The various species of the genus Lophophora
grow low to the ground and they often form groups with numerous,
crowded shoots. The blue-green, yellow-green or sometimes reddish-green
shoots are mostly flattened spheres with sunken shoot tips. They can
reach heights of from 2 to 7 centimeters (0.79 to 2.76 in) and diameters
of 4 to 12 cm (1.6 to 4.7 in). There are often significant, vertical
ribs consisting of low and rounded or hump-like bumps. From the cusp areoles
arises a tuft of soft, yellowish or whitish woolly hairs. Spines are
absent.
Flowers are pink or white to slightly yellowish, sometimes reddish. They
open during the day, are from 1 to 2.4 cm long, and reach a diameter
from 1 to 2.2 cm.
Lophophora williamsii seedling at roughly 1 1/2 months of age
The cactus produces flowers sporadically; these are followed by small
edible pink fruit. The club-shaped to elongated, fleshy fruits are bare
and more or less rosy colored. At maturity, they are brownish-white and
dry. The fruits do not burst open on their own and they are between 1.5
and 2 cm long. They contain black, pear-shaped seeds that are 1 to
1.5 mm long and 1 mm wide.
The seeds require hot and humid conditions to germinate. Peyote contains
a large spectrum of phenethylamine alkaloids. The principal one is mescaline for which the content of Lophophora williamsii is about 0.4% fresh (undried) and 3–6% dried.
Peyote is extremely slow growing. Cultivated specimens grow
considerably faster, sometimes taking less than three years to go from
seedling to mature flowering adult. More rapid growth can be achieved by
grafting peyote onto mature San Pedro root stock.
The top of the above-ground part of the cactus, the crown, consists of
disc-shaped buttons. These are cut above the roots and sometimes dried.
When done properly, the top of the root forms a callus and the root does
not rot.
When poor harvesting techniques are used, however, the entire plant
dies. Currently in South Texas, peyote grows naturally but has been
over-harvested, to the point that the state has listed it as an endangered species.
The buttons are generally chewed, or boiled in water to produce a
psychoactive tea. Peyote is extremely bitter and most people are nauseated before they feel the onset of the psychoactive effects.
Distribution and habitat
Range of wild peyote
L. williamsii is native to southern North America, mainly distributed in Mexico. In the United States it grows in Southern Texas. In Mexico it grows in the states of Chihuahua, Coahuila, Nuevo León, and Tamaulipas in the north to San Luis Potosi and Zacatecas. It is primarily found at elevations of 100–1,500 m (330–4,920 ft) and exceptionally up to 1,900 m (6,200 ft) in the Chihuahuan desert,
but is also present in the more mild climate of Tamaulipas. Its habitat
is primarily in desert scrub, particularly thorn scrub in Tamaulipas.
It is common on or near limestone hills.
Uses
Psychoactive and medicinal
Dried Lophophora williamsii slices ("Peyote Buttons") with a US 5 cent coin for scale
When used for its psychoactive
properties, common doses for pure mescaline range from roughly 200 to
400 mg. This translates to a dose of roughly 10 to 20 g of dried peyote
buttons of average potency; however, potency varies considerably between
samples, making it difficult to measure doses accurately without first
extracting the mescaline. The effects last about 10 to 12 hours. Peyote is reported to trigger rich visual or auditory effects.
In addition to psychoactive use, some Native American tribes use
the plant in the belief it may have curative properties. They employ
peyote to treat such varied ailments as toothache, pain in childbirth, fever, breast pain, skin diseases, rheumatism, diabetes, colds, and blindness. The US Dispensatory lists peyote under the name Anhalonium, and states it can be used in various preparations for neurasthenia, hysteria and asthma. Peyote also contains an alkaloid called peyocactin. It is now called hordenine.[citation needed] Peyote poisoning has been a concern in California.
Chemical structure of hordenine (peyocactin), an antimicrobial compound contained in the peyote cactus
History
In 2005 researchers used radiocarbon dating and alkaloid analysis to study two specimens of peyote buttons found in archaeological digs from a site called Shumla Cave No. 5 on the Rio Grande in Texas. The results dated the specimens to between 3780 and 3660 BCE.
Alkaloid extraction yielded approximately 2% of the alkaloids including
mescaline in both samples. This indicates that native North Americans
were likely to have used peyote since at least five-and-a-half thousand
years ago.
Specimens from a burial cave in west central Coahuila, Mexico have been similarly analyzed and dated to 810 to 1070 CE.
From earliest recorded time, peyote has been used by indigenous peoples, such as the Huichol of northern Mexico and by various Native American tribes, native to or relocated to the Southern Plains states of present-day Oklahoma and Texas. Its usage was also recorded among various Southwestern Athabaskan-language tribal groups. The Tonkawa, the Mescalero, and Lipan Apache were the source or first practitioners of peyote religion in the regions north of present-day Mexico. They were also the principal group to introduce peyote to newly arrived migrants, such as the Comanche and Kiowa from the Northern Plains. The religious, ceremonial, and healing uses of peyote may date back over 2,000 years.
