Native American policy

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Federal Native American policy is considered by many to be an aberration in the U.S. legal system. By the 1990s more than two percent of U.S. lands were actually governed by Native American tribal governments. In the seventeenth century British and Spanish colonies began negotiating treaties with the New World's indigenous groups as sovereign (independent) political entities. The treaties served to acknowledge and affirm Native American ownership of lands used and occupied. The United States, as a successor of Great Britain, inherited this centuriesold European international policy. Thus, tribal sovereignty, recognized well before birth of the United States, became the basis for future U.S.Native American relations.

With victory complete over Britain in the American Revolution (17751783), establishment of Native American policy was one of the first orders of business of the new fledgling government. A formative period of U.S. Indian policy lasted until 1871. The 1787 Northwest Ordinance, enacted by Congress, recognized existing Indian possession of the newly gained lands and established that only the federal government could negotiate treaties with tribes and acquire Indian lands. Sovereignty of tribes was explicitly recognized in the U.S. Constitution and authority for the federal government's legal relationship with tribes was identified in the Commerce Clause. One of the first acts passed by the first U.S. Congress was the Indian Trade and Intercourse Act of 1790 which reaffirmed the treaty policy and brought all interactions between Indians and non-Indians under federal control.

Three Supreme Court decisions between 1823 and 1832, known as the Marshall Trilogy, reasserted the tribal right of land possession and tribal sovereignty (meaning no state held legal jurisdiction within Indian reservation boundaries) and defined a moral trust responsibility of the United States toward the tribes. This trust relationship recognized tribes as "domestic dependent nations" yet held the Unites States responsible for their health and welfare. Later deliberation of Indian policy by the Court produced a reserved rights doctrine which recognized inherent tribal rights, but the Court also allocated "plenary" power to the United States. Plenary power meant that the United States held ultimate authority to unilaterally alter U.S.Native American policy and terminate specific Indian rights. However, the trust relationship compelled a reasoned exercise of this power, to be used only to benefit Indian peoples. For resolving disputes over treaty interpretation, the "canons of construction" established that treaties should only be interpreted from the tribal perspective and, if ambiguous, judicial rulings should be in favor of the tribes.

Despite a seemingly favorable attitude on the part of the judiciary, in actuality Indian peoples suffered catastrophic loss of economies, lands, and life in the persistent push of white settlements westward. The most grievous example was the 1830s removal policy under which the Five Civilized Tribes were forcibly removed from the Southeast to the newly created Indian Territory in what later became Oklahoma. The removal policy persisted with treaty-making in the West in the 1850s and 1860s. The western treaties created a reservation system in which the inherent rights of Native Americans would presumably persist. However, these treaties underscored the long standing tension between trust, responsibility, and a stronger force promoting white settlement and economic development. Some treaties also recognized aboriginal hunting, fishing, and gathering rights outside reservation boundaries to help perpetuate traditional economies. The treaties also implicitly established a unique system of water rights later recognized by federal courts. In 1871 Congress acted to end the treaty-making era, thus closing a chapter on the use of treaties to define U.S.-Indian relations.

An era of forced cultural assimilation followed from 1871 to 1930 in which U.S. Indian policy attempted to blend Native Americans into the dominant society. Believing the tradition of communally held property was a major barrier to Indian assimilation, Congress passed the General Allotment Act of 1887. The act authorized the Bureau of Indian Affairs (BIA) to divide up all Indian lands, allotting parcels of 160 acres to families and 80 acres to single individuals over 18 years of age. Individuals receiving the allotments became U.S. citizens. The hope was that when Indian people held their own property they would become farmers embracing an agrarian lifestyle. Tribal lands left over after the allotment process were considered "surplus" and sold to non-Indians. Much land went into forfeiture when many Indians could not pay taxes on their properties. In all, the policy was a further economic disaster reducing the tribal land base in the United States from 138 million acres in 1887 to 48 million acres in 1934. Much of the most agriculturally productive lands passed out of tribal control. In another assimilationist effort, all Indians became U.S. citizens through the Indian Citizenship Act of 1924, but the Bill of Rights did not apply to Indians because of tribal sovereignty.

