Legal History of U.S. Indian Policy
The fact that the literary historical periods used on this site correspond essentially to major shifts in U.S. Indian policy is no coincidence. This is because many of the major rhetorical and aesthetic shifts in Indian writing have taken place as part of an ongoing process of engagement with the law and institutions of colonialism. For readers unfamiliar with the legal history of U.S./Indian relations, what follows is a brief overview and timeline. Also included is a brief bibliography of sources dealing with U.S. Indian law.
1. Pre-Revolutionary Precedents (15th century-1776)
During the earliest phases of European exploration, the law of discovery (derived from papal edicts produced during the Crusades) was used to legitimize territorial claims in the New World. The law of discovery differentiated rights of occupation (essentially the rights of non-Christian "savages" who merely "lived on" a piece of territory) from rights of possession (the rights of "civilized" men who made "productive" use of it). Right of possession were deemed superior, an axiom that enabled early European explorers (such as Columbus) to extinguish aboriginal land title largely through perfunctory legal rituals. By the mid-16th century, though, the legal right of Europeans to dispossess indigenous people was limited to cases of "just war" (where natives were deemed to have refused to respect the natural rights of their European neighbors) or "free exchange" (treaties). In British North America, these two forms of relations dominated the pre-Revolutionary period. In Virginia, for example, after a period of uneasy coexistence, the Powhatan confederacy was essentially destroyed through military force. In the Northeast, the Pequot were nearly exterminated in a "just war" begun by their Puritan neighbors. On the other hand, British settlers were also part of the treaty-centered "covenant chain" of the Iroquois Confederacy. To sum up, then, a pattern of periodic warfare mixed with treaty-relations persisted until the American Revolution. Indian law was a blend of the law of discovery and treaty contracts.
2. Early Federal Policy (1776-1828)
The early years of the United States saw the Federal Government take over the authority for regulating Indian affairs, negotiating treaties, etc. "Just War" theory was initially used against some nations who had sided with the British (the Seneca, for example) as a pretext for imposing manifestly unequal treaty settlements. Nevertheless, treaties remained the centerpiece of Indian law and policy. In 1823, Chief Justice John Marshall's decision in Johnson and Graham's Lesee v McIntosh updated the law of discovery in light of the subsequent history of treaty relations. Marshall argued that discovery gave the U.S. government (as the successor to British authority) the exclusive right to extinguish tribal land rights. While he shied away from the position that Indian peoples have no rights over their land, Marshall nevertheless suggested the inevitability (and justification) of European expansionism.
3. Removal and Relocation (1828-1887)
Throughout the early decades of the new Nation, pressure began to mount to remove Indian peoples living on coveted eastern lands to the west. Such removal was to be effected through treaties, but many nations resisted the pressure to leave their ancestral homes. The struggle over removal came to a head with the election of Andrew Jackson to the presidency in 1828. Georgia had been pushing the Federal government for some time to honor a compact promising the removal of the Cherokee. In 1830, Congress passed the Indian Removal Act, authorizing Jackson to exchange land in the West for territory occupied by eastern tribes. Marshall's court decided two key cases dealing with the removal policy, Cherokee Nation v Georgia (1831) and Worcester v Georgia (1832). In the first of these cases, Marshall defined the ambiguous legal status of Indian in the United States through the term "domestic dependent nations." In doing so, he essentially laid out a rationale for Indians' quasi-sovereign status under the "protection" of the Federal goverment, a concept still central to U.S. Indian law. Worcester v Georgia affirmed this view of tribal sovereignty, but President Jackson refused to enforce the court's decision. The Cherokee, as a result, were coerced and defrauded into signing a treaty of questionable legitimacy and then (along with other "civilized" nations) forcibly removed to the West along the infamous Trail of Tears in 1838 and 1839.
The legacy of the legal struggle over removal during the 1830s was an ambiguous one. While some degree of tribal sovereignty had been affirmed by the highest court of the land, it was also clear that Indians had no real recourse in obtaining enforcement of their claims to those rights. If some nations (the Seneca, for example) were able to partially resist pressure to give up their lands, the next four decades were marked by the creation of a system of Western Reservations. These reserves were occupied both by relocated eastern tribes and western nations who had been "rounded up" by the U.S. military. In 1871, a rider attached to an appropriation bill in Congress prohibited the further negotiation of treaties, signalling the intention of the government to stop treating Indian tribes as sovereign nations in future policy decisions. While extant treaties were not invalidated by this act of legislation, it did signal a new era of paternalism and direct legislative oversight of tribal life.
