Federal Indian Policy

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Federal Indian policy establishes the relationship between the United States Government and the Indian Tribes within its borders. The Constitution gives the federal government primary responsibility for dealing with tribes. Wrone periodizes federal policy toward Indians in six phases: coexistence (1789-1828), removal and reservations (1829-86), assimilation (1887-1932), reorganization (1932-45), termination (1946-60), and self-determination (1961-85). He argues that the failure of the treaty system was because of the inability of an individualistic, democratic society to recognize group rights or the value of an organic, corporatist culture represented by the tribes.[1]

The Revolutionary generations[edit]

The American Revolutionary thinkers and leaders generally viewed the American Indians not as a single people, but as nations in their own right, and approached them accordingly. Their attitude towards the Indians could be described as one of respect, compassion, and admiration.

Benjamin Franklin, in his "Proposed Articles of Confederation" (presented on May 10, 1775) for the nation about to take birth, called for a "perpetual Alliance" with the Indians, especially with the Six Nations of the Iroquois Confederacy:

Article XI. A perpetual Alliance offensive and defensive, is to be entered into as soon as may be with the Six Nations; their Limits to be ascertained and secured to them; their Land not to be encroached on, nor any private or Colony Purchases made of them hereafter to be held good; nor any Contract for Lands to be made but between the Great Council of the Indians at Onondaga and the General Congress. The Boundaries and Lands of all the other Indians shall also be ascertained and secured to them in the same manner; and Persons appointed to reside among them in proper Districts, who shall take care to prevent Injustice in the Trade with them, and be enabled at our general Expense by occasional small Supplies, to relieve their personal Wants and Distresses. And all Purchases from them shall be by the Congress for the General Advantage and Benefit of the United Colonies.[2]

In his Notes on the State of Virginia (1785), Thomas Jefferson defended American Indian culture and marveled at how the tribes of Virginia "never submitted themselves to any laws, any coercive power, any shadow of government" due to their "moral sense of right and wrong". He would later write, "I believe the Indian then to be in body and mind equal to the whiteman."[3]

The Northwest Ordinance of 1787, which would, for years to come, serve broadly as a precedent for the manner in which the United States' territorial expansion would occur, appears to treat the Indians as individuals, rather than as tribes or collectives, by calling for the protection of their "property, rights, and liberty":

Article 3. Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged. The utmost good faith shall always be observed towards the Indians; their lands and property shall never be taken from them without their consent; and, in their property, rights, and liberty, they shall never be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity, shall from time to time be made for preventing wrongs being done to them, and for preserving peace and friendship with them. [4]

The U.S. Constitution of 1787 (Article I, Section 8) calls for regulating commerce with the Indian tribes, and makes their importance to Congress equal to that of the states and foreign governments.

In 1790, Congress passed the Indian Nonintercourse Act (renewed and amended in 1793, 1796, 1799, 1802, and 1834) to protect and codify the Indians’ land rights.

While addressing the Seneca nation in 1790, President George Washington publically pledged to uphold their “just rights” and described the pre-Constitutional defrauding of the Indians out of their land as “evil”.[5]

In March and April of 1792, Washington met with 50 tribal chiefs in Philadelphia – including the Iroquois – to discuss closer friendship between them and the United States.[6]

Later that same year, Washington stressed the need for building peace, trust, and commerce with America's Indian neighbors:

"I cannot dismiss the subject of Indian affairs without again recommending to your consideration the expediency of more adequate provision for giving energy to the laws throughout our interior frontier, and for restraining the commission of outrages upon the Indians; without which all pacific plans must prove nugatory. To enable, by competent rewards, the employment of qualified and trusty persons to reside among them, as agents, would also contribute to the preservation of peace and good neighbourhood. If, in addition to these expedients, an eligible plan could be devised for promoting civilization among the friendly tribes, and for carrying on trade with them, upon a scale equal to their wants, and under regulations calculated to protect them from imposition and extortion, its influence in cementing their interests with our’s [sic] could not but be considerable."[7]

