What are the problems for the United States having sovereign nations within its borders? How has the U.S. dealt with these problems? Support you views with examples from the program The Story of Federal Indian Law.
There are 2 basic views regarding Indian tribes:
- Indian tribes are here to stay and need a land base which needs to be protected.
- Tribes should disappear and their members absorbed into mainstream society.
The result is that for the last two hundred and twenty-five years federal policy regarding Indian affairs has been pendulum-like, swinging back and forth between assimilation and self-determination. This shift does not occur instantly, it rather resembles a continuum:
The textbooks divide the history of federal Indian policy into several eras.
- Colonial Period – ended in 1820
Initially, European powers dealt with Indians through the use of treaties. After the American Revolution, the federal government continued this practice for two reasons: Non-Indian settlers needed land, and war weary from the American Revolution, the federal government wanted to ensure peaceful relations with Indians.
European powers, and later the federal government, took the role of a protector of the Indians from the settlers who wanted land. The U.S. Constitution gave Congress power over Indian affairs, so Congress passed a series of Trade and Intercourse Acts that made interactions with Indians subject to federal control.
- Removal (1820-1850)
Generally, the non-Indian community believed that Indians would assimilate, become christianized and live in the European tradition. There were those, however, including Thomas Jefferson and his followers, who didn’t believe Indians and non-Indians could live together. Jefferson therefore urged voluntary removal of Indians to their own territory west of the Mississippi River.
Indians were moved from the southeast U.S. to Oklahoma, many of them dying along the way. This resulted in what has become known as the “trail of tears.” The move was termed “voluntary”, but under the circumstances, tribes were left with little choice other than to leave their homelands. By 1849, the eastern U.S. was almost entirely free of Indian tribes. The Bureau of Indian Affairs was then moved from the War Dept. to the Dept. of Interior.
- Movement to Reservations (1850-1887)
Non-Indians began to move westward. The federal government created a policy of restricting tribes to reservations. Tribes were moved entirely or were granted portions of their land, with the bulk of the land going to the federal government through treaties that were often coerced or fraudulently induced.
When Indians were placed on reservations, Indian agents supervised their adaptation of non-Indian ways. Organized religions tried to christianize Indians and reservations were divided among the churches. There are many Baptist churches on reservations; however in the west, Catholic churches are dominant. Some traditional religious dances and ceremonies were outlawed at this time, to encourage christianization of the Indians.
One of the most significant events of this era, in a legal sense, occurred in 1883. The U.S. Supreme Court issued an opinion in a case known as Ex Parte Crow Dog. Crow Dog killed Spotted Tail on the Lower Brule Sioux Reservation. Both Crow Dog and Spotted Tail were members of the Lower Brule Sioux Tribe. The district court in the Dakota territory sentenced Crow Dog to death for the murder of Spotted Tail. Crow Dog claimed that the laws of the U.S. did not apply and that the district court had no jurisdiction to try him. He then applied to the Supreme Court for a writ of habeas corpus. (This is a request that is made when an individual is being illegally held against his will).
There was a law that applied in Indian Country which stated that general laws of the United States applied to punish crimes committed anywhere in the exclusive jurisdiction of the U.S., including Indian Country. The act provided for an exception when an Indian had been punished by the local law of the tribe, or in any case when a treaty provision gave the tribe exclusive jurisdiction over such offenses.
The argument made in support of jurisdiction was that pursuant to a treaty, the U.S. had jurisdiction. The treaty provided that “If bad men among the Indians shall commit a wrong or depredation upon the person or property of any one, white, black, or Indian, subject to the authority of the Untied States,” the Indians will turn them over to the United States to be punished. The court said it is clear that this was not meant to apply to a crime committed by an Indian against another Indian.
Next, the U.S. relied on treaty language that said, “Congress shall, by appropriate legislation, secure to the tribe “an orderly government.” The court said this meant self-government – the tribe could maintain peace and order through use of their own laws and customs. The court further said that Indians should be judged by their own law not by “one which measures the red man’s revenge by the maxims of the white man’s morality.” (In this case, peacemakers of the tribe negotiated with the families of Spotted Tail and Crow Dog for compensation for Spotted Tail’s death. Crow Dog and his family gave Spotted Tail’s family $600, eight horses and one blanket to compensate them for the loss of Spotted Tail).
It is said that by the time the court’s decision reached the Dakota Territory, Crow Dog had a noose around his neck. Non-Indian authorities had no choice but to let him go.
