[p. 1]

Before the

Constitutional Rights Subcommittee

Senate Judiciary Committee

357 Old Senate Office Building

Washington, D.C.

September 1, 1961

Statement of Mrs. Helen L. Peterson, enrolled member, Oglala Sioux Tribe, Pine Ridge Reservation, South Dakota; Executive Director, National Congress of American Indians, 219 Dupont Circle Building, Washington, D.C.

We have understood that a primary purpose of this investigation into constitutional rights for American Indians was to see how Indian citizens were faring in those areas where the federal jurisdiction has been specifically transferred, by act of Congress, to five particular states, namely, Nebraska, California, Minnesota, Wisconsin, and Oregon (with Warm Springs excepted in Oregon). We were pleased at this prospect since our organization has opposed such transfer of jurisdiction unless it had the consent of the tribe affected, and an important reason for this opposition on the part of our Indian constituency has been fear of what the states would do, or fail to do. In turn, this fear is based on experience with what some state or local law enforcement has done, or failed to do.

First, I should like to urge this Committee to give careful consideration to the position of the National Congress of American Indians in respect to Public Law 280, 83^rd Cong., which brought about the specific transfers mentioned above. NCAI, by resolution of annual convention, has recommended amendment of Public Law 280 in such a way as to require agreement by the particular state as well as by the particular tribes affected before jurisdiction may be transferred from the federal to the state government. Furthermore, the NCAI-endorsed legislation would permit picemeal [sic] transfer of jurisdiction, provided, of course, it is agreed to by the tribe and state concerned. Our bill would go further, however, and permit the undoing of specific transfers, again provided that the tribe and the state agree this should be done.

May I explain the last statement: When Congress, under PL 280, transferred jurisdiction to Nebraska that state was obviously unable or unwilling to accept its new responsibility. The Omaha and Winnebago tribes were without law enforcement for almost eight years. Recently, we are informed, those Indian citizens and their non-Indian neighbors, with professional help, including research, from the University of Nebraska have finally gotten the state to assume this responsibility. The denial to these people of protection of the law for some eight years, the energies expended to get for themselves what other citizens take for granted, the time, travel and other resources spent on this that should have gone into more constructive development programs are shameful to contemplate, particularly in view of the fact that the lands of the Omaha and Winnebagos have been taxed all along, that these two small tribes constitute a very small fraction of the state’s total population and it can hardly be claimed that this is a case where the state can’t afford to furnish the protection of the law.

We ask that our organization’s resolution on the amendment of PL 280 and a copy of the proposed legislation be inserted for the record (attached).

[p. 2]

Mr. Chairman, the reason for going into this in some detail is that, as these hearings opened and unfolded, it seemed that the emphasis developed on the notion that in some way Indian tribal councils are frustrating their members through denying such members their constitutional rights as citizens of the U.S. and of the states wherein they reside. We would like to go back to what has happened to Indians at the hands of the states. We have pointed to one example in Nebraska—may I mention another? In 1956, a Sioux World War II veteran by the name of Vincent Broken Rope was shot in the back and later died from the wounds over a minor incident in Gordon, Nebraska, a town bordering the Pine Ridge Indian Reservation in South Dakota. A coroner’s jury made a perfunctory examination and ruled that the town marshal was doing his duty but the general understanding was that this was a wholly unwarranted shooting. (The marshal was later shown to be an unstable person.) Within the same year, two white boys picked up a fifteen-year-old Indian girl and her brother on the highway; attacked the girl and when she fell or was pushed from the car, was killed on the highway. The boy responsible for that got three months in jail. In about 1956, there was a case of an Indian shot in the Platte Valley of Nebraska; only when courageous citizens in the valley persisted for months in the face of entrenched authorities did justice finally prevail. Then there was the instances when Sgt. Rice, in about 1950, and a Mr. Nash early this year, were refused burial in white men’s cemeteries because they were Indians. Again, these occurred where white men, not Indian tribal councils, were responsible for justice and order in society. In Idaho a decade ago, some Indian boys were sentenced fourteen years for stealing sheep.