In 1795, in his Seventh Message to Congress, Washington expressed that if the US government wanted peace with the Indians, then it must give peace to them, and that if the US wanted raids by Indians to stop, then raids by Whites must also stop.[8]

As President, Thomas Jefferson made sustained efforts to win the friendship and cooperation of many Native American nations. He repeatedly articulated his aspirations for a united nation of both Whites and Indians, such as the following from a letter to the Seneca spiritual leader Handsome Lake dated November 3, 1802:

"Go on then, brother, in the great reformation you have undertaken.... In all your enterprises for the good of your people, you may count with confidence on the aid and protection of the United States, and on the sincerity and zeal with which I am myself animated in the furthering of this humane work. You are our brethren of the same land; we wish your prosperity as brethren should do. Farewell."[9]

Jefferson's personal nonsectarian religiosity appears to show in his references to the Great Spirit, as in the following letter to the Choctaw nation dated December 17, 1803:

"I am glad, brothers, you are willing to go and visit some other parts of our country.... we thank the Great Spirit who took care of you on the ocean, and brought you safe and in good health to the seat of our great Council; and we hope His care will accompany and protect you, on your journey and return home; and that He will preserve and prosper your nation in all its just pursuits."[10]

President Jefferson also sought full U.S. citizenship for those Indian nations which desired it, including the Cherokee. In his Eighth Annual Message to Congress on November 8, 1808, he presented to the nation a vision of White and Indian unity:

"With our Indian neighbors the public peace has been steadily maintained.... And, generally, from a conviction that we consider them as part of ourselves, and cherish with sincerity their rights and interests, the attachment of the Indian tribes is gaining strength daily... and will amply requite us for the justice and friendship practiced towards them.... [O]ne of the two great divisions of the Cherokee nation have now under consideration to solicit the citizenship of the United States, and to be identified with us in laws and government, in such progressive manner as we shall think best."[11]

Years after the Jefferson presidency, the U.S. government again offered citizenship to the Cherokee who lived east of the Mississippi River, along with 640 acres per family.[12]

As other writings illustrate, Jefferson's general compassion for the Indians at times gave way to impatience with nations which responded unfavorably to his communications with then, and to his frustration with the limited success of his efforts.

The Trade and Intercourse era[edit]

The original Nonintercourse Act was signed by President George Washington.
The U.S. Indian policy was riddled with fraud. Here a peace commissioner offers torn ("ventilated") blankets, an empty rifle case, and 50 sides of spoiled beef, Frank Leslie's Illustrated Newspaper of 18 September 1873

The Indian Intercourse Act of 1790 marked the beginning of the Trade and Intercourse era. This act established that no sales of Indian lands were to be made between any persons or states unless the sale was authorized by the United States. The United States federal government was then granted management of trade and diplomatic relations that involved Indians and their lands. The main goal of establishing the Trade and Intercourse Act was to keep peace on the frontier and avoid war with the Natives. During the Trade and Intercourse Era, the Natives were also included within the United States government, to some degree, by the establishment of the Bureau of Indian Affairs (BIA) within the War Department in 1824. However, land disputes and law jurisdiction cases began to appear frequently in the United States Supreme Court. It was concluded that, "discovery also gave the discoverer the exclusive right to extinguish Indian title either by 'purchase or by conquest'." Natives were recognized only as occupants of the land, and not owners.