The BIA had been lobbying Congress for many years to get federal criminal jurisdiction extended into Indian Country. Congress reacted to this case by giving the BIA what they wanted. The Major Crimes Act was passed, which granted criminal jurisdiction over certain crimes to the federal government. This marked the beginning of the next shift in federal policy towards assimilation.
- Allotment and Assimilation (1887-1928)
Those friendly to Indians realized that there was hopeless poverty on reservations. Other non-Indians resented the reservation system because there were tracts of land that were completely unavailable to settlers.
In 1887, the General Allotment Act, also known as the Dawes Act, was passed. Under the plan, Congress thought they could assimilate the Indians in a single generation. It was supported by those sympathetic to the plight of Indians, who believed that Indians could be given plots of land, become middle-class farmers and assimilate into mainstream society.
The Act authorized the President, whenever he believed it was advantageous to the Indians, to allot reservations into farm-size parcels, according to a formula dictated by Congress. The act called for 160 acres of land to be given to the head of each family. 80 acres was to be given to all other tribal members. These quantities were doubled if land was only suitable for grazing, but later all quantities of land to be distributed were cut in half.
There were many problems with the Allotment Act, as you will see from the external links. One of the problems with allotments is that it didn’t provide for future generations. The land was divided at a specific point in time among those who were alive at that time.
The Allotment Act provided that allotments were to be held in trust by the federal government for 25 years. This meant that the federal government owned the land for the benefit of the individual tribal member. The purpose of the 25-year period was to give Indians time to learn proper farming and business methods. During this period, the land was not subject to state law including taxation, but at the end of the 25-year period, title to the land was given to the individual Indian and state law applied, including taxation. Many allottees lost their land because they could not pay the taxes.
Indians living on reservations were not considered U.S. citizens until 1924; however, under the Allotment Act, upon receiving an allotment, an Indian became a U.S. citizen and was subject to state criminal and civil law. In 1906 the Allotment Act was amended so that Indians became citizens when the trust period expired and they received title to their land.
Each reservation had a federally appointed Indian agent. The agents withheld rations and annuities for individuals who wouldn’t work their land. For many tribes, agriculture was not a natural way of subsistence. Plains Indians were hunters, traditionally following the buffalo. Indians in Washington and the Great Lakes were fishermen. Even the withholding of food and money was insufficient to convert many Indians to a life of farming.
In 1891, the Allotment Act was amended to allow the Secretary of the Interior to lease the land of any allottee who couldn’t benefit from or improve his allotment. If the agent didn’t like the way an allotment was being used, he could lease it to whomever he wanted. After 1891, leasing became a common occurrence.
A further problem is that the Allotment Act subjected allotted land to state intestacy laws if the allottee died without a will. Most Indians didn’t have wills. Under state law, if a person dies without a will, the property will pass to his or her spouse. If there is no spouse, the property passes to his or her children. In the 1800s, it was common to have large families. If an Indian died without a spouse, each child would receive an undivided interest in the parent’s property. For example, if a man dies leaving 10 children, each child will receive a 1/10th share of the allotment. If each of those children has 10 children and dies without a will, those children will inherit a 1/100th interest in the land. These interests are undivided. That is, each of the 100 people doesn’t get an acre of land; they all receive a 1/100th interest in the entire parcel. To do anything with the land, there must be agreement of all 100 owners. Getting 100 family members to agree on anything is a tumultuous task (at least in my family). This has resulted in many allotments being unused. This problem still exists today.
By the mid-1920s, the federal government realized that assimilation was not going to work and the shift began towards reorganization.
- Reorganization (1934 – 1953)
The Merriam Report was prepared at the direction of the Secretary of the Interior to assess conditions on Indian reservations. The report stated that the Congressional purpose behind the Allotment Act was to make farmers out of the Indians, but the act provided for instruction and training in agriculture, which did not occur. The report further outlined procedures for improving Indian services and made recommendations for expenditures of funds.
Congress was outraged when they received the Merriam Report. The general belief was that the report was slanted in favor of the bureaucratic apparatus of the BIA. The Senate Committee on Indian Affairs therefore conducted their own investigation. Several years later, after the senators made many trips to reservations and observed the poverty firsthand, they came up with basically the same results.
In 1934, the Indian Reorganization Act, (IRA), also known as the Wheeler-Howard Act, was passed to rectify conditions on the reservations. The Act promised expanded social programs, federal funding of projects and put an end to allotments. It also extended the trust period indefinitely for existing allotments that were still in trust. In addition, it authorized the Secretary of the Interior to restore to tribal ownership any excess lands the federal government acquired from the tribes under the Allotment Act, as long as the land was still held by the government.