By the 1930s, realizing the calamity of the allotment policy, U.S. policy swung back again to the recognition of sovereignty. The Indian Reorganization Act of 1934 ended the allotment process, stabilized tribal holdings, and promoted tribal selfgovernment by encouraging tribes to adopt Western-style constitutions and form federally chartered corporations. Though many tribes rejected developing constitutions, they did organize various governmental institutions during this period.

By 1953 U.S. policy began a significant move back to assimilation with termination policies. Through a House resolution, Congress voted to terminate recognition of a select group of tribes, ending the special trust relationship. Some reservations were terminated and the lands sold to non-Indians, thus taking away the economic base for the Indian communities. In addition, Public Law 280, also passed in 1953, expanded state jurisdiction onto tribal lands in selected states, diminishing tribal sovereignty in those areas.

With little sustained congressional support for termination policies, in the 1970s U.S. policy again took a dramatic shift back to a tribal government, self-determination era. The Indian Civil Rights Act of 1968 extended most of the Bill of Rights to Indian peoples and pared back some of the states' authorities granted in P.L. 280. Most importantly, the Indian Self-Determination and Education Assistance Act of 1975 encouraged tribes to assume administrative responsibility for federal programs benefiting Indian peoples, many of which were in health and education. Congress continued to pass acts empowering tribes including the American Indian Religious Freedom Act (1978), Indian Mineral Development Act (1982), Indian Gaming Regulatory Act (1988), and Native American Graves Protection and Repatriation Act (1990). Tribes could form their own governments, determine tribal membership, regulate individual property, manage natural resources, develop gaming businesses, collect taxes, maintain law enforcement, and regulate commerce on tribal lands.

Tracing the history of U.S.Indian relations reveals that Native American policy is not actually a coherent body of principles, but an aggregate of policies derived from many sources over time. For more than 200 years, U.S.-Indian policy vacillated between periods of supporting tribal self-government and economic self-sufficiency and periods of forced Indian socio-economic assimilation into the dominant Western culture.

See also: Five Civilized Tribes, Trail of Tears


Burton, Lloyd. American Indian Water Rights and the Limits of Law. Lawrence: University of Kansas, 1991.

Cohen, Felix S. Felix S. Cohen's Handbook of Federal Indian Law. Albuquerque: University of New Mexico Press, 1971.

Prucha, Francis P. The Great Father: The United States Government and the American Indians. Lincoln: University of Nebraska Press, 1986.

. American Indian Treaties: The History of a Political Anomaly. Berkeley and Los Angeles: University of California Press, 1994.

Washburn, Wilcomb E., ed. Handbook of North American Indians: History of IndianWhite Relations, Vol. 4, Washington, DC: Smithsonian Institution Press, 1988.

Wilkinson, Charles F. American Indians, Time, and the Law: Native Societies in a Modern Constitutional Democracy. New Haven: Yale University Press, 1987.

the federal-indian relationship is like no other in the world. indian tribes appear to have the same political status as independent states; yet they seem to be forever mired in a state of political and economic pupilage.

vine deloria, jr., american indian policy in the twentieth century, 1985

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Indian Policy


Removal. In the early 1830s there were still 125, 000 Native Americans living east of the Mississippi River. The United States had two conflicting policies toward this population: assimilation and removal. Assimilation encouraged Native Americans to conform to European- American ways to survive. The federal government even funded missionaries to Christianize and educate native people. The Cherokees, who occupied land in the Southeast, had successfully assimilated by the 1830s. They had created written alphabet, ratified a republican constitution with a bicameral legislature, learned to farm, and built one of the better public school systems in the South. But the governments second policy, removal, dismissed the possibility of assimilating Native Americans. It sought to make Indians leave whatever land they had in the East and relocate west of the Mississippi River. Some proponents of removal believed that separation was the only way to protect Indians from white abuse; others were simply interested in opening more land to. white settlement. Andrew Jackson initially supported both policies, promising small plots to individuals who took up farming and granting land in the West to those tribes who relocated. However, Jackson increasingly came to favor removal as a just, humane, liberal policy toward Indians. In 1830 Congress passed the Indian Removal Act and appropriated $500, 000 to remove Indians to the West. Jacksons administration negotiated ninety-four removal treaties, and all the Indians in the East were removed by 1840.