Under the auspices of what came to be known as the Native American Church,
in the 19th century, American Indians in more widespread regions to the
north began to use peyote in religious practices, as part of a revival
of native spirituality. Its members refer to peyote as "the sacred
medicine", and use it to combat spiritual, physical, and other social
ills. Concerned about the drug's psychoactive effects, between the 1880s
and 1930s, U.S. authorities attempted to ban Native American religious
rituals involving peyote, including the Ghost Dance.
Today the Native American Church is one among several religious
organizations to use peyote as part of its religious practice. Some
users claim the drug connects them to God.
Traditional Navajo belief or ceremonial practice did not mention the use of peyote before its introduction by the neighboring Utes. The Navajo Nation now has the most members of the Native American Church.
Dr. John Raleigh Briggs (1851–1907) was the first to draw scientific attention of the Western scientific world to peyote. Louis Lewin described Anhalonium lewinii in 1888. Arthur Heffter conducted self experiments on its effects in 1897. Similarly, NorwegianethnographerCarl Sofus Lumholtz studied and wrote about the use of peyote among the Indians of Mexico. Lumholtz also reported that, lacking other intoxicants, Texas Rangers captured by Union forces during the American Civil War soaked peyote buttons in water and became "intoxicated with the liquid".
Adverse reactions
A study published in 2007 found no evidence of long-term cognitive problems related to peyote use in Native American Church ceremonies, but researchers stressed their results may not apply to those who use peyote in other contexts. A four-year large-scale study of Navajo who regularly ingested peyote found only one case where peyote was associated with a psychotic break
in an otherwise healthy person; other psychotic episodes were
attributed to peyote use in conjunction with pre-existing substance
abuse or mental health problems. Later research found that those with pre-existing mental health issues are more likely to have adverse reactions to peyote. Peyote use does not appear to be associated with hallucinogen persisting perception disorder (a.k.a. "flashbacks") after religious use. Peyote does not seem to be associated with physical dependence, but some users may experience psychological dependence.
Peyote can have strong emetic effects, and one death has been attributed to esophageal bleeding caused by vomiting after peyote ingestion in a Native American patient with a history of alcohol abuse. Peyote is also known to cause potentially serious variations in heart rate, blood pressure, breathing, and pupillary dilation.
Research into the huichol natives of central-western Mexico, who have taken peyote regularly for an estimated 1,500 years or more, found no evidence of chromosome damage in either men or women.
Cultural significance
A Native American Peyote Drummer (circa 1927)
Huichol culture
The Huichol religion consists of four principal deities:
Corn, Blue Deer, Peyote, and the Eagle, all descended from their Sun
God, "Tao Jreeku". Schaefer has interpreted this to mean that peyote is
the soul of their religious culture and a visionarysacrament that opens a pathway to the other deities.
A State on whose territory there
are plants growing wild which contain psychotropic substances from among
those in Schedule I and which are traditionally used by certain small,
clearly determined groups in magical or religious rites, may, at the
time of signature, ratification or accession, make reservations
concerning these plants, in respect of the provisions of article 7,
except for the provisions relating to international trade.
However, this exemption would apply only if the peyote cactus were
ever explicitly added to the Schedules of the Psychotropic Convention.
Currently the Convention applies only to chemicals. Peyote and other
psychedelic plants are neither listed nor regulated by the Convention.
Canada
Mescaline is listed as a Schedule III controlled substance under the Canadian Controlled Drugs and Substances Act, but peyote is specifically exempt. Possession and use of peyote plants is legal.
Section 1307.31 Native American Church. The listing of
peyote as a controlled substance in Schedule I does not apply to the
nondrug use of peyote in bona fide religious ceremonies of the Native
American Church, and members of the Native American Church so using
peyote are exempt from registration. Any person who manufactures peyote
for or distributes peyote to the Native American Church, however, is
required to obtain registration annually and to comply with all other
requirements of law.
U.S. v. Boyll, 774 F.Supp. 1333 (D.N.M. 1991) addresses this racial issue specifically and concludes:
For the reasons set out in this Memorandum Opinion and
Order, the Court holds that, pursuant to 21 C.F.R. § 1307.31
(1990), the classification of peyote as a Schedule I controlled
substance, see 21 U.S.C. § 812(c), Schedule I(c)(12), does not
apply to the importation, possession or use of peyote for 'bona
fide' ceremonial use by members of the Native American Church,
regardless of race.
Following the passage of the American Indian Religious Freedom Act Amendments of 1994, United States federal law (and many state laws) protects the harvest, possession, consumption and cultivation of peyote as part of "bona fide religious ceremonies" (the federal statute is the American Indian Religious Freedom Act, codified at 42 U.S.C.§ 1996a,
"Traditional Indian religious use of the peyote sacrament", exempting
only use by Native American persons. US v. Boyll expanded permitted use
to all persons engaged in traditional Indian use, regardless of race.
All US states with the exception of Idaho and Texas allow usage by
non-native, non-enrolled persons in the context of ceremonies of the Native American Church.
Some states such as Arizona additionally exempt any general bona fide
religious activity or spiritual intent. US jurisdictions enacted these
specific statutory exemptions in reaction to the US Supreme Court's decision in Employment Division v. Smith, 494U.S.872
(1990), which held that laws prohibiting the use of peyote that do not
specifically exempt religious use nevertheless do not violate the Free Exercise Clause of the First Amendment. Peyote is listed by the United States DEA as a Schedule I controlled substance.
Native American civil rights are the civil rights of Native Americans in the United States. Native Americans are citizens of their clanic nations as well as the United States, and those clanic nations are characterized under the Law of the United States as "domestic dependent nations", a special relationship that creates a particular tension between rights retained via tribal sovereignty and rights that individual Natives obtained as U.S. citizens.
This status creates tension today, but was far more extreme before
Native people were uniformly granted U.S. citizenship in 1924. Assorted
laws and policies of the United States government, some tracing to the
pre-Revolutionary colonial period, denied basic human rights—particularly in the areas of cultural expression and travel—to indigenous people.
Though it is difficult to summarize the many tribes and peoples
Native to the land that is now owned by the United States, there are
some rights that nearly all Native Americans are still actively
pursuing. These include the protection of rights to voting, and the
resistance to cultural assimilation of Native Americans. Many tribes that live on Indian reservations are currently facing the destruction of surrounding environments and water sources, depressed economies, violence against women, and drug and alcohol addiction crises.
Pre-contact with Europeans
Before colonization, millions of Native people lived in what is now considered North America and South America. Indigenous peoples' cultures, origins, religions, and languages are vastly diverse. The histories of the tribes who have survived the genocide of Native Americans have mostly survived through oral story telling traditions.
Religious practices among Natives, pre-colonialism range from
individual prayers, rituals, and offerings to large intertribal
ceremonies. Precontact religion was often closely tied to the land, the environment.
These concerns include the omnipresent, invisible universal force, and
"the three 'life crises' of birth, puberty, and death," spiritual
beings, revelations, human intercessors into the spirit world, and
ceremonies that renew communities.
1585-1786: Initial meetings
In 1585, a tribe on the eastern coast of North America interacted with the first English person to travel to the continent, Richard Grenville.
The Native people were hospitable and receptive to Grenville. Yet, when
one Native stole a small silver cup from him, Grenville sacked and
burned down the entire village in revenge.
In 1607, decades after this initial interaction, the English established Jamestown, the first permanent English settlement on North America, in the middle of the Powhatan confederacy in what is now Virginia. Powhatan, the leader, did not attack the English as they settled, though the English attacked the Powhatans upon meeting them.
In the winter of 1609 through 1610, Jamestown residents had little food or effective shelter as they experienced the Starving Time.
The Powhatan people integrated and cared for the English who left
Jamestown to live with them, as they were much more prepared for the
harsh winter.
In the summer, when the governor of Jamestown requested that Powhatan
return the runaways, he offered vague comments that the English
considered rude, but showed no intention to bring them back. In
response, the English terrorized a local village, killing about 15
Powhatan, burning the houses down, cutting the corn supply, and
kidnapping and murdering the queen and her children.
The Powhatans had never seen this magnitude of hatred before
Jamestown's establishment; as the chief roughly said in a letter to Captain John Smith:
I
have seen two generations of my people die...I know the difference
between peace and war better than any man in my country... Why will you
take by force what you may have quietly by love? Why will you destroy us
who supply you with food? What can you get by war? We can hide our
provisions and run into the woods; then you will starve for wronging
your friends. Why are you jealous of us? We are unarmed, and willing to
give you what you ask, if you come in a friendly manner, and not so
simple as not to know that is it much better to eat good meat, sleep
comfortably, live quietly with my wives and children, laugh and be merry
with the English, and trade for their copper and hatchets, than to run
away from them, and to lie cold in the wood, feed on acorns, roots and
such trash, and be so hunted that I can neither eat nor sleep... Take
away your guns and swords, the cause of all our jealousy, or you my all
die in the same manner.
Christianization and assimiliation
Many European colonizers believed that it was their sacred duty and calling from God to convert Native Americans to Christianity. Spaniards practiced Christianization in the New World using Pope Alexander VI's papal bull, Inter caetera.