The IRA allowed tribes to organize for their common welfare and adopt a constitution and bylaws to be approved by the Secretary of the Interior. The BIA sent a model constitution and bylaws to all tribes. The constitution and bylaws had to be approved by the majority of adult Indians residing on the reservation within two years. Benefits to tribes if they organized pursuant to the IRA were that, the tribe had the right to:
- Employ legal counsel, subject to BIA approval
- Prevent the sale, disposition, lease or encumbrance of lands or other tribal assets without their consent
- Negotiate with federal, local and state governments
- Receive appropriations
- Form Tribal Corporations
181 tribes voted to accept the act and 77 tribes specifically rejected the act, including the Navajo tribe.
Tribal governments were bolstered under the IRA, but not in the traditional sense. The new governments, created at the direction of the BIA, often had little resemblance to the tribal governments that once existed, but even using this federal model, this era of supporting tribal governments only lasted until 1953.
Termination and Relocation (1953 – 1961)
This period began towards the end of World War II. Domestic budgets were reduced to support the war effort and many federal agencies were reduced or closed. Many Indians left the reservation to work in factories or join the armed forces. The federal government began a policy of paying Indians to leave reservations and move to selected cities to support the war effort. In California, Los Angeles and Oakland were selected as cities for relocation.
In 1948, Congress wanted to transfer responsibility for Indians to the states as soon as possible. At the same time, the National Council of Churches issued a report recommending that Indians be given full citizenship by eliminating a lot of the legislation that bound them to the federal government. Conservatives wanted federal budget cuts and believed that Indians could make it on their own once freed from government control, while liberals took a civil rights position and thought they could help the Indians by lifting discriminatory legislation.
In 1947, the Senate Civil Service Committee asked the acting Indian Commissioner to bring them a list of tribes that could function on their own, and concentrate on those that could do so within a reasonable time. Tribes chosen for termination were based on four factors: (1) degree of assimilation of the tribe; (2) economic conditions and available resources; (3) willingness of the tribe to dispense with federal services; and (4) willingness and ability of the states to provide public services. In 1948, under pressure from Congress, the BIA began to assemble this data on all federally-recognized tribes.
In 1952, House Resolution 108 was passed declaring that “at the earliest possible time, all of the Indian tribes and the individual members thereof located within the States of California, Florida, New York and Texas, should be freed from federal supervision and control…” ( Resolutions are statements of policy only and have no legal effect). After receiving reports from the BIA regarding the social and economic status of tribes, Congress passed a series of acts terminating tribes. These included the California Rancheria Act that terminated 31 California tribes. After passage of the acts, the BIA was given a period of time to implement complete termination of federal services to the tribes. The shortest period of time allowed was less than 1 year and the longest was 12 years.
The overwhelming majority of Indians were opposed to termination, but in San Diego County there was a division among Indians as to whether tribes should support termination. The Mission Indian Federation, an Indian organization that had been around for many years, was now led by Purl Willis, a non-Indian. Willis argued in favor of termination. The argument made was that many Indians were now living off-reservation, and yet services were provided as if all Indians still lived on reservations. Willis argued that termination would free the Indians. It was time for them to be treated like all citizens. At the same time, a few Indians, including Max Mazetti from Rincon, led the local opposition to termination. The argument for the opposition was that Indians were not prepared to submit to state jurisdiction, including state taxes and property taxes. The fear was that many Indians would lose their land if they were forced to pay taxes.
The primary argument in favor of termination in San Diego County was an economic one. All federal health services for California Indians ended in 1955. The closest Indian hospital in San Diego County was Soboba Indian Hospital in Hemet. This hospital was closed and many Indians tried to use the county hospital but were denied treatment. The federal government also stopped federal support for individual Indians with the expectation that county and state governments would carry on this function. San Diego County refused to pay welfare benefits to Indians living on reservations until a lawsuit was filed and decided in favor of the Indians. This lack of benefits left many Indians with no way of supporting themselves. It was in this climate that P.L. 280 was passed.
In 1958, the Secretary of the Interior casually announced that no other tribes would be terminated without their consent, but it was not until 1970, that the termination policy was formally repudiated. At that time, it was President Nixon who asked Congress to officially repeal the termination policy.
Tribal Self- Determination (1968)
There was plenty of social change in the 1960s. It was the time of the Viet Nam War, the peace movement, free love and the occupation of Alcatraz by Indians. Suddenly, it was cool to be Indian.
