Settlement of Aboriginal Claims and the Enhancement of Tribal Self-Determination

Aboriginal claims to land, and aboriginal hunting and fishing rights were extinguished by Congress through the passage of the �ֻ�ֱ�� Native Land Claims Settlement Act (ANCSA) in 1971. While land claims were settled through the establishment of Native corporations, subsistence hunting and fishing failed to be protected and continues to be a major area of on-going concern for �ֻ�ֱ�� Native people. Opportunities for tribal self-governance dramatically increased through the passage of the Indian Self-determination and Education Assistance Act (1975) and through the Indian Child Welfare Act (1978). However, the State of �ֻ�ֱ�� began challenging the existence of tribes in �ֻ�ֱ�� after the passage of ANCSA. The main concepts students are expected to learn from this Unit are:

The �ֻ�ֱ�� Native Claims Settlement Act (ANCSA) of 1971 extinguished aboriginal land and resource claims, and placed the land under the ownership of �ֻ�ֱ�� Native corporations with �ֻ�ֱ�� Native shareholders. While ANCSA is federal Indian law, the Native corporations ANCSA established are also subject to the terms of �ֻ�ֱ�� State corporation law. ANCSA has been viewed by many as an experiment that has seen both successes and failures. The Act has been amended by almost every Congress since its passage in attempts to address the shortfalls. While ANCSA was the largest land claims settlement in U.S. history, it failed to protect �ֻ�ֱ�� Native subsistence and left questions about the status of tribes and their jurisdiction.

Congress passed the Indian Self-Determination and Education Assistance Act (ISDEAA) in 1975 which allows tribes and tribal organizations to run their own programs and deliver the services created through the federal trust responsibility such as health, education, social services, justice, roads, and housing. The Act is also referred to as P.L. 638 and tribes may assume programs from the Indian Health Service and the Bureau of Indian Affairs through 638 contracts or compacts. Services provided under the ISDEAA bring in around one billion dollars annually to �ֻ�ֱ��.

The Indian Child Welfare Act (ICWA) was passed by Congress in 1978 to stop the separation of American Indian and �ֻ�ֱ�� Native children from their families and communities, by being adopted out into non-Native homes. ICWA applies to the activities of state courts when Native children in need of aid are in their custody. ICWA requires that the child’s tribe is notified and allowed to intervene in state cases. It also requires that preference be given to placing children in Native homes. It was the passage of ICWA that encouraged �ֻ�ֱ�� tribes to organize tribal courts in the 1980s to protect their own children, which in turn was challenged by the State of �ֻ�ֱ�� up until recent time.

Congress extinguished aboriginal hunting and fishing rights through the passage of the �ֻ�ֱ�� Native Claims Settlement Act in 1971, but the Act did not adequately protect subsistence the for �ֻ�ֱ�� Native people. Congress attempted to remedy this through the passage of Title VIII of the �ֻ�ֱ�� National Interest Lands Conservation Act in 1980. Title VIII gave a preference for subsistence hunting and fishing to rural residents of �ֻ�ֱ��, which was declared unconstitutional by the �ֻ�ֱ�� Court system. The result has been that the federal government manages subsistence on federal lands and waters, while the State manages it on State lands and waters. Subsistence for �ֻ�ֱ�� Native people remains not adequately protected as hunting and fishing resources dwindle, and competition for them increases.

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Tribal Governance

Settlement of Aboriginal Claims and the Enhancement of Tribal Self-Determination