While these may not fit the classification of denials of civil rights exactly, they do indicate something of the attitudes of prejudice, and the quality of law enforcement in regard to Indians that exist under the white man’s law enforcement and court systems where there is no connection whatsoever with any Indian tribal council or tribal court.

During the summer, I have seen a telegram sent by a California U.S. attorney asking a University Professor where to get legal help for Indian citizens in Bishop, California.

Your own Committee has reported that some states are unwilling to admit Indians who are mentally ill, contending they are the special and even total responsibility of the federal government, yet at the same time patients are being discharged from St. Elizabeth’s federal hospital. And it is a well known fact—though our organization doesn’t have staff or resources to document the cases—that North Dakota and other states sometimes patently deny Indians equal access to state institutions.

The argument that Indian citizens do not now have the protection of law enforcement on their own reservations, and at the hands of their own tribal governments, but would do better at the hands of the states is simply not borne out by what we think we know.

Whatever faults the tribal systems and the federal government may have, the complaints are far more in terms of inadequacy of law enforcement than denial of constitutional rights, and there is no evidence that the states would do as well, at least at this stage in history where most Indians will agree that there is prejudice and discrimination in the communities bordering their reservation homelands.

[p. 3]

This leads to the second recommendation that Indian tribes and our organization have made in the past and we now make to this committee: that larger appropriations to provide more and better law enforcement be placed in the hands of the federal law enforcement officials and the tribal law enforcement agencies. We think the Bureau of Indian Affairs has been wrong in recent years in insisting to an extreme degree that such a large part of this burden be borne by the tribes themselves out of their own resources. Many of their resources are extremely limited, and their efforts to develop revenue are met with many frustrations. Great improvement in the quality and quantity of law enforcement can be brought about overnight with this obvious and direct kind of action, and your Committee recommendations would be of great value toward this end. (See NCAI resolutions calling for more appropriations.)

As Congressman Arnold Olson and Commissioner-Designate Nash have testified in this hearing, an essential element in improving law enforcement is communication with, and the confidence of the Indian people themselves.

While we are painfully aware of our lack of resources for research and documentation, we do feel that our organization—being the only one on the national level of the Indians, by the Indians, for the Indians—can help your Committee to gain more understanding of the strengths and advantages of the tribal law enforcement agencies and court systems. Having watched the obvious goodwill and concern of this committee for the Indian people and the subjects under consideration in these hearings, we know that you gentlemen of the Committee could not but help be moved by many of the decisions of the Indian tribal judges and policemen. While their procedures or records may not be in the same form as those of the white man, nevertheless their deep concern for justice, for compassion, for determining the kind of punishment that will come closest to helping a man restore his dignity as a person, the appealing concern for the family of the defendant, the care that is taken to inform the defendant of the provisions of the tribal code in a way that the defendant truly understands (and where this involves explanations in an Indian language, with 150 different languages still spoken by the Indians today this is something the white man’s court could hardly provide)—these are truly attempts at justice that this Committee will want to know about. They are among the positive things to be said for these Indian systems that, transitional or not, cannot but commend themselves to enlightened white men who search for better answers to the problems of what to do with offenders against society.

Mr. Chairman, is it not so that good citizens in the District of Columbia are shocked and fearful over the muggings, the yokings, the purse snatchings, the other crimes in the National Capital—some of which go unapprehended and unpunished? Yet is it not also true that here in our Capital there are those who drag their feet on appropriations that will come closer to meeting the needs of law enforcement? Well, so is it with Indian communities. We submit that there is not nearly so much denial by Indian systems of law of constitutional rights to Indian citizens as there is inadequacy of resources for law enforcement, for the training of Indian officials and judges, and for adult education of the general Indian community population as will bring about concern for, and observance of the constitutional rights of Indians. Our organization has already demonstrated its grave concern for more and better law enforcement, for seeking the means to bring this about, for carrying on adult education programs within the tribal councils and among the Indian citizenry at large to bring about the community acceptance and demand for good law and order practices and compliance that are essential in any community for good results. Please notice the essays written by school children on the Pine Ridge Reservation on the subject “Laws are Made to Protect Man.” This was part of just one program we have carried on, for which we have had to solicit the funds in order that we might work in this area.