This allowed rulers to "bring under their sway [non-Christian]
'countries and islands' discovered by Columbus, along with 'their
residents and inhabitants, and to bring them to the Catholic faith.'"
The missionaries developed "praying towns" to create "orderly
Christian communities filled with model converts who were living and
working under the watchful eye of a priest or pastor".
Within these communities, converts to the Christian faith would be
placed in a separate area from the remainder of the tribe in order to
prevent regression back to their native beliefs. Missionaries such as John Eliot, a Puritan, and Isaac McCoy, a Baptist,
led the way in the spread of their beliefs within these types of towns
and among the natives. These towns led the way to the future separation
of the natives from the remainder of society in Native American reservations.
1900-1945
Criticizing colonialism
Native
peoples have been active in educating nonnatives on the cultures,
histories, and experiences of their tribes since the beginning of
colonization. Chief Plenty Coups of the Crow Nation in Montana and Alfred Kiyana of the Mesquakie Settlement in Iowa spoke to historians, anthropologists,
and journalists through translators to criticize idea of "American
progress" and to express pride and faith in the identities of their own
cultures.
Charles Eastman, a Mdewakanton and Wahpeton Sioux and physician, published books and articles in English for American people to show that it is not savage that Native people celebrate what Mourning Dove called the "ancient way". In 1902, Gertrude Bonnin told the Atlantic Monthly that the traditions of her tribe, the Yankton Dakota Sioux, were not only equal to European Americans, but that their values were superior.
Involvement with US politics
In 1903, Charles Eastman, a Santee Dakotan and Native representative, was requested by Theodore Roosevelt to help Sioux people choose English names
in order to protect their lands from being taken. Lands registered with
the birth and natural names of Natives were often lost due to confusion
the United States government employees had with filling paperwork.
The United States government has a strong history making deals with Native Americans and not keeping them.Thomas Bishop, a Snohomish man, recorded his elders' memories of U.S. promises and compared them to the actual texts in treaties.
He published a piece based on these discrepancies in 1915 titled "An
Appeal to the Government to Fulfill Sacred Promises Made 61 Years Ago."
Following this, he and other citizens of Pacific Northwest tribes organized all the Tulalip agency reservations and several off-reservation communities into the Northwestern Federation of American Indians with the goal of redeeming promises made in treaties.
Post World War II: 1946-1959
Many Native Americans aided the United States in World War II.
Veterans came back from serving, only to find that the US government
and American people would not recognize their contributions to the war
effort. This encouraged Natives to begin moving towards activism that
was more focused on tribal sovereignty and self-determination.
Advocacy groups, such as the National Congress of American Indians (NCAI), which was founded in 1944, began representing tribal interests to the public and to Congress.
The NCAI's founding members came from a wide variety of professionals
including veterans, anthropologists, lawyers, elected state and federal
officials, and a professional baseball player, George Eastman, and half
of them had previously served on Indian Rights Association-chartered tribal councils. At least four of them were also members of the Society of American Indians.
Civil Rights Era: 1960-1968
In 1961, the National Indian Youth Council
formed in pursuit of "a greater Indian America". The organization
members were young and had grown out of a summer program that brought
students from all around the US to Boulder, Colorado and introduced to the Southwest Regional Indian Youth Council so that they could learn about the Native state of affairs. The organizations' members, people such as Clyde Warrior, Melvin Thom, Vine Deloria Jr., and Hank Adams,
rejected beliefs that Natives were unable to help themselves or that
they needed to adopt American society as their own. They were seen as an
upset to norms in the Native community, as they were much younger than
other recognized leaders of Native civil rights movements. They
emphasized direct protest action and pursued federal recognition of several then-unrecognized Native nations.
They also organized the first conference where unrecognized Native
community members, tribal chiefs, and US chairpersons shared a public
stage.
Indian Civil Rights Act (1968)
With the passage of the Indian Civil Rights Act
(ICRA) in 1968, also called the Indian Bill of Rights, Native Americans
were guaranteed many civil rights they had been fighting for. The ICRA supports the following:
Right of criminal defendant to a speedy trial, to be advised of the charges, and to confront any adverse witnesses
Right to hire an attorney in a criminal case
Protection against self incrimination
Protection against cruel and unusual punishment, excessive bail, incarceration of more than one year and/or a fine in excess of $5,000 for any one offense
Other civil rights such as sovereignty, hunting and fishing, and voting are still issues facing Native people today.
Contemporary movements (1969-present)
There
has been increased dialogue around the controversy of using Native
American symbols such as for school or team mascots. Concerns are that
the use of the symbols distort Native American history and culture and
often stereotype in offensive ways.
After years of unequal schooling, the National Indian Education Association (NIEA) was formed to fight for equal education for Native Americans in 1969.
Native American advocates went to the United Nations
to seek laws that protected the rights of Native people to own their
own media, and for the prosecution of those who persecuted their
journalists.