This era was marked by a reversal of Federal Indian policy. The new goal was to strengthen tribal governments and once again try to make them self-sufficient. Farming failed, BIA domination through the Indian Reorganization Act failed, total assimilation through termination failed and now the federal government was ready to try something new.
In 1968, the Indian Civil Rights Act was passed which purported to provide individuals with protections not previously afforded to them. The Bill of Rights serves to restrain state and federal governments but does not apply to tribal governments since they predate the Constitution. The Indian Civil Right Act provides for most of the rights asserted under the Bill of Rights, but not all of them.
The Indian Civil Rights Act includes a provision that requires consent from both tribes and states before asserting jurisdiction pursuant to P.L. 280. The Act also includes a provision which provides for the retrocession of P.L. 280 jurisdiction at the request of the state – not the tribe – so if a tribe wants to retain jurisdiction over its own criminal and/or civil actions, it must have state approval.
In 1975, the Indian Self-Determination and Education Assistance Act was passed. The act took control of federal programs from the BIA and gave it to the tribes. At the request of tribes, the Secretary of the Interior was directed to enter into contracts with tribes, and organizations designated by tribes, for the administration of health, education and construction programs. The act also gave preference for American Indians when hiring for contracts affecting Indians.
In 1982, the Indian Tribal Government Tax Status Act was passed. This act gives tribes many tax advantages that are given to states, including the right to issue tax-exempt bonds to finance government projects.
In 1983, President Reagan reaffirmed the policy of strengthening tribal governments, with the additional goal of reducing their economic dependence on the federal government.
As you previously read, federal policy shifts between self-determination and assimilation. There are several factors occurring in recent years that seem to indicate that the tide is shifting yet again.
The Indian Gaming Regulatory Act represents an intrusion on tribal sovereignty previously seen only in laws affecting the sale of alcohol on reservations. Gaming compacts negotiated between tribes and states contain varying degrees of applicability of state laws, but all compacts apply some measure of state law to Indian tribes that did not previously exist.
The BIA’s budget has been drastically reduced since about 1995. In addition, several bills have been proposed in the last few years that erode tribal sovereignty.
There is a bill that has been raised in at least two congressional sessions that would impose corporate income tax on tribal governments for casino income. This is unprecedented. State, city, county and tribal governments have never paid income tax on their earnings. The state of California pays no federal taxes on their lottery income, yet this bill would impose such a tax on tribes. The bill has been defeated every time it has been proposed, but it is almost certain to be raised again.
A bill has also been proposed a few times to use means testing in determining federal allocations to tribes. This would take into account a tribe’ s income from all economic development in determining how much federal aid to give the tribe. Proponents claim that tribes, particularly wealthy gaming tribes, should not receive appropriations from the federal government because they do not need the money. Opponents claim that the federal government has a trust responsibility to the tribes, as enunciated in the Marshall trilogy, regardless of income. This is the price the federal government should pay for taking tribal lands. Some fear that means testing is the beginning of termination. This bill has also been defeated every time it has been proposed but is sure to be raised again.
Yet another bill which has been proposed several times is Slade Gorton’s bill to eliminate tribal sovereign immunity. This bill has thus far not passed, and Gorton was not re-elected to the senate in 2000, so it is uncertain if this bill will be raised again. The U.S. Supreme Court has included in its opinions an invitation to Congress to eliminate tribal sovereign immunity.
Indian housing has taken a new turn. Prior to 1994, Indians were unable to obtain mortgages on reservations because they do not own the land. There is now a program in place, known as HUD Section 184 loans, which enable Indians to obtain federally-guaranteed mortgages to build, buy or renovate houses on the reservation. Traditional Indian housing programs have also changed. The Dept. of Housing and Urban Development (HUD) funds Indian housing authorities and builds houses for low-income individuals to either buy or rent. Up until the last few years, these housing authorities have been subsidized. Low income housing on reservations is still subsidized but the new housing laws require that Indian housing authorities act as businesses. At the same time, it allows tribal housing authorities more flexibility by allowing them to determine how they will allocate federal monies.
The Republican-controlled congress has had a policy of federal de-regulation and granting power to the states. At the same time, there is a conservative U.S. Supreme Court who are consistently affirming and expanding state rights, while limiting tribal rights.
While many Indians still live in poverty on isolated reservations, others are sophisticated, have money and know how to use it for political gain. Some tribes, as well as individual Indians, are in a position to make sizable campaign contributions, which equates to political power. Tribes have more political power now than ever before in history. With the power of the tribes pitted against the conservative congress and court, it will be interesting to see where federal policy goes in the future.
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