4. The Allotment Era (1887-1928)
During this period, the Federal government sought to force Indians to assimilate into the mainstream of American life, breaking up tribal cultures and transforming Native Americans into invididual freeholding farmers. Federal criminal laws were extended to cover the reservations in the 1885 Major Crimes Act. Traditional Indian religious practices were outlawed by Bureau of Indian Affairs administrators. Finally, the General Allotment Act of 1887 authorized the Secretary of the Interior to divide the western reserves into smaller plots of land, to allot those lands to male heads of families, and to hold those plots in trust for a period of 25 years (long enough for these new farmers to get on their feet). At the end of this period, the "freeholding" Indians would become citizens of the state in which they resided, begin paying taxes, and, essentially, cease to be Indian. While allotment was conceived by some as a benevolent policy, one designed to stave off the "inevitable" extinction of Indian peoples, it quickly proved to be a distastrous policy. The alloted lands were generally not viable for self-sustaining agriculture or ranching, and the supression of indigenous cultural practices proved spiritually and socially devestating. White speculators descended on the reservations, buying or leasing lands from those who could not pay taxes on them. Between 1887 and 1934, the land holdings of Indian tribes had declined from 138 million acres to 48 million acres. By the 1920s, the failure of allotment was clear. The Merriam Report of 1928, drafted with Indian participation, recommended sweeping changes in Federal policy.
5. The Indian New Deal and Termination Eras (1928-1961)
After the catastrophic failure of allotment, the period of the so-called Indian New Deal saw a concerted attempt to reverse the damage done during the preceding four decades. Under the leadership of John Collier, the BIA began to encourage the reemergence of traditional Indian religious and cultural practices. The Indian Reorganization Act of 1934 ended the policy of allotment, prohibited the transfer of additional tribal lands to anyone outside of the tribe, set aside funds for economic development, and encouraged tribal self-government by allowing the creation of tribal constitutions and bylaws. In general, then, the IRA represented a concerted attempt to reinvigorate Indian sovereignty. Regrettably, the New Deal was followed immediately during the Post-War era by the ominously titled and reactionary "termination policy." Termination, based on the "plenary power" of Congress to unilaterally legislate Indian policy, set in motion a process of elimination of Federal assistance and tribal recognition for Indian peoples. While the policy was short lived, the effects for "terminated" tribes were severe; some tribes are still struggling to regain Federal recognition. The other significant abridgement of tribal sovereignty during the 1950s was the passage of Public Law 280, which allowed state governments to assume civil and criminal jurisdiction over reservation lands in several western states. PL 280 muddied the jurisdictional waters for many tribes, creating a complex struggle between states, the Federal government, and tribal governments that persists to this day.
6. The Self-Determination Era (1961-present)
After the drive toward termination had been beaten back, Indian policy changed again during the 1960s, in a way most reflective of the spirit of the times. The passage of the Indian Civil Rights Act in 1968, the Indian Education Act of 1972, and the Indian Self-Determination and Education Act of 1975 represented a widespread and concerted effort to allow Indian peoples more direct control over their educational systems, federal resources, and the political process on the reservations. While there has been a backlash of late (during the 1990s in the Renquist Court in particular), the last 30 years represent a hopeful period in U.S./Indian relations. Tribal religious freedoms are being respected in unprecedented ways, and some tribal governments have become remarkably effective instruments in promoting both economic development and political participation. The picture remains quite uneven, however, and the disparities between wealthy, influential tribes and impoverished ones is stark. Nevertheless, the flowering of Indian writing in the last three decades has coincided with a clear political resurgence that has been reflected in the legal system itself.
Brief Bibliography
Deloria, Vine and Clifford M. Lytle. American Indians, American Justice. Austin: University of Texas Press, 1983.
Getches, David H and Charles F. Wilkinson. Federal Indian Law: Cases and Materials. St. Paul: West Publishing Company, 1986.
Pevar, Stephen L. The Rights of Indians and Tribes. Carbondale: Southern Illinois University, 2002.
Prucha, Francis Paul, ed. Documents of United States Indian Policy. Lincoln: University of Nebraska Press, 1990.