Chapter 12

Delving into the Details of U.S.-Indian Relations

In This Chapter

bullet Serving up sovereignty . . . or not?

bullet Reviewing the U.S. policies toward Indians

bullet Checking out how Congress weighs in

Upon their arrival, and for the next several centuries, Europeans had to contend with Natives who had been living on the North American continent for thousands of years. Such “contending” did not always go well.

Initially, tribes were treated like nations. Sort of.

There were seven stages of U.S.-Indian relations, beginning in 1608, and continuing through today:

bullet Treaties (1608–1830)

bullet Removal (1830–1850)

bullet Reservations (1850–1871)

bullet Assimilation (1871–1928)

bullet Reorganization (1928–1942)

bullet Termination (1943–1968)

bullet Self-determination (1968–present)

In this chapter, we begin by giving you an understanding of what tribal sovereignty is as well as give you an overview of each stage of U.S.-Indian relations, a discussion of its success or failure, and its important milestone moments that lead us to where Native Americans are today — self-determination.

Tribal Sovereignty

Tribal sovereignty consists of a tribe’s governmental powers. This comprises powers usually exercised by the federal government, including the power to tax or not to tax, to enforce criminal laws, to adjudicate disputes within a court system, and so forth.

Remember

From the beginning, tribes have considered themselves to be sovereign nations, equivalent to the home countries of the European settlers (you can see an example of this idea in Figure 12-1). Today, the U.S. deals with tribes on a government-to-government basis.

In the 16th and 17th centuries, most Indian tribes were accorded tribal sovereignty and treated as legal equals by, first, the European countries the settlers hailed from, and later, by the new United States government.

Figure 12-1: An Indian welcom- ing an Englishman and his family.

 Figure 12-1: An Indian welcom- ing an Englishman and his family.

Britain, Spain, and France, for the most part, did not want to fight to acquire Indians lands. And contrary to common belief, most Indian lands changed hands through treaties, not conquest.

In the 18th and 19th centuries, huge tracts of land were ceded to the U.S. government, often for very little compensation. Like buying Manhattan Island from the Lenape Indians for around $24 worth of trade goods, for example.

Initially — Manifest Destiny and the Discovery Doctrine notwithstanding — tribal sovereignty meant that tribes were free to negotiate the sale of lands that they occupied and were considered the legal “owners” in treaties and negotiations. Land, natural resources, mining rights, and other lucrative goodies of the continent changed things in due course.

Treaties (1608–1830)

Treaties were the legal instrument of choice in the early years of European-Indian relations. A treaty is a formal contract in writing that spells out the terms of the agreement for both sides.

But how can one party to an agreement — in this case, a treaty — agree to anything if they can’t read or write in the language of the other party to the treaty? Good question. And the answer is that the tribes were explained the terms of the treaty, as best possible, with the help of a translator if one was available, or through sign language and limited verbal exchanges, and that was that.

Chief Ouray of the Ute tribe said in 1879, “The agreement an Indian makes to a United States treaty is like the agreement a buffalo makes with the hunter when pierced with arrows. All he can do is lie down and give in.”

Such a deal?

Looking back, it’s no surprise many Native Americans feel like they haven’t always gotten a fair shake from the United States.

In the 1802 Treaty of Fort Confederation, for example, the Choctaw nation ceded 50,000 acres of their land to the United States government for $1.

The prior year, in the Treaty of Fort Adams, the Choctaws received “care and protection,” $2,000 “in goods and merchandise,” and “three sets of blacksmith’s tools” for 2,641,920 acres of land.

Yes, you read that right — 2.6 million acres for two grand and some tools.

In the 1827 Treaties of Buttes des Morts, the U.S. government bought 500,000 acres of Menominee land in the Pacific Northwest for four and a half cents an acre.

These treaties were not atypical of the agreements signed between Indian tribes and the new U.S. government in the 19th century.

Here is a look at two of the more important U.S.-Indian treaties.

The Treaty with the Delaware Indians (1778)

This was a very important treaty and is considered by historians to be the first truly official treaty between the United States and Indians.

On September 17, 1778, at Fort Pitt, Pennsylvania, the treaty was signed by representatives of the U.S. government and John Kill Buck, The Pipe, and White Eyes of the Delaware Nation. The Indians could not sign their name, so they instead made their mark.

