Native American Language Extinction: A Violation of Fundamental Civil & Indigenous Rights
The endangerment and extinction of Native American languages is undoubtedly a threat to the stability of individual tribes and nations within this country. Despite their vast cultural and linguistic diversity, roughly 160 remaining indigenous languages face ubiquitous and systemic endangerment.[1] The United States government’s official policy—outlined primarily in the Native American Languages Acts of 1990 and 1992—purportedly aims to preserve and protect Native American languages. Despite this stance, however, the government lacks clarity and accountability on how it addresses language extinction, a phenomenon that poses potential violations of The Declaration of the Rights of Indigenous People and constitutional rights.
In 1919, the Supreme Court sought to address in Meyer v. Nebraska whether or not the Siman Act, which made illegal the instruction of any language other than English to students below the eighth grade, violated the Due Process Clause of the Fourteenth Amendment. During World War I, the state of Nebraska passed the Siman Act as a means of inhibiting the instruction of German in both public and private schools. However, after the state court ruled that the act could not prevent the instruction of non-English languages outside the hours of school, restrictionist policymakers nevertheless defied this ruling, and charged the petitioner, Robert Meyer, with violating the Siman Act for conducting an after-school Bible study in German. Meyer appealed to the Supreme Court, which ruled 7-2 that the Siman Act violated the Fourteenth Amendment guarantee that “no State deprive any person of life, liberty, or property, without due process of law[.]” In his majority opinion, Justice James McReynolds established the scope of “liberty” as enshrined in the Fourteenth Amendment when stating:
Without doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.[2]
Justice McReynolds clearly underscores that the right to teach, learn, and choose for one’s child to study a language other than English is a freedom implicitly protected by the Fourteenth Amendment. However, he takes his analysis one step further: Justice McReynolds utilizes Meyer, a case that dealt with specific and singular conditions, to make an expansive statement about the nature of “liberty.” As such, the Fourteenth Amendment no longer protects distinct activities, but rather, advances to encompass the values inherent within family, education, life, and happiness.
Binding the right to a non-English education with the right of a family to function autonomously, Justice McReynolds writes, “[Meyer’s] right thus to teach and the right of parents to engage him so to instruct their children, we think, are within the liberty of the amendment.”[3] It is for this reason that Meyer—along with the 1925 case Pierce v. Society of Sisters,[4] which upheld parents’ rights to choose not to send their children to public school—is often deemed one of the first, and sturdiest, instances of substantive due process. It is through the principle of substantive due process that the Constitution has come to enable courts to protect certain fundamental rights of individuals from governmental infringement—distinct from procedural due process. Laurence Tribe, professor of constitutional law at Harvard Law School, writing in 2004 for the Harvard Law Review, remarks that Meyer, “described the protected liberties at higher levels of generality than any ‘protected activities’ catalog could plausibly accommodate, and typically did so in temporally extended, relationship-focused terms rather than in strictly solitary, atomistic terms.”[5] Thus, not only is the right to minority language education clearly-delineated when viewed through the lens of substantive due process, but it is intrinsic within the court’s history of protecting specific fundamental rights. Despite this, specific legislation aimed at language preservation exist in problematic and varying shades of clarity.
It follows naturally from the precedent set in Meyers that government support for the educational rights of indigenous American communities is necessary And, indeed, the United States government has, on occasion, endeavored to address the issues of Native American language endangerment. The government’s largest push toward language preservation came in the form of the Native American Languages Act of 1990. This along with the Native American Languages Act of 1992, chiefly, articulates the stance of the US government: “to preserve, protect, and promote the rights and freedom of Native Americans to use, practice, and develop Native American languages.”[6] These Acts designated Native American tribes as eligible for government funding in order to pursue language education and preservation. However, President George H.W. Bush at the time failed to meet stipulations regarding the review of federal agencies’ interactions with Native American tribes and drafting a report to Congress on potential improvements. Moreover, the relegation of funds has often stalled, if not completely halted altogether.
This tension between improvement and resistance is exacerbated by conflicting views within the international community, regarding indigenous language rights. In 2007, the United Nations General Assembly voted to adopt the Declaration on the Rights of Indigenous Peoples. The Declaration details that “[i]ndigenous peoples have the right to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures, and to designate and retain their own names for communities, places and persons.”[7] The United States was one of four nations to vote against adopting the Declaration, with representatives of both the Bush and Obama administrations actively voicing their disapproval, citing the vagueness of terms, amongst other complaints. This inaction and counteraction on the part of the United States government is representative of a greater historical pattern. The United States government has repeatedly targeted the use of Native American languages as a means of subjugation—perhaps most notably in the decades-long use of boarding schools as a means of systematically extinguishing Native American cultures while assimilating them to that which was deemed normative. These efforts were institutionalized through a myriad of pieces of legislation and official policies adopted by the US government. Specifically, the Civilization Fund Act of 1819 sought to ‘civilize’ Native American communities through the allocation of funds to schools and religious groups. From here, the Kansas Act of 1940, which gave the state of Kansas jurisdiction over offenses committed by Native Americans and which was emulated by multiple states, shifted a responsibility that had long been held by the federal government via the Constitution’s Indian Commerce Clause toward the state level. This set the precedent for “Indian termination policy” as a whole, which governed much of the 20th century and aimed to assimilate Native American communities.
It is for this reason that the extinction of indigenous languages has, on occasion, been deemed a violation of the very rights that minority language education had initially helped to clarify within American jurisprudence. A line can clearly be drawn from the precedent set forth in Meyer v. Nebraska, wherein substantive due process granted communities not only language rights, but demonstrated the importance of an enduring communal autonomy to indigenous language extinction. Whereas the Siman Act was deemed to have transgressed the fundamental rights of language minorities in Meyer, so too does the systematic infringement of this right along with the systemic, active extinction of a language altogether rooted in the desire for assimilation, constitute a violation of a fundamental liberty for Native American language minority communities. Certainly, if the right to language education and familial and communal autonomy is fundamental—as recognized on both a federal and international level—then the historic treatment of Native American languages as “uncivilized” and not worthy of preservation undoubtedly violates this right.
[1] Ken Hale and Michael Krauss, "On Endangered Languages and the Safeguarding of Diversity; The World's Languages in Crisis," Endangered Languages 68, no. 1 (March 1992): doi:10.2307/416368.
[2] Meyer v. Nebraska, 262 U.S. 390 (1923).
[3] Ibid.
[4] Pierce v. Society of Sisters, 268 U.S. 510 (1925).
[5] Laurence Tribe, "Lawrence V. Texas: The 'Fundamental Right' That Dare Not Speak Its Name," Harvard Law Review 117, no. 6 (April 2004): 1931, https://www.jstor.org/stable/pdf/4093306.pdf?refreqid=excelsior:d4ace2569d1c638e802d1dfe538210c3.
[6] Native American Languages Act, Pub. L. No. 101-477, 104 Stat. 1155 (Oct. 30, 1990).
[7] United Nations General Assembly, 61/295. United Nations Declaration on the Rights of Indigenous Peoples, report no. A/61/L.67, 7, September 17, 2007, https://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf.