Texas Indian Holocaust and Survival: Mcallen Grace Brethren Church V
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The Scholar: St. Mary's Law Review on Race and Social Justice Volume 21 Number 1 Article 2 6-2019 Texas Indian Holocaust and Survival: McAllen Grace Brethren Church v. Salazar Milo Colton St. Mary's University Follow this and additional works at: https://commons.stmarytx.edu/thescholar Part of the American Studies Commons, Animal Law Commons, Constitutional Law Commons, Criminal Law Commons, Criminal Procedure Commons, Criminology and Criminal Justice Commons, Cultural Heritage Law Commons, First Amendment Commons, Fourteenth Amendment Commons, History of Religion Commons, Holocaust and Genocide Studies Commons, Indian and Aboriginal Law Commons, Indigenous Studies Commons, Law and Race Commons, Law and Society Commons, Legal History Commons, Legal Remedies Commons, Other Religion Commons, Race and Ethnicity Commons, State and Local Government Law Commons, and the United States History Commons Recommended Citation Milo Colton, Texas Indian Holocaust and Survival: McAllen Grace Brethren Church v. Salazar, 21 THE SCHOLAR 51 (2019). Available at: https://commons.stmarytx.edu/thescholar/vol21/iss1/2 This Article is brought to you for free and open access by the St. Mary's Law Journals at Digital Commons at St. Mary's University. It has been accepted for inclusion in The Scholar: St. Mary's Law Review on Race and Social Justice by an authorized editor of Digital Commons at St. Mary's University. For more information, please contact [email protected]. Colton: Texas Indian Holocaust and Survival TEXAS INDIAN HOLOCAUST AND SURVIVAL: MCALLEN GRACE BRETHREN CHURCH V. SALAZAR MILO COLTON* ABSTRACT When the first Europeans entered the land that would one day be called Texas, they found a place that contained more Indian tribes than any other would-be American state at the time.1 At the turn of the twentieth century, the federal government documented that American Indians in Texas were nearly extinct, decreasing in number from 708 people in 18902 to 470 in 1900.3 A century later, the U.S. census recorded an explosion in the American Indian population living in Texas at 215,599 * Milo Colton received B.A., M.P.A., M.A., and Ph.D. degrees from the University of Colorado at Boulder and a J.D. degree from the University of Iowa. He is of Cherokee heritage and served as Chief Administrative Officer of the Winnebago Tribe of Nebraska. He also taught college classes at the Winnebago and Omaha Indian Reservations. He was an attorney with the Civil Rights Legal Defense and Educational Fund (CRLDEF). He is a former State Senator at the State of Iowa. He is currently an associate professor teaching in the Criminal Justice Department at St. Mary’s University in San Antonio, Texas. 1.JEAN LOUIS BERLANDIER, THE INDIANS OF TEXAS IN 1830, at 99 n.110, 100-02 (John C. Ewers ed., Patricia Reading Leclercq trans., Smithsonian Inst. Press 1969) (1834). 2.U.S. DEP’T OF THE INTERIOR, U.S. CENSUS OFFICE, REPORT ON INDIANS TAXED AND NOT TAXED IN THE UNITED STATES (EXCEPT ALASKA) AT THE ELEVENTH CENSUS: 1890, at 594 (1894) (reporting the population of self-supporting and taxed “civilized Indians” to be 704, with 4 “Indians in prison, not otherwise enumerated” as the first official count of American Indians) [hereinafter U.S. CENSUS OFFICE, REPORT ON INDIANS TAXED AND NOT TAXED: 1890]. 3. U.S. DEP’T OF THE INTERIOR, U.S. CENSUS OFFICE, CENSUS REPORTS VOL. I, TWELFTH CENSUS OF THE UNITED STATES, TAKEN IN THE YEAR 1900: POPULATION PT. I, at 483 (1901), ftp://ftp.census.gov/library/publications/decennial/1900/volume-1/volume-1-p10.pdf [hereinafter U.S. CENSUS OFFICE, TWELFTH CENSUS: 1900]. 51 Published by Digital Commons at St. Mary's University, 2019 1 The Scholar: St. Mary's Law Review on Race and Social Justice, Vol. 21 [2019], No. 1, Art. 2 52 THE SCHOLAR [Vol. 21:51 people.4 By 2010, that population jumped to 315,264 people.5 Part One of this Article chronicles the forces contributing to the demise, survival, and renaissance of the American Indian in Texas.6 Part Two focuses on a recent federal case, McAllen Grace Brethren Church v. Salazar.7 This case grew out of a 2006 incident involving the seizure of eagle feathers by a federal agent at a powwow in McAllen, Texas. It represents a high-water mark in the Texas Indians’ struggle to retain their identity, culture, and religious practices. The author served as counsel for the Indians for nearly eleven years of litigation before the feathers were returned and the Indians’ rights to celebrate their culture and to practice their American Indian religion were confirmed and validated by the United States District Court for the Southern District of Texas, McAllen Division and the United States Court of Appeals for the Fifth Circuit. 