♪Music♪ Taiawagi Helton: In this lecture, we begin our discussion of some basics in Federal Indian Law beginning with the history of Federal Indian Policy. Now, we have an entire course on this subject, but it's important enough that I think it's worth briefly summarizing here. Congress is the entity crafting both policy and law, therefore law and policy are inseparable. Understanding the history of Federal Indian Policy is crucial to understanding contemporary Indian law. Federal policies regarding Indians have generally wavered between two extremes, on the one hand, separating Indians and non-Indians, generally favoring tribal autonomy, and on the other hand, incorporating and assimilating Indians into the majority society, dominant culture and body politic. Shifting policy is a reflection of historical disagreement over the solution to the Indian problem. Using language of his time my father used to say, the white man doesn't have an Indian problem, the Indian has a white man problem, but be that as it may, the United States has never been able to settle on a long term solution to US-Indian relations. And shifts in Federal Indian Policy reflect societal disagreement and discomfort over the issue. You'll see that there are conflicts of values and identity, life and liberty. This raises issues of consent of the governed versus the doctrine of conquest. Also issues of property, prior ownership versus new power. Finally, freedom of conscience versus forced conversion. What you'll find is a series of distinct but overlapping eras as one policy becomes dominant for a time, slowly replacing the prior predominant policy. The difficulty is that Congress may repudiate prior policy but generally simply passes new statutes rather than repealing older ones. This results in a complex web of often contradictory treaties, cases, and statutes. For each case that we study in this course, take note of the policy era in which the statute being considered arose, and then also consider the policy era during which the court is reviewing that statute. Westward expansion in North America was a political, legal, economic, and religious exercise. There is no doubt that Manifest Destiny was motivated by greed, racism, religious chauvinism. But history is not so simple. Some students have some difficulty accepting this, but I think it's important to note that each policy was supported by both those with ill intent toward Indians as well as those who considered themselves friends of Indians. For example, removal policy had some support among some who saw murder, theft and alcohol by local non-Indians and concluded that the best interest of tribes was to relocate them far west so that they could slowly incorporate their new neighbors and the new technology. Even Allotment and assimilation policy found some support among those who saw profound poverty on reservations and thought pulling tribes into the industrial economy would improve their plight. These were described at the time as the Boston Brahmins. This is no apology for the many acts for which our country ought to account, but it helps explain broad support of policies that seem so terrible in retrospect. Finally, note that whatever the motivation and whatever the prevailing policy, it was always, to use Chief Justice Marshall's words, the will of the conqueror being done. That's not to say though the tribes were passive recipients of federal policy. At all stages, tribes were reacting to shifting pressures, shifting legal landscape under their feet and trying to make the decisions that were best for their families. For example, when the Cherokees were confronted by the state of Georgia trying to assert state law on tribal lands, the Cherokees first went to the president, but President Jackson was unsupportive, then they went to Congress, then they went to the Supreme Court and after they had a victory in the Supreme Court through Worcester v. Georgia they then still lost before the army. But at all points, they were actively engaged in relating with the US. They weren't merely being recipients of federal policy. In the end, we see that tribes are enduring bodies with a geographic base, as opposed to being in decline, being merely temporary or merely to be absorbed. So here's US history in a really small nutshell. First, we have the Colonial Era, running up until 1789, then the early Republican Era, 1789 to 1830, then the Removal Era, 1820 to 1860, followed by the Reservation Era, 1850 to 1887, then, Allotment and Assimilation, 1871 to 1934, the Reorganization Era from roughly 1928 to 1950, the Termination Era from 1945 to 1970, and finally, the Self-Determination Era from roughly 1968 to the present. As I mentioned, these are overlapping periods, so you'll notice that the date when one policy era is noted as beginning overlaps with the end date for a prior policy. The first policy era was the Colonial Era, running up until 1789, when the Constitution replaced the Articles of Confederation. During this period, international law was applied. Tribes were acknowledged as nations, treaties were used for peace and for land acquisition. The British crown exercised centralized control over affairs with Indians after the Proclamation of 1763. That proclamation was a response to the French and Indian War or the Seven Years' War that was taking place at the time. It struck a boundary between the colonists in the east along the thread line of the Alleghanian Appalachian Mountains and Indians to the west. It created a border that said any non-Indians who went west of that line would forfeit the King's protection and lose the King's peace. This was because, in order to keep peace, the King had to stop conflicts between local colonists on the border and Indians who lived there, either because of land, because of alcohol based conflicts or race based conflicts. Enforcement of that border was expensive. It required a line of forts to be built in order to maintain that line and troops had to man those forts. The King decided that because the colonists created the need for the forts, the colonists benefitted from them, that the colonists ought to pay for them, so the crown taxed the colonists, including using things like the Stamp Act, which taxed tea. One tea party later and we have a revolution. That brings us to the early Republican Era which