This significant treaty covered the following points:

bullet All prior offenses and hostilities between the U.S. and the Delawares were forgiven.

bullet The U.S. and the Delawares were friends forever and allies in time of war.

bullet The U.S. had free passage through Delaware lands.

bullet Delawares could join the U.S. military.

bullet Both sides had the right to a fair and impartial jury trial if charged with offenses.

bullet An agent was to be appointed to deal with the Delawares on trade issues.

bullet All the Delaware land rights previously agreed to were intact.

bullet The Delawares would be represented in Congress.

The Treaty of New Echota (1835)

This treaty, an agreement produced as a result of the 1830 Indian Removal Act, was never signed by elected members of the Cherokee tribe. It stated that the U.S. government would pay $5 million and land in Indian territory for the entire Cherokee nation’s land holdings. A group of Cherokees who did not want to risk war with the U.S. signed the treaty.

It was renounced and rejected by a multitude of Cherokees, and even though a petition with thousands of names on it was sent to Washington to protest the treaty and the relocation, the Senate passed the treaty by one vote on May 23, 1836, and the decision was made to enforce it.

The petition (which is on display in the Smithsonian’s National Museum of the American Indian) was signed by approximately 16,000 of the estimated 18,000 Cherokees (88 percent) who were alive at the time.

This treaty was the direct cause of the horrible 1838 Trail of Tears Cherokee removal march. (See Chapter 6 for more on the Trail of Tears.)

Remember

Indian treaties are equal to federal law.

Removal (1830–1850)

The Indian Removal Act was a bill passed by the U.S. Congress on April 24, 1830, that essentially made official a policy of removing Southeastern tribes from their lands.

This was considered necessary because the United States wanted to expand into lands owned by members of the Five Civilized Tribes, and they were, as many of the time put it, in the way. They were obstructing progress. They were holding back the growth of a nation that saw great tracts of southern lands and vast opportunities awaiting them.

There was cotton to be grown, and slaves to pick it. So the Indians had to go.

Remember

The Five Civilized Tribes were the Chickasaw, Choctaw, Creek, Seminole, and Cherokee. They were called this because they had adopted the ways of the whites: a European-style education, large farming enterprises, and the keeping of slaves.

Truth be told, this was not technically forced removal, contrary to some interpretations of the bill. Indians were offered money and land to “voluntarily” relocate. Members of the Five Civilized Tribes living in the South were asked to move to what is now Oklahoma.

In his Second Annual Message to Congress, delivered on December 6, 1830, President Andrew Jackson made it clear that Indians living on lands east of the Mississippi were to move to lands west of the Mississippi.

The Indian Removal Act provided funds for the government to facilitate their relocation. Jackson led off his statement with the following:

“It gives me pleasure to announce to Congress that the benevolent policy of the Government, steadily pursued for nearly thirty years, in relation to the removal of the Indians beyond the white settlements is approaching to a happy consummation.

This is a disingenuous statement, since many would challenge the description of U.S. former policy as “benevolent,” and there were many who would not describe the consummation of that policy as “happy.”

Many Indians did, in fact, agree to move west. Very few were happy about it, but they went anyway. Many treaties were signed by tribal leaders in which they accepted cash in hand and land in Indian Territory for their lands in the U.S. South.

By 1847, the various removal treaties and removal wars (First, Second, and Third Seminole Wars, in particular) had resulted in 25 million acres of southern land being opened to white farmers, cotton growing, and slavery.

Reservations (1850–1871)

Contrary to popular belief, reservations weren’t parcels of land the U.S. government paternalistically “gave” to Indians during the period of removal. In many cases, reservations were sections of Indian land the Indians “reserved” for themselves when signing treaties and agreeing to vacate and move west.

In 1850, Commissioner of Indian Affairs Orlando Brown painted a pretty picture of the whole sordid endeavor by stating that reservations should be “a country adapted to agriculture, of limited extent and well-defined boundaries; within which all, with occasional exceptions, should be compelled constantly to remain until such time as their general improvement and good conduct may supersede the necessity of such restrictions.”

In 1851, the Indian Appropriations Act allocated federal money to move tribes onto reservations.

Warning(bomb)

Reservations were “necessary” — but only until Indians displayed “good conduct.”

Such admirable behavior would come after the Indians had been converted to Christianity, of course.

The reservation system was deemed a failure 20 years after it was implemented.

Assimilation (1871–1928)

When reservations didn’t work to “civilize” the savages, the government decreed that the only solution to the Indian problem was to absorb them into mainstream American society and culture, to “assimilate” them.

This effort was undertaken by chopping up the reservations into smaller parcels for farming — 160 acres for a family and 80 acres for a single person — and removing Indian children from their families and educating them at boarding schools set up by the government.