Religious rights
Religion after Euro-American contact
Over the last five centuries, "Christianity has made enormous inroads into Native society."
Many religious Native Americans today voluntarily practice
Christianity, both Protestantism and Roman Catholicism, or a combination
of Christianity and Native religion. There was both voluntary and forced conversion; however, not all tribes embraced Christianity, nor did all members of tribes.
"Euro-American contact and interactions contributed much to
Indian marginality and the disruption and destruction of traditional
customs and even the aboriginal use of psychoactive substances. This
process was noted in the 1976 Final Report to the American Indian Policy
Review Commission, Task Force Eleven: Alcohol and Drug Abuse.
The American Indian Religious Freedom Act
was passed in 1978. It allowed freedom of religion except for some
restrictions on use of ceremonial items as the eagle feathers or bones
(a protected species) or peyote (considered a restricted drug by the federal government); however, other laws provide for ceremonial use of these by Native American religious practitioners.
One example of Christianity's influence on Native American
religion is the prominence of the figure of Jesus Christ in peyote
ceremonies of the Native American Church, which is a syncretic religion.
During the Progressive Era
from the 1890s to the 1920s, a "quasi-theocracy" reigned in what
federal policymakers called "Indian Country"; they worked hand-in-hand
with churches to impose Christianity upon Native Americans "as part of
the government's civilizing project".
Keeping in the vein of the colonialists before them, Progressive-Era
policymakers found no need to separate religious endeavors concerning
Native Americans from Native political policy.
The government provided various religious groups with funds to
accomplish Native American conversion. It was during this time that the
government "discouraged or imposed bans on many forms of traditional
religious practices, including the Sun Dance, use of peyote in ceremonial settings and observance of potlatch rituals." The Bureau of Indian Affairs
(BIA), or the "Indian Office", as it was then called, played a role in
the Christianization of Native Americans. Their boarding schools, often
staffed by missionaries, removed Native children from the tribe and away
from the influence of their cultures.
In order to pacify Christians, "some tribal religious practitioners modified elements of their traditional practices".
In the case of the Sun Dance, "a ceremony of renewal and spiritual
reaffirmation", some tribes "omit[ted] the element of self-sacrifice
(many participants observed the ritual of skin piercing), reduced the
number of days for the ceremony from eight to two and otherwise
emphasized the ceremony's social, rather than religious, features". In the past, tribes have also moved religious days to coincide with national U.S. holidays.
Until 1935, Native American people could be fined and sent to prison for practicing certain traditional religious beliefs.
Contemporary Native American religious issues
Established in 1918, the Native American Church "emphasiz[ed] the importance of monogamy, sobriety, and hard work".
Today, it serves as an intertribal, multilingual network. The Native
American Church has had a long struggle with the government of America
due to their ancient and deeply spiritual religious practice using peyote. This a psychoactive substance is found on a cactus and is used for healing practices and in religious ceremonies.
The use of this subject is highly debated due to the outbreaks of drug
use among Americans today. Leaders of the Native American Church argue
that the use of peyote allows for a direct connection with gods and that
peyote is not taken simply for its psychoactive effects. It is taken in
the manner that one might take the sacraments of Christianity.
"Peyote is not habit forming and 'in the controlled ambiance of a
peyote meeting it is in no way harmful'" Rather it is considered a
unifying influence on the Native American life because it provides the
"basis for Indian friendships, rituals, social gatherings, travel,
marriage, and more. It has been a source of healing and means of
expression for a troubled people. And it has resulted in one of the
strongest pan-Indian movements among American Indians".
For years the government has been debating the subject of peyote use. In 1949 peyote use was condemned by the American Medical Association
because findings in their study led them to believe that it was
habit-forming drug. Congress then attempted to regulate the use of
peyote in 1963 with little success, but under the Drug Abuse Control Act
in 1965 it was on the list of forbidden psychedelic drugs. Under this
act it did not place this on Native American peyotists who were using it
for religious practice, though some suffered still under the hands of
the state governments for having it in their possession. State laws
differed from the United States government standards with states
outlawing the use of peyote.
"By 1970, of the seventeen states that still had anti-peyote laws, only
five did not provide exemptions for Indians to use peyote ritually."
These were amended under the pressure from the Native American Church
member if the members showed proof that they were at least 25 percent
Native American. The states laws were generally similar to those of South Dakota,
which says that "when used as a sacrament in services of the Native
American Church in a natural state which is unaltered except for drying
or curing or slicing", peyote use is permitted. In 1978 the American Indian Religious Freedom Act
there was mention of protection for peyote users, but this did not
change the fact that they could still be charged. Because it is an
"established religion of many centuries' history...not a 20th century cult nor a fad subject to extinction at a whim", it continues to be somewhat protected under the law.
Sovereignty
All Native American tribes
are under the U.S. government just as other minority groups. However,
unlike other minority groups who are immigrants to the United States,
Native Americans are indigenous to American land and have therefore
sought and gained sovereignty.
Native sovereignty is made complex by the fact that the British (in
colonial times) and American government also co-exist in the same
country.
Furthermore, Native American "government" is not government in the
western sense of authority and control, but is more like leadership over
a community.
It is difficult to describe Native American government in a definite
manner due to the fact that there are many different Native tribes with
different forms of governing. As of January 2016, there are 566 federally recognized Native American tribes.
During the colonial period, Native American sovereignty was upheld by
the negotiation of treaties between British proprietor and Native
American tribes. Treaties are agreements between two sovereign
governments, and, therefore, the treaties made were made under the
understanding that the tribes had equal sovereignty to the sovereignty
of the colonial governments. The signing of treaties ended with the Indian Appropriations Act of 1871,
which preserved the same rights and privileges, but changed recognition
to "domestic dependent nations" rather than independent nations.
Fishing and hunting rights
Although
Native Americans lost the battle for their lands, the US government
eventually conceded hunting and fishing rights both within the
reservations and on old tribal land that had been sold to and settled.
The reserved rights doctrine allowed for tribes to hunt and fish, along
with any other rights, as long as they were not specifically denied in a
treaty. This angered hunters and fishers who had restrictions placed on
them by the government and they protested against the Natives' right to
fish and hunt off of reservations.
As the United States government pushed to colonize as much of
North America as they could, they began making treaties with tribes, so
that they may have reservations of land. One particular treaty with the Yakama
in the Northwest guarantees that the tribe has the rights to "taking
fish at all usual and accustomed places in common with the citizens of
the Territory". However, in the 1890s, Lineas and Audubon Winans operated a state-licensed fishing mill in Celilo Falls, an important place for fishing to not only the Yakama, but also the Umatilla and the Nez Perce. The Winans decided to develop a fish wheel to catch salmon
by the tons, which would deplete the river of fish for the Natives very
quickly. In addition, the Winans purchased land that made it impossible
for Native people to approach the river at all. The Yakama took this
case to the Supreme Court in United States v. Winans
(1905) and won the rights to fish and to have treaties interpreted by
the US government as the members of tribes would have interpreted them
at the time.
State agencies pointed out that conservation efforts were
possibly compromised by the Native Americans' habits; however the
Supreme Court upheld the privilege with certain cases, such as Antoine v. Washington
(1975), even going so far as to appropriate for Native Americans the
right to hunt and fish on all of their old grounds whether or not they
were currently privately owned, and to prevent private owners from
erecting obstacles to exercising this right. The largest amount of
opposition and resentment towards Native Americans' fishing and hunting
rights stems from the Pacific Northwest.
In 1988, the United States government passed a federal Indian Gaming Regulatory Act, which provides the legislative basis for protecting Native lands for their community health and economic growth.
Traveling rights
During
the 19th and early 20th centuries, the U.S. government attempted to
control the travel of Native Americans off Native reservations. Since
Native Americans did not obtain U.S. citizenship until 1924, they were
considered wards of the state and were denied various basic rights,
including the right to travel. The Bureau of Indian Affairs
(BIA) discouraged off-reservation activities, including the right to
hunt, fish, or visit other tribes. As a result, the BIA instituted a
"pass system" designed to control movement of the Natives. This system
required Natives living on reservations to obtain a pass from a Native
agent before they could leave the reservation.
In addition, agents were often ordered to limit the number of passes
they issued for off-reservation travel. The reasons cited for this
limitation were that Natives with passes often overstayed the time
limits imposed, and many times Natives left without requesting passes.
When this occurred, the military was frequently called to force the
Natives to return their reservations. For example, in April 1863,
Superintendent J. W. Perit Huntington forced 500 Native Americans to
return from the Willamette Valley who had violated the pass system, and estimated that up to 300 Natives were still in the area without US authorization.
While attempting to implement this pass system, the Bureau of
Indian Affairs (BIA) received numerous complaints regarding Natives who
traveled without permission. Many complained that Native Americans were
killing game merely for the sport and were taking the hides. Other
settlers complained that Natives overstayed their visits at neighboring
reservations while neglecting their farming duties at home. For example,
in December, 1893, Governor John E. Osborne of Wyoming wrote a letter to the BIA protesting that Natives from Fort Hall, Lemhi, Wind River, and Crow Reservations
were leaving illegally. In response, the commissioner sent a note to
all Native agents stating that Natives who disobeyed the pass system
would be arrested and punished by state officials.
Additional rules were also implemented at this time. For example, the
Native agents were now required to notify other reservations of the
departure time of Natives, names of Natives, and the route they intended
to follow.
