rock, Az.

9. Pierce vs. Society of Sisters of the Holy Names, etc. 45 S.Ct., 571. 1925.

10. Rosen, L. "The American Indian and the Law." Law and Contemporary Problems. Duke University School of Law. 40. 1976.

11. Rosenfelt, D.M. "Indian Schools and Community Control." Stanford Law Review. Stanford University School of Law. 25. 1972/73.

12. Stephens vs. Cherokee Nation. 174 U.S. 445, 478. (1899). 13 Shoshone Tribe of Indians vs. U.S. 299, U.S. 476. (1937). 1443 Stat. 253. 8 U.S.C. 3.