runs from around 1789 to 1830. The Articles of Confederation failed in large part because of a conflict between individual states and the national government over western lands. These are Indian lands that include the Northwest Territory. This conflict arose because of an ambiguity in the Articles of Confederation and individual states took advantage of that ambiguity and they each had competing land claims, often, amongst themselves to the same lands. So the Constitution was passed and it did exactly what King George the Third did. It took centralized, national control over Indian affairs in the Indian Commerce Clause. One of the first acts of the first Congress was to pass the Indian Trade and Non-Intercourse Act of 1790 which did two things: it made it a crime for anyone to purport to take title to Indian lands or to negotiate for title to Indian lands without the permission of the federal government and it regulated trade between natives and non-natives. So again, we see a consolidation of federal power which was taking place in other parts of government at this time and centralized national control over relations between Indians and non-Indians, at that time described as affairs with Indians. During this time period, we also see Johnson v. M'Intosh, the 1823 case that is the first of the Marshall Trilogy. In this case, we see Chief Justice Marshall's merger of discovery and conquest, saying that they necessarily diminished the tribe's ability to sell its land to whomever they choose. Also in this case, Chief Justice Marshall creates a new form of property, aboriginal Title or Indian Title, a right of occupancy as he describes it. The next period is the Removal Era which runs from around 1820 to 1860. It's named after the Indian Removal Act of 1830, a statute intended to remove eastern tribes into the Indian Territory in central North America, starting in western Arkansas and then including what is now Oklahoma. The Removal Era was based on the idea that natives and non-natives could not live peacefully next to one another, and that the only solution was to move tribal nations west. The idea originally was suggested by Thomas Jefferson and one of the arrangements that were made were that states like Georgia gave up their western land claims in exchange for a federal promise to remove the Indians. That promise didn't begin to be fulfilled until the second round of removal treaties. The first series was 1817 to 1825 or so. They were more fully implemented in the 1830's through among other things, what is known as the Trail of Tears. During the Removal Era, we also see the remaining two cases from the Marshall Trilogy, Cherokee Nation v. Georgia, 1831, where Chief Justice Marshall creates a new form of sovereign, the domestic dependent nation, based on the uniqueness of the American experience with native people. In 1832, a year later, we see Worcester v. Georgia, where the court holds that tribal and federal sovereignty preclude the application of Georgia law in Indian Country. And then of course, we see the Trail of Tears, that is, the forced removal of tribes including the Five Civilized Tribes, Cherokees, Choctaws, Seminoles, Chickasaws and Creeks, from their tribal territories into Oklahoma, particularly, eastern Oklahoma. After the Removal Era, we move into the Reservation Era, running from roughly 1850 to 1887. The idea behind removal was that the United States would slowly move westward and incorporate or surround the Indian Territory but the gold rush in California in 1849 made removal untenable. People leapfrogged across the continent too quickly in order for removal to have met its goals. This is an era of transition. We see that, in the Indian context, that Indian law or Indian relations move from being treated like foreign relations to being treated like domestic relations. In 1849 to 1850, the Commission on Indian Affairs was moved from the Department of War to the Department of the Interior and in 1871, there was an end of treaty making, although statutory agreements that looked like treaties continued to be implemented. We also see during this era the increase in establishment of federal power in the national crisis of the Civil War and if you're a student of history, you'll know that the Civil War was a civil war for the five tribes as well. We also see a transition starting with the Industrial Revolution that's really triggered in 1877 or so and that's followed by a population explosion and a migration from rural areas into urban areas and so we see this is an era of societal change that doesn't only include US-Indian relations. In 1885, a significant statute known as the Major Crimes Act is passed. It is the first intrusion into the internal affairs of Indians. In it, Congress claimed that it had authority over major crimes. There are now about 14 major crimes listed. At the time, it roughly covered the seven common law felonies. That statute was reviewed by the Supreme Court for constitutionality a year later in 1886, in the case United States v. Kagama. In that case, the Court said that congressional plenary power over Indian affairs is extraconstitutional, that is, it is not found in the text of the Constitution but the Court said that that power over Indians must exist somewhere. It can't exist in the states because local citizens in the states were often the tribes' deadliest enemies, so it must reside with the federal government and because of the Commerce Clause, the branch of the federal government that wields that power is Congress. The Court said that although the text of the Constitution doesn't support that power, not the war power, not the treaty power, not the taxation power, it arises of the status of dependency and the trust duties that Congress has toward native people, that is, the trust doctrine amounts to trust power. It is a power-conferring doctrine, giving power to Congress rather than limiting congressional power. In a case that follows Kagama but is actually in the Allotment and Assimilation Era, we see plenary power is not only not found in the Constitution but it is unlimited, virtually. That case is Lone Wolf v. Hitchcock described by at least one federal judge as the Indians' Dred Scott case. There, the court said that congressional plenary power over Indian affairs is not limited by the language and the treaty, by judicial review, by the trust responsibility or by tribal consent. So we see the beginning of the Allotment and Assimilation Era or the middle period of it as the height of federal power over Indians. During this time period, we also see the creation of the Courts of Indian Offenses. Our next era is the Allotment and Assimilation Era running from roughly 1871 to 1934. 