The experience of the Cherokee Indians in the 1820s and 1830s demonstrated that assimilation and civilization were no guarantees against white encroachment or forced removal from their lands. In the late eighteenth century the Cherokees, one of the so-called Five Civilized Tribes, relocated to seventy-two hundred square miles of land primarily in northwestern Georgia. The land was guaranteed them by federal treaties. By the 1820s the Cherokees had given up an existence based on seminomadic hunting and gathering, and had settled into a pattern of European American-style agriculture. The fifteen thousand and Cherokees occupying the area had come to, think of themselves is an. independent nation; In 1827 they ratified a republican constitution with an elected representative government, a bicameral legislature, a court system, and a governmental bureaucracy. One of them, Sequoyah, created an eighty-six-letter phonetic alphabet, which they used to translate the Bible and to issue a bilingual newspaper. They also opened a public school system that was among the best in the South. Like their white neighbors, they raised cash crops, especially cotton, and by 1833 they owned fifteen hundred black slaves. None of this mattered to white Georgians who coveted Cherokee land for themselves. When gold was found within the Cherokee boundaries; Georgia intensified its efforts to get them removed. Eventually the Cherokees sued in federal court to halt the flood of white settlement on their land They won two cases, Cherokee Nation v. Georgia (1831) and Worcester v. Giorgia (1832). In both cases the Supreme Court under Chief Justice John Marshall held that they were entitled to the land. But Marshall had no power to enforce the decisions, and by 1838 federal troops had evicted the Cherokees and sent them on, .a Trail of Tears toward new land in present-day Oklahoma.

Source: Anthony F.C. Wallace, The Long Bitter Trail: Andrew Jackson and the Indians (New York: Hill & Wang, 1993).

Resistance. Native Americans generally accepted removal as preferable to assimilation. However, there was some resistance. In 1832 Sauk and Fox Indians under Black Hawk took up arms in Illinois and Wisconsin and tried to reoccupy land they had surrendered the previous year: Illinois militia and federal troops vigorously put down Black Hawks people, chasing them into the Wisconsin Territory and massacring nearly five Thundred men, women, and children who tried to escape across the Mississippi River (which was where they were supposed to go, according to treaty). The Black Hawk War became more famous in later years because both Jefferson Davis and Abraham Lincoln had participated in this campaign to evict the Native Americans. Many Seminole Indians in Florida also refused to resettle and put up an even more spirited resistance. From 1835 to 1842, under Osceola, they fought a successful guerrilla war that cost the United States $20 million and fifteen hundred casualties. Eventually, federal troops captured Osceola (tricking him into capture under a flag of truce), but they proved unable to inflict a final defeat. In 1842 the federal government ended the hostilities, but it was hardly a victory for the native survivors, who consisted of only a few hundred Seminoles hiding in Floridas swamps.

Trail of Tears. Americans in the Southeast were happy with the removal policy, though some thought it was proceeding too slowly. Georgians especially coveted Cherokee land in the northwest corner of their state and refused to abide by federal treaties guaranteeing the natives their land. The situation was exacerbated by the discovery of gold on Indian lands in 1829. The Cherokees sued to protect themselves from white encroachment, and the Supreme Court eventually heard two cases. In Cherokee Nation v. Georgia (1831) and Worcester v. Georgia (1832) the Court held that the Cherokees, though not an independent nation, did have legal rights to their land. The Court, however, had no power to enforce its decision. Instead, Presidents Jackson and Martin Van Buren used federal troops to remove the Cherokees. Forced to cede their land in exchange for territory in Oklahoma, four thousand Cherokees died on the march to their new home. The Cherokees thus repeated the experience of those who had gone before them: in 1831 the Choctaws moved west with a promise of assistance that never materialized, and the Creeks lost thirty-five hundred people in 1836. Even the new lands of the West did not provide safety, as America continued to expand. Removal would give way, in 1851, to a new policy of concentration on reservations.