At these schools, anything “Indian” was absolutely forbidden. Students speaking their native language would be severely punished. Parents were only allowed to visit once or twice a year, thereby completely eliminating their involvement in decisions regarding their children.

The assimilation plan didn’t work either, and the Meriam Report of 1928, which looked at conditions on Indian reservations in 26 states, spelled out its failings in horrifying detail and sent shockwaves through the U.S. government and the tribal peoples.

Below are some of the more notable findings from the staggeringly important Meriam Report. Reading through this list powerfully illustrates just how difficult it was to be a Native American in America in the 19th and early 20th centuries:

bullet “An overwhelming majority of the Indians are poor, even extremely poor, and they are not adjusted to the economic and social system of the dominant white civilization.”

bullet “The health of the Indians as compared with that of the general population is bad.”

bullet “The prevailing living conditions among the great majority of the Indians are conducive to the development and spread of disease.”

bullet “With comparatively few exceptions, the diet of the Indians is bad. It is generally insufficient in quantity, lacking in variety, and poorly prepared.”

bullet “The housing conditions are likewise conducive to bad health.”

bullet “Sanitary facilities are generally lacking. Except among the relatively few well-to-do Indians, the houses seldom have a private water supply or any toilet facilities whatever. Even privies are exceptional. Water is ordinarily carried considerable distances from natural springs or streams, or occasionally from wells.”

bullet “The income of the typical Indian family is low and the earned income extremely low.”

bullet “In justice to the Indians, it should be said that many of them are living on lands from which a trained and experienced white man could scarcely wrest a reasonable living. In some instances the land originally set apart for the Indians was of little value for agricultural operations other than grazing.”

bullet “The survey staff found altogether too much evidence of real suffering and discontent to subscribe to the belief that the Indians are reasonably satisfied with their condition. The amount of serious illness and poverty is too great to permit of real contentment. The Indian is like the white man in his affection for his children, and he feels keenly the sickness and the loss of his offspring.”

bullet “Several past policies adopted by the government in dealing with the Indians have been of a type which, if long continued, would tend to pauperize any race.”

bullet “The work of the government directed toward the education and advancement of the Indian himself, as distinguished from the control and conservation of his property, is largely ineffective.”

bullet “The survey staff finds itself obliged to say frankly and unequivocally that the provisions for the care of the Indian children in boarding schools are grossly inadequate.”

bullet “The hospitals, sanatoria, and sanatorium schools maintained by the Service, despite a few exceptions, must be generally characterized as lacking in personnel, equipment, management, and design.”

bullet “The exploitation of Indians in Oklahoma has been notorious, but this exploitation has taken place under the state courts and the guardians appointed by them.”

The Meriam Report could not be ignored. Something had to be done — an Indian “New Deal” of sorts — and the Indian Reorganization Act was the next attempt by the U.S. government to come up with a fair, workable policy toward Native Americans.

Reorganization (1928–1942)

The Indian Reorganization Act (also known as the Wheeler-Howard Act), had noble intentions. Its defined purposes were

bullet To conserve and develop Indian lands and resources

bullet To extend to Indians the right to form business and other organizations

bullet To establish a credit system for Indians

bullet To grant certain rights of home rule to Indians

bullet To provide for vocational education for Indians

And, for the most part, the IRA worked to implement reforms called for by the Meriam Report.

Well over 150 tribes and Indian villages adopted constitutions; the credit system allowed economic improvements; and Indian kids went to public schools and their education improved drastically.

The Indian Reorganization Act was the basis for later Indian legislation and is considered a milestone toward achieving independence and self-determination for Indians in the United States.

The seven types of Indian lands

According to the U.S. Environmental Protection Agency, these are the seven types of Indian lands in the United States:

bullet Reservations: Lands set apart for the use of designated tribes.

bullet Trust Lands: Lands held in trust by the U.S. government for Indians, usually a tribe.

bullet Checkerboard Lands: Lands that are a combination of nonmember-owned parcels and tribal parcels, resulting in a checkerboard pattern.

bullet Fee Lands: Land owned by non-Indians within the boundaries of a reservation.

bullet Dependent Indian Community: Lands set apart for Indian use under the superintendence of the U.S. federal government.

bullet Allotments: Lands held in trust by the U.S. government for individual members of a tribe.

bullet Ceded Territory: Lands within a reservation or aboriginal area that have been sold by a tribe or taken by the U.S. government on which tribe members retains certain rights, like hunting and fishing.