1871 is the end of treatymaking, 1934 is the passage of the Indian Reorganization Act. This is an era in which we see a shift from reservation as separation to reservation as captive audience for assimilation. The shift from using reservations to separate Indians from non-Indians to using reservations as a tool for assimilation was pushed by Indian agents who had a great deal of authority on a given Indian reservation. We also see during this time period the creation of Indian schools that were often religious and then a shift to boarding schools where native children were educated outside their cultural context and were prohibited generally from practicing their own religion, their culture or using their own language. The goal of the Allotment and Assimilation Era was explicitly religious and economic. The goal was to turn Indians into Christian yeoman farmers and to teach them agricultural and industrial arts. Another goal of Allotment and Assimilation was to teach Indians the value of private property. This is exemplified in the General Allotment Act of 1887. That framework statute was intended to take the millions of acres of tribal communally owned land, and to allot parcels of land to individuals for them to farm individually. Each tribal family selected an allotment, generally 160 acres, and that allotment would be held, legal title would be held by the federal government in trust for the allottee for a period of 25 years. Whatever land was left over after all the allotments had been partitioned was deemed surplus land and open to white settlement. During this time period it was assumed that at the close of the 25 year period, the trust period would end or the trust status would end and the land would be treated as private property for the individual, though that process we'll see was interrupted. There's a question about how effective Allotment and Assimilation was in its goal of allotting or assimilating tribal people but there's no question that it was successful at taking Indian land. The tribal land base dropped from 138 million acres to 48 million acres by 1934 and it also resulted in a checkerboard land ownership with Indian and non-Indian parcels mixed together. President Theodore Roosevelt described the General Allotment Act as a mighty pulverizing engine to destroy the tribal mass. In 1928, Congress received a study known as the Meriam Report. It was the conclusion of a two year commission study examining the consequences of allotment. Without a doubt, the Meriam report declared that allotment was a failure, that it had spread poverty, it had not empowered natives, it had not successfully assimilated and it had only done harm. In response to that, Congress repudiated the policies of Allotment and Assimilation and passed the Indian Reorganization Act of 1934. This was part of the New Deal pushed by President Franklin Delano Roosevelt. The IRA did a number of things. First, it formally ended allotment, so that if there were any trusts for whom the 25 year period had not yet expired, that trust period was extended indefinitely. Keep in mind, 1887 is well more than 25 years from 1934 but remember that the General Allotment Act was a framework statute. It was implemented on a statute by statute basis on different reservations. So, some of those statutes weren't passed until well after the General Allotment Act was passed. In addition to extending existing trusts that weren't expired indefinitely, the statute was also aimed at revitalizing tribalism and it offered tribes an option for constitutional governance. It also allowed the Department of the Interior to reacquire land and to create new reservations. But the Reorganization Era did not last long. It was replaced by the Termination Era in 1945 which runs until roughly 1970. We see in the Termination Era that the melting pot theory rises again and we see the dominant policy reflecting the idea that tribes are temporary. We had the goal as a nation of eliminating race based institutions after World War II to distinguish ourselves from the Axis powers during that conflict. The Termination Era is named after the termination statutes which ended the government to government relationships between over a hundred tribes and the United States. Some of those tribes later regained that relationship, through a recognition statute or a re-recognition statute. Also notable during this time period is Public Law 280, a 1953 statute that delegated limited jurisdiction from the federal government to six states. We also see the 1946 Indian Claims Commission Act. It was intended to adjudicate old claims and to quiet title to Indian lands. But the Termination Era ultimately backfired. It had the effect of energizing the Indian rights movement when so many native children who were either adopted out or who were moved to big cities as part of a relocation program returned to their tribes once they became young adults in order to reconnect to their tribal communities, so termination actually ended up having the effect of energizing the Indian rights movement and even contributing to the Red Power movement. Finally, we enter the Self-Determination Era starting roughly with 1968 and moving to the present. Every president since Richard Nixon has expressed support in one way or another for this policy describing it either as Nixon did, self-determination without termination or as President Reagan did, supporting government to government relations between tribal nations and The United States. More recently it's been described as a policy of self-government and economic self-sufficiency. Numerous statutes have been passed by Congress, also supporting tribal sovereignty and economic self-sufficiency, including statutes that expand tribal responsibilities to operate federal programs and expanding criminal jurisdiction over Indians and non-Indians alike. In our next lecture, we will discuss the Marshall Trilogy and the federal role in Indian Country. ♪Music♪