4.U.S. DEP’T OF COMMERCE, U.S. CENSUS BUREAU, PROFILES OF GENERAL DEMOGRAPHIC CHARACTERISTICS: 2000 CENSUS OF POPULATION AND HOUSING, TEXAS 1 (2001), https://www.census.gov/prod/cen2000/dp1/2kh48.pdf [https://perma.cc/A7F2-8R6J] [hereinafter U.S. CENSUS BUREAU, 2000 CENSUS OF POPULATION AND HOUSING, TEXAS]. 5.TINA NORRIS ET AL., U.S. CENSUS BUREAU, C2010BR-10, THE AMERICAN INDIAN AND ALASKA NATIVE POPULATION: 2010, at 7 (2012), https://www.census.gov/history/pdf/c2010br- 10.pdf [https://perma.cc/P5V5-24A2] [hereinafter U.S. CENSUS BUREAU, THE AMERICAN INDIAN AND ALASKA NATIVE POPULATION: 2010]. 6. The author is indebted to Professor Russell Thornton for his monumental classic, AMERICAN INDIAN HOLOCAUST AND SURVIVAL: A POPULATION HISTORY SINCE 1492 (1987). His work is the primary source for the material and discussion contained in Part One. Portions of this Article previously appeared in Milo Lone-Eagle Colton, Indian Policy in Texas, in WILLIAM EARL MAXWELL ET AL., TEXAS POLITICS TODAY 38-40 (2010). 7. McAllen Grace Brethren Church v. Salazar, 764 F.3d 465 (5th Cir. 2014). https://commons.stmarytx.edu/thescholar/vol21/iss1/2 2 Colton: Texas Indian Holocaust and Survival 2019] TEXAS INDIAN HOLOCAUST AND SURVIVAL 53 PART ONE ............................................................................................... 54 I. TEXAS INDIAN HOLOCAUST AND SURVIVAL (1528-2000) ............ 54 A. Disease, War, and Removal ................................................. 56 II. AMERICAN INDIAN RENAISSANCE IN TEXAS (2000-PRESENT) ...... 67 A. A New Methodology for Counting American Indians by the U.S. Census ............................................................... 69 B. A Changing Self-Image of Those with Indian Blood ........... 71 PART TWO: MCALLEN GRACE BRETHREN CHURCH V. SALAZAR ................. 83 I. AN AMERICAN HISTORY OF INHIBITING THE PRACTICE OF AMERICAN INDIAN RELIGION ....................................................... 83 II. SUMMARY OF THE CASE: A CIVIL ACTION .................................... 88 III. FACTUAL BACKGROUND ............................................................... 93 IV. THE CIVIL COMPLAINT ............................................................... 105 COUNTS ONE AND TWO: Violations of the Free Exercise Clause of the First Amendment and the Religious Freedom Restoration Act .......................................................................... 105 COUNT THREE: Violation of the Equal Protection Clause of the Fourteenth Amendment................................................... 119 COUNT FOUR: Improper Application of the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act ....... 130 COUNT FIVE: Violation of the Fourth Amendment ................... 130 COUNT SIX: Violation of the Fifth Amendment ........................ 130 COUNT SEVEN: Administrative Procedure Act .......................... 131 COUNT EIGHT: Violation of International Law .......................... 131 CONCLUSION ......................................................................................... 133 APPENDIX ............................................................................................. 135 TABLE ONE: EPIDEMICS AMONG TEXAS INDIANS (1528-1892) .. 135 TABLE TWO: AMERICAN INDIAN POPULATION GROWTH IN TEXAS (1890-2000) COMPARED TO ALL RACES ......................... 137 TABLE THREE: FIFTEEN LARGEST AMERICAN INDIAN TRIBES IN TEXAS, 2000 CENSUS ............................................................. 139 TABLE FOUR: ALL AMERICAN INDIAN AND ALASKA NATIVES IN TEXAS .................................................................................... 140 Published by Digital Commons at St. Mary's University, 2019 3 The Scholar: St. Mary's Law Review on Race and Social Justice, Vol. 21 [2019], No. 1, Art. 2 54 THE SCHOLAR [Vol. 21:51 PART ONE I. TEXAS INDIAN HOLOCAUST AND SURVIVAL (1528-2000) When Europeans first entered the vast territory that became the State of Texas in 1528,8 they happened upon a land with more Indian tribes than any other would-be American state at that time.9 These many Texas Indian tribes interacted among themselves and with other tribes spread across the southern United States.10 No one attempted a precise census of the tribes of Texas before the end of the nineteenth century,11 but the accounts of explorers, historians, and anthropologists of the era provide clues to help modern researchers estimate the native populations of Texas.12 For example, Henri Joutel, 8. See Herbert Davenport & Joseph K. Wells, The First Europeans in Texas, 1528-1536, 22 SW. HIST. Q. 111, 111 (1918) (dating the shipwreck of Spaniard Alvar Nuñez Cabeza de Vaca on the Texas coast to 1528). 9. See John C. Ewers, The Influence of Epidemics on the Indian Populations and Cultures of Texas, 18 PLAINS ANTHROPOLOGY 104, 104 (1973) (“Nowhere else