Termination (1943–1968)

This policy dismantled tribes and took the official government position that Native Americans were subject to the same laws as applied to all American citizens. It severed the government-to-government policy that had been in effect, and allowed the U.S. to indulge in land grabs. And the U.S. was willing to litigate until doomsday to fight tribal resistance to this policy.

The termination policy essentially reversed many of the reforms that had been implemented during reorganization. Why’d the U.S. government do that, you’re probably wondering, right? To save money, is why. The federal government wanted to cut the budget for Indian affairs and, in typical bureaucratic thinking, they figured fewer Indians, less money spent on them. The fact that the terminated tribes simply didn’t fade away like frost in the morning sun seemed to have not occurred to them as being anything to worry about.

Also, it was about natural resources. There were valuable mineral resources on Indian land that proved irresistible, including:

bullet The Navajo lands had uranium and oil.

bullet The Crow lands had coal.

bullet The Hopi lands had oil.

bullet The Ute lands had oil, coal, and natural gas.

bullet The Apache lands had natural gas.

Due to the termination policy, the trust relationship that the U.S. government had previously established with the Indian population was now in tatters.

Self-Determination (1961–present)

It was President Richard Nixon who emphasized the critical importance of tribal self-rule after the failure of the Termination policies. His July 8, 1970, “Special Message on Indian Affairs” was a landmark admission by the U.S. government: Nixon stated that any and all U.S. policies concerning Indians should serve “to strengthen the Indian sense of autonomy without threatening his sense of community.”

The trust relationship between Indians and the U.S. government was reaffirmed and financial support for tribes guaranteed.

The passage of the 1975 Indian Self-Determination Act was a milestone moment in U.S.-Indian relations, it gave Indians the power to contract with the government on their own, and it also allowed Indians to control how federal moneys were spent on Indian matters. This endorsed a simple, yet profound reality: Local knows best. Native Americans at the community level know best how to spend money in their own communities.

And the Indian Self-Determination Act allowed them to exercise their own discretion, for the benefits of their own people.

Sacred lands

On May 24, 1996, President Bill Clinton signed an executive order titled “Indian Sacred Sites” which ordered the appropriate federal agencies in charge of such “sacred lands” to do two things:

bullet Accommodate access to and ceremonial use of Indian sacred sites by Indian religious practitioners

bullet Avoid adversely affecting the physical integ-rity of such sacred sites

Sounds like a good thing, right? And at first glance, it does seem like an act of respect toward Indians, who do attach sacred import to ancient lands.

But what about the Constitution’s “Establishment Clause?” That part of the First Amendment that reads, “Congress shall make no law respecting an establishment of religion”? An executive order is not technically a law enacted by the Congress, so that skirts that issue.

However, the accommodation of such sites needs only be carried out “to the extent practicable, permitted by law, and not clearly inconsistent with essential agency functions.”

What this basically means is “we’ll let you use lands for religious purposes as long as it doesn’t inconvenience us.”

Major Recent Acts of Congress Concerning Indians

The period of Native American self-determination began in 1968 with the Indian Civil Rights Act which, in a nutshell, guaranteed Bill of Rights protections — freedom of speech, religion, the press, the right of assembly, the right to petition for grievances, due process, equal protection, and so forth — to Indians.

Prior to this act, Native Americans were not legally guaranteed these rights.

Here are some of the other important recent Congressional acts pertaining to Indians.

The Indian Self-Determination and Education Assistance Act (1975)

This act essentially allowed tribes to create, with federal funds, their own schools, over which they had total jurisdiction. This was notable because, for the first time, Native Americans had complete control over their children’s education.

The first schools to take advantage of the act were the Rock Point and Rough Rock schools in Arizona.

The Indian Health Care Improvement Act (1978)

This act provided healthcare for American Indians and Alaska Natives. It was overseen by the Indian Health Service under the auspices of the U.S. Department of Health and Human Services.

This act expired on September 30, 2000, and was extended through 2001. It has not yet been renewed.

The American Indian Religious Freedom Act (1978)

This act resolved certain conflicts between Indian religious beliefs and practices and federal laws that restricted the exercise of Indian beliefs, including the use of sacred lands and artifacts like eagle feathers. (See Chapter 14 for more on the legality of possessing eagle feathers.)

The Indian Child Welfare Act (1978)

This act gave tribal courts jurisdiction over Native American children living on reservations.

The Native American Graves and Repatriation Act (1990)

This act made it a government responsibility to return to culturally affiliated federally recognized tribes human remains, funerary objects, sacred objects, and objects of cultural patrimony that have been found on public lands, during activities that use federal funds, or that have been curated in facilities that receive federal funding.