Treaties[edit]

Indiana Indian treaties

The federal government was in charge of relations with the Indians, and the procedure was to use the treaty making power of the president and the Senate to make formal arrangements. Over 200 treaties were agreed upon by 1840. Gatlin argues that treaties established a procedure that benefited both parties. The federal government was primarily interested in guaranteeing that Indian lands did not fall into private hands, and that it handled all negotiations with the tribes. These negotiations, says Gatlin, strengthened the tribes sense of unity and leadership. The land sales gave the Indians a steady flow of income, and guarantees of federal financial, medical, and educational aid.[13]

Many of the treaties remain in effect and are of special importance regarding federal recognition of tribal status, hunting and fishing rights, rights to protection of sacred properties, rights to water and minerals, and land claims.[14][15] The federal courts have a long, continuous history of litigation on these issues. The Supreme Court endorsed the procedure, with over 300 decisions making reference to Indian treaties after 1799.[16]

Westward expansion and Indian relocation[edit]

During the early 19th century, as the eastern settlers of the United States felt the desire to explore westward, the natives were caught in the middle of things. Eastern Indian tribes were forced out of their homelands to barren areas that contained fruitless soils, though they had a prosperous relationship beforehand. The reason given to justify the Indian removal stated by Thomas Jefferson was to, "give them a space to live undisturbed by white people as they gradually adjust to civilized ways". Though a problem occurred where westward expansion was on the rise and areas in the west were becoming full with settlers and the lands that Natives resided on (Nebraska and Kansas territories) ended up being taken from them by the government and given to settlers. Treaties were signed by the natives of the area, stating they accepted the downsized reservations or allotments, although their allotments were usually sold to the white settlers by force. The outcome of this removal devastated the Natives, and cost them their tribal identity and independence.

Allotment and assimilation era (1887–1943)[edit]

In 1887, the United States Congress passed the General Allotment Act, which is considered one of the earliest attempts aimed toward assimilation of Native tribes. This act intended to give Natives a sense of land ownership as well as integrate an agricultural lifestyle with the tribes, much like that of the Americans and Europeans. Under the General Allotment Act, tribal lands were no longer under the control of tribal governments; instead, the land was under the control of individual land owners.

This period of allotment over tribal lands became known as the, "Allotment and assimilation era", mainly because the main goal of alloting tribal land was to Americanize Native peoples into mainstream society. The notion that Native peoples could live their lives according to traditional practices and teachings on the reservation was forbidden, thus, assimilation became the epitome of federal Indian policy.

The BIA was used during this time to keep a commanding hold of all aspects of Native life, thus upholding the goal of "civilizing" natives.

The Allotment era resulted in the loss of over two-thirds of tribally entrusted lands from 138 million acres (558,000 km²) in 1871 to 48 million acres (190,000 km²) in 1934. This was mainly due to leasing, and eventually selling, tribal lands to white settlers. Allotment did not work, because it was not something Indians were used to. They did not view the land as something to own. Instead, they viewed it as their home.

Termination and relocation (1945–1960)[edit]

Between the end of the Franklin D. Roosevelt era and the beginning of the John F. Kennedy administration, less traditional Native Americans, congressional leaders, and government administrators, developed a policy that they hoped would integrate the Indian population with mainstream America. To this end, they enacted laws to terminate the government's trusteeship of Indian lands and relocate Indians to the nation's cities. They believed that once Indians left the reservation, they would have opportunities for education, employment and assimilation.

Tribal self determination era[edit]

In the early 1960s, President John F. Kennedy wanted the Indian tribes to be recognized as independent nations governing themselves. He promised the Indian tribes that treaties made prior to 1960 would be recognized by the federal government and that their rights as Indian people would be protected.

This was realized when the Alaska Native Claims Settlement Act (ANCSA) was passed in 1971. The ANCSA allowed for the Alaskan Natives to be given 40 million acres (160,000 km²) of land, federal payments of 462.5 million dollars over eleven years, and another 500 million dollars to help with mineral development in Alaska. All this was in exchange for the Alaskans giving up their claim to the land. The act also allowed the Alaskan tribe to have freedom from the BIA.

In the 1960s, there were many acts passed, geared to helping the Indian tribes. Indian tribes benefited greatly from these because it gave them rights within both the tribal and federal government. In 1968, the Indian Civil Right Act was passed. It recognized the Indian tribes as sovereign nations with the federal government.

In the 1970s, one of the most significant pieces of legislation passed through Congress. The Self-Determination and Educational Assistance Act of 1975, allowed tribes to have more tribal control over federally subsidized programs for Indians. Another important act passed by Congress was the Indian Child Welfare Act of 1978, it granted tribal government jurisdiction over child custody and adoption on the reservation.

As the years continued, the United States government continued to pass legislation that benefited Indian tribes and their sovereignty.

See also[edit]

Notes[edit]

  1. ^ David R. Wrone, "Indian Treaties and the Democratic Idea," Wisconsin Magazine of History (1986) 70#2 pp 83-106
  2. ^ http://www.usconstitution.net/franklinart.html Benjamin Franklin's Articles of Confederation
  3. ^ Thomas Jefferson's Enlightenment and American Indians
  4. ^ http://avalon.law.yale.edu/18th_century/nworder.asp Northwest Ordinance
  5. ^ http://pages.uoregon.edu/mjdennis/courses/hist469_senecas.htm
  6. ^ http://www.encyclopedia.com/topic/Red_Jacket.aspx
  7. ^ http://millercenter.org/president/speeches/detail/3938 Fourth Annual Message to Congress
  8. ^ http://millercenter.org/president/speeches/detail/3939 Seventh Message to Congress
  9. ^ To Brother Handsome Lake
  10. ^ To the Brothers of the Choctaw Nation
  11. ^ Eighth Annual Message (November 8, 1808)
  12. ^ http://digital.library.okstate.edu/kappler/vol2/treaties/che0140.htm Treaty with the Cherokee, 1817
  13. ^ Jay Gatlin, Private Diplomacy to Private Property: States, Tribes and Nations in the Early National Period," Diplomatic History (1998) 22:1 pp 85-99
  14. ^ Alexandra Harmon, ed., The Power of Promises: Rethinking Indian Treaties in the Pacific Northwest (2008)
  15. ^ Charles E. Cleland, Faith in Paper: The Ethnohistory and Litigation of Upper Great Lakes Indian Treaties (2011) excerpt and text search
  16. ^ Charles D. Bernholz, "American Indian treaties and the Supreme Court: A guide to treaty citations from opinions of the United States Supreme Court," Journal of Government Information (2004) 30#2/3 pp 318-431

Further reading[edit]

  • Canby, William C. Jr. (2009). American Indian Law in a Nutshell. Eagan, MN: West Publishing. ISBN 978-0-314-19519-7. 
  • Finkelman, Paul; Garrison, Tim Alan (2008). Encyclopedia of United States Indian Policy and Law. Thousand Oaks, CA: Sage Publications. ISBN 1-933116-98-6. 
  • Pevar, Stephan E. (2004). The Rights of Indians and Tribes: The Authoritative ACLU Guide to Indian and Tribal Rights. New York: New York University Press. ISBN 0-8147-6718-4. 
  • Pommershiem, Frank (1997). Braid of Feathers: American Indian Law and Contemporary Tribal Life. Berkeley, CA: University of California Press. ISBN 0-520-20894-3. 
  • Prucha, Francis Paul, ed. Documents of United States Indian Policy (3rd ed. 2000)
  • Prucha, Francis Paul. American Indian Treaties: The History of a Political Anomaly (1997) excerpt and text search
  • Prucha, Francis Paul. The Great Father: The United States Government and the American Indians (abridged edition, 1986)
  • McCarthy, Robert J. "The Bureau of Indian Affairs and the Federal Trust Obligation to American Indians," 19 BYU J. PUB. L. 1 (December, 2004).
  • Ulrich, Roberta (2010). American Indian Nations from Termination to Restoration, 1953-2006. University of Nebraska Press. ISBN 978-0-8032-3364-5. 
  • Wilkinson, Charles (1988). American Indians, Time, and the Law: Native Societies in a Modern Constitutional Democracy. New Haven, CT: Yale University Press. ISBN 978-0-300-04136-1. 
  • Wilkins, David (2011). American Indian Politics and the American Political System. Lanham, MD: Rowman & Littlefield. ISBN 978-0-8476-9306-1.