In addition to these concerns, many settlers were unhappy with
the travel of Native Americans on the railroads. For example, the Central Pacific Railroad in Nevada
had granted Natives the privilege of riding on the roof and flatbeds of
rail cars without tickets, in exchange for the right-of-way through
their reservations. Other railroad lines, including the Carson and the Colorado allowed free railroad travel to the Natives. Paiute
Natives, for example, frequently rode the trains to their traditional
hunting and fishing grounds. "Paiutes would pack up their gathering
baskets and hop on the rails, take off a day or two to gather seeds, and
bring their harvest back home again, on the car roofs. Men and women
used free passes to travel into town or to ranches farther in the
hinterlands for jobs."
Angry Native agents, who wanted the Paiutes to stay under their
jurisdiction, wrote letters urging the BIA to stop this free travel.
According to one Native agent, "The injurious effects of this freedom
from restraint, and continual change of place, on the Indian, can not be
overestimated."
The loss of the right to free movement across the country was
difficult for Native Americans, especially since many tribes
traditionally traveled to hunt, fish, and visit other tribes. The
passage of the Indian Citizenship Act
in 1924 granted citizenship to all Natives born in America. As a
result, Native Americans were finally granted free travel in the United
States. At the present time, Native Americans who live on reservations
are free to travel as they wish.
Voting
Beginning in the 18th century and with the creation of the Constitution,
there was a struggle to define the relationship between Native tribes
and the United States, and the terms of citizenship for tribe members.
For example, in the determination of a state's number of House
Representatives, Article I, Section 3 of the Constitution states that "Indians not taxed" are not to be included.
However, the Constitution also stated that Congress has the power to
"regulate Commerce with foreign Nations, and among the several States,
and with the Indian tribes" (Article I, Section 8).
In 1817, the Cherokee became the first Native Americans
recognized as U.S. citizens. Under Article 8 of the 1817 Cherokee
treaty, "Upwards of 300 Cherokees (Heads of Families) in the honest
simplicity of their souls, made and election to become American
citizens." In 1831, however, Cherokee Nation v. Georgia, one of the three Marshall Trilogy
cases, helped define the limits of tribal sovereignty. The Cherokee
nation was determined to be a domestic dependent nation, a relationship
that "resembles that of a ward to a guardian".
This definition meant that Native people did not have a right to vote.
Thus, Native Americans' relationship to the U.S. government continued to
be similar to that of people in an occupied land under the control of a
foreign power. Further clarification was made in 1856 when Attorney General Caleb Cushing
stated, "Indians are the subjects of the United States, and therefore
are not, in mere right of home-birth, citizens of the United States.
After the passage of the first Civil Rights Act in 1866, and adoption of the Fourteenth Amendment
in 1868, the terms and limits of Native citizenship were further
confirmed. The Civil Rights Act of 1866 states, "That all persons born
in the United States, and not subject to any foreign power, excluding
Indians not taxed, are hereby declared to be citizens of the United
States".
Some officials were not prepared for Natives to become citizens and
resisted calls for Native suffrage. During Senate floor debates
regarding the Fourteenth Amendment, Senator Jacob Howard
of Michigan commented, "I am not yet prepared to pass a sweeping act of
naturalization by which all the Indian savages, wild or tame, belonging
to a tribal relation, are to become my fellow-citizens and go to the
polls and vote with me…". This sentiment was echoed by James Rood Doolittle
of Wisconsin, who argued that, "there is a large mass of the Indian
population who are clearly subject to the jurisdiction of the United
States who ought not to be included as citizens of the United States…the
word 'citizen,' if applied to them, would bring in all the Digger Indians of California".
Doolittle was concerned that the proposed amendment would, "...declare
the Utes, the Tabahuaches, all those wild Natives to be citizens of the
United States, the Great Republic of the world, whose citizenship should
be a title as proud as that of king, and whose danger is that you may
degrade that citizenship."
Because of their substantial numbers at the time, Native Americans
would be able to overwhelm the power of the white vote in several
states.
While the Civil Rights Act and Fourteenth Amendment served to
prevent or limit citizenship for Native Americans, there were special
considerations that granted citizenship to some individuals or groups,
which in turn gave them the right to vote. For example, the 1868 Treaty of Fort Laramie created the possibility for the Lakota people to access the right to vote. Article 6
of the treaty stated that Natives could gain citizenship by "receiving a
patent for land under the foregoing provisions… and be entitled to all
the privileges and immunities of such citizens, and shall, at the same
time retain all [their] rights to benefits accruing to Indians under
this treaty". The advantage of this was that the Natives could become citizens yet still maintain their status and rights as Natives.
Even for signatory Native Nations to the Fort Laramie Treaty,
however, it was made clear that though some would become citizens, it
did not mean that they all would gain the right to vote. In 1884, when
John Elk, a Native who lived in Omaha, Nebraska, attempted to register in local elections, he was refused a ballot. When he took the case to Supreme Court and through the Elk v. Wilkins trial, he was ruled against under the circumstances that Natives were not protected under the Fourteenth Amendment.
The Dawes Act
in 1887 continued to pave the pathway for Native citizenship in that
members of certain Native American tribes who accepted an allotment of
land was considered a citizen. The goal was for Natives to, through assimilation, "adopt the habits of civilized life". This movement certainly convinced a lot of Natives to gain citizenship. This is seen through President Theodore Roosevelt's
statement on the allotment policy in which he reported that by 1901,
60,000 Natives had already become citizens of the United States.
Piece by piece, more acts were created that added Natives to the citizenship rolls.
When the Native Territory (what is now Oklahoma) was abolished in 1907,
all Natives who lived in that territory were made citizens through the Oklahoma Enabling Act.
Furthermore, after World War I, any Native who had fought with honorable discharge was also considered a citizen through the Act of November 6, 1919.
As Native Vote states, "The underlying assumption of this act was that
these particular Indians had demonstrated that they had become part of
the larger Anglo culture and were no longer wholly Indian".
By the early 1920s, Congress was considering a bill to make the
remainder of Native Americans citizens in their aim to have them "adopt
Anglo culture". This finally was stated with the Indian Citizenship Act
which was created on June 2, 1924. This act showed progress in that
Natives would not have to give up being a Native to be a citizen of the
United States. This included being an enrolled member of a tribe, living
on a federally recognized reservation, or practicing his or her
culture. However, this did not create the right to vote automatically.
There remained instances in many states that still prevented
Natives from voting, even though they were citizens of the United
States. For example, the attorney general of Colorado in 1936 declared that Natives could not vote because they were not citizens of the state. Similarly, states found ways around voting in other ways. Because the Fifteenth Amendment
1870 barred states from limiting voting on account of race, states
found other ways – residency: claiming that Native Americans were not
residents of the state if they resided on reservations,
self-termination: one must first abandon their tribal ties in order to
vote, taxation: Natives who do not need to pay taxes cannot vote,
guardianship: the claim that Native Americans were incompetent and
"wards of the state", and on the lack of ability to read English.
With World War II
and the need for more soldiers through the draft, Congress reaffirmed
Native people's citizenship with the Nationality Act of 1940.
However, when some 25,000 veterans returned home after the war, they
realized that even though they had put their lives on the line for their
country, they were still not allowed to vote.
In 1965 the Voting Rights Act
(VRA) put an end to individual states' claims on whether or not Natives
were allowed to vote through a federal law. Section 2 of the VRA states
that, "No voting qualification or prerequisite to voting, or standard,
practice, or procedure, shall be imposed or applied by any State or
political subdivision to deny or abridge the right of any citizen of the
United States to vote on account of race or color". Further sections describe the measures taken if violations to this act are discovered.
However, efforts by states and municipalities to disenfranchise
Native Americans are ongoing, such that there have been about 74 cases
brought by or on behalf of Natives under the VRA or the Fourteenth or Fifteenth Amendment since 1965.
These in the most part have proved to be successful to upholding the
rights of Native Americans as citizens of the United States. Most of
these cases are centered on states that have large reservations, or
Native populations, such as New Mexico, Arizona and Oklahoma.
Land rights
One of the major issues surrounding land ownership rights of the
Native American Nations is the purposes for which they are and are not
allowed to use their land.
A typical example of the struggle faced involved the Seneca Nation of New York State. On April 18, 2007, the Seneca Nation laid claim to a stretch of Interstate 90 that crosses the Cattaraugus Reservation by revoking the 1954 agreement that granted the Interstate Highway System and New York State Thruway Authority permission to build the highway through the territory. The move was a direct shot at New York Governor Eliot Spitzer's attempts to collect taxes on Seneca territory.
The Senecas had previously made the same claim in a lawsuit which they
lost because of the state's assertion of sovereign immunity.
In Magistrate Heckman's Report and Recommendation it was noted that the
State of New York asserted its immunity from suit against both counts
of the complaint (one count was the challenge regarding the state's
acquisition of Grand Island and other smaller islands in the Niagara River
and another count challenging the thruway easement). The United States
was permitted to intervene on behalf of the Seneca Nation and the Tonawanda Band of Seneca Indians.
The United States was then directed to file an amended complaint that
"clearly states the relief sought by the United States in this action".
In this amended complaint the United States did not seek any relief on
behalf of the Seneca Nation relative to the thruway easement. By not
seeking such relief in its amended complaint the United States of
America permitted the action relative to the thruway easement to be
subject to dismissal based on New York's immunity from suit under the Eleventh Amendment to the United States Constitution. On May 4, the Seneca Nation threatened to do the same with Interstate 86.