[p. 4]

The National Congress of American Indians stands ready at all times to step up its efforts to encourage and assist the tribal councils, the tribal law enforcement agencies and courts, the Bureau of Indian Affairs, the Congress of the United States, the state and county governments who truly wish to cooperate, and all others who will work sincerely with the Indian people to bring about improvements in this area. We are limited only by resources with which to work.

I would like the record to show that while the United States has despoiled tribes of their tribal lands, has violated treaties and agreements, and has put itself in the position of taking after taking of tribal property without just compensation in defiance of the Fifth Amendment, no single instance has been mentioned where a tribe has taken the property of a member without due process of law. Hundreds of claims of tribes against the United States have resulted over the years; they are now being processed by the Indian Claims Commission after the conscience of this country was appealed to because of the helplessness of tribes, as political entities, to gain access to the courts, as a result of which the Indian Claims Commission Act was adopted. But there is no similar backlog of demands against Indian tribes; tribal governments have been conservative in the extreme of tribal and individual property.

In only one instance whatever is there any demonstration of need for the United States to act. That is asserted in connection with freedom of worship—literally, the right of a group called the Native American Church to use the cactus button, peyote, in their religious celebrations. Now neither the National Congress of American Indians nor I wish to be understood as taking any position respecting peyotists; the organization has not acted upon any statement in this regard. There have been many bills in Congress and state legislatures to ban the use of peyote and much testimony on one side and the other as to whether it should be classed with habit-forming drugs. Some Indian tribes have banned it. The contention seems to be that they have erred, though Congress would not be deemed to be in error if they chose to do the same thing. I would urge only that this matter be seen in perspective: The Indian tribes, before the white man came, governed themselves according to their own lights so as to satisfy their own cultural needs. Some measure of that aboriginal jurisdiction, that status of separateness and self determination, remains to the tribes to this day. The question is not whether freedom of religion is satisfying as a concept to the white man; whether it meets the needs of his society. The question is whether our country is bold enough to permit the survival of governments which do not necessarily conform to the white man’s concept of what is an ultimate good. Otherwise, the tribes could be stripped of the last vestige of their original total rights of self-determination—just to make them over in the image of the white man.

Lest another seemingly unrelated area not be brought to the attention of your Committee, let us say that we hope you good gentlemen do not fail to consider the Indians’ property considerations in all of these matters. The land, the oil, the water and water rights, the timber belonging to individual Indians (even in trust) and to the tribes has often been a reason for concern about the Indians in a covetous sort of way. Throughout history it is clear that following gold or oil or uranium discoveries, or as markets open up for more timber, or as water becomes scarcer, the movements to civilize, or integrate the Indians, or concern for their individual freedom and “right” to dispose of their property without interference or protection often result in programs or policies that lead to removal of his resources from his ownership. We trust that this good Committee will not open more doors to easier exploitation of the remaining fragments of the Indians’ land and resources in their sincere attempts to protect the rights of these very people.

[p. 5]

Gentlemen of this Committee, by your willingness to understand, by your deep and patient study, and then by your wise recommendations and follow-up, you can help greatly to straighten the American people out on their vast ignorance about the nation’s oldest inhabitants, actually the first Americans. You have an opportunity to help the poorest, least educated, least healthy group in the national society, for their problems of constitutional rights are all intertwined with their social and economic problems, and their cultural differences which could lend much to our increasingly materialistic national society. The Indian tribes have neither the financial resources nor the political strength to do very much about their problems, yet they nag at the conscience of thoughtful Americans. Most Americans simply do not understand and they don’t know what to do to help. Now, in 1961, the whole world watches the United States of America and it may soon look much more closely to its relations with its native peoples. These relations may very well be of vital importance in winning the confidence of emerging native peoples and other nations all over the world. Together, let us all insist upon the means to find truly better answers to their problems, and may be have guidance that we do not innocently blunder into further destroying their unique qualities and communities that lend refreshing variety and richness to our national society.