John R. Finger, The Eastern Band of Cherokees, 18191900 (Knoxville: University of Tennessee Press, 1984);

Michael D. Green, The Politics of Indian Removal: Creek Government and Society in Crisis (Lincoln: University of Nebraska Press, 1982);

Richard Slotkin, Regeneration Through Violence: The Mythology of the American Frontier, 16001860 (Middletown, Conn.: Wesleyan University Press, 1973).

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Indian Policy


Ending Native American Sovereignty. Before the Civil War the federal government had typically negotiated treaties with various tribes, as though they were foreign nations, but in its General Appropriations Act of 1871 the House of Representatives specified: hereafter

no Indian tribe or nation within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power, with whom the United States may contract by treaty. The act facilitated a paternalistic approach to Native Americans designed to force them to give up their nomadic ways and to settle on isolated reservations, where they were expected to learn farming and take up civilized ways of life. The Bureau of Indian Affairs, one of the largest divisions of the huge Interior Department, also established special boarding schools that removed young Native Americans from their tribes, preventing them from learning their own religions and traditions while teaching them the ways of white society.

Federal Paternalism. Despite these assimilationist measures Native Americans were not treated as fullfledged citizens of the United States. In Elk v. Wilkins (1884) the Supreme Court ruled that the Fourteenth Amendment (1868), which specifies that any person born or naturalized in the United States is a citizen, did not apply to Native Americans. They ruled that an Indian who left the reservation was not eligible to vote because he had not been naturalized, but since reservations were within the territory of the United States, Native Americans were not eligible for naturalization procedures. Thus, the only way they could become citizens was through congressional acts extending citizenship to individual persons or tribes. (All Native Americans were finally granted full citizenship in 1924.) The ruling perpetuated the definition of Native Americans as wards of the federal government who were incapable of handling their own affairs.

The Land Squeeze. After the Civil War and the completion of the first transnational railroad link in 1869, railroads brought more settlers to the mountain states and the Great Plains. As available western lands were occupied by white ranchers, homesteaders, and miners, new federal policies forced Native Americans from lands that were theirs by tradition or treaty and onto reservations., There they often starved and faced mistreatment and even death at the hands of government troops as well as white settlers. During the 1870s several Indian groups resisted relocation to reservations and the white takeover of lands. While a final bloody massacre occurred at Wounded Knee Creek in South Dakota in 1890, by 1878 the so-called Indian wars were largely over. (See Lifestyles and Social Trends.)

The Dawes Act. In 1887 Congress passed the Dawes Severalty Act, ostensibly to fit the Indian for civilization and absorb him into it by dividing the lands on each reservation, which were held in common by a tribe, into homesteads for individuals or nuclear families. The act also stipulated that any surplus land could be sold to whites. Over the next decade enactment of the Dawes Act not only stripped western tribes of large portions of their lands but also decimated the internal structures of tribes. With only small allocations of land many could not support themselves. Within twenty years two-thirds of Indian land had been sold to whites, and much tribal culture and tradition was lost.


Daniel Boorstin, The Americans: The Democratic Experience (NewYork: Random House, 1973);

Frederick E. Hoxie, A Final Promise: The Campaign to Assimilate the Indians, 1880-1920 (Lincoln: University of Nebraska Press, 1984);

Patricia Nelson Limerick, The Legacy of Conquest: The Unbroken Past of the American West (New York: Norton, 1987).