NATIVE AMERICAN POLICY

Federal Native American policy is considered by many to be an aberration in the U.S. legal system. By the 1990s more than two percent of U.S. lands were actually governed by Native American tribal governments. In the seventeenth century British and Spanish colonies began negotiating treaties with the New World's indigenous groups as sovereign (independent) political entities. The treaties served to acknowledge and affirm Native American ownership of lands used and occupied. The United States, as a successor of Great Britain, inherited this centuries–old European international policy. Thus, tribal sovereignty, recognized well before birth of the United States, became the basis for future U.S.–Native American relations.

With victory complete over Britain in the American Revolution (1775–1783), establishment of Native American policy was one of the first orders of business of the new fledgling government. A formative period of U.S. Indian policy lasted until 1871. The 1787 Northwest Ordinance, enacted by Congress, recognized existing Indian possession of the newly gained lands and established that only the federal government could negotiate treaties with tribes and acquire Indian lands. Sovereignty of tribes was explicitly recognized in the U.S. Constitution and authority for the federal government's legal relationship with tribes was identified in the Commerce Clause. One of the first acts passed by the first U.S. Congress was the Indian Trade and Intercourse Act of 1790 which reaffirmed the treaty policy and brought all interactions between Indians and non-Indians under federal control.

Three Supreme Court decisions between 1823 and 1832, known as the Marshall Trilogy, reasserted the tribal right of land possession and tribal sovereignty (meaning no state held legal jurisdiction within Indian reservation boundaries) and defined a moral trust responsibility of the United States toward the tribes. This trust relationship recognized tribes as "domestic dependent nations" yet held the Unites States responsible for their health and welfare. Later deliberation of Indian policy by the Court produced a reserved rights doctrine which recognized inherent tribal rights, but the Court also allocated "plenary" power to the United States. Plenary power meant that the United States held ultimate authority to unilaterally alter U.S.–Native American policy and terminate specific Indian rights. However, the trust relationship compelled a reasoned exercise of this power, to be used only to benefit Indian peoples. For resolving disputes over treaty interpretation, the "canons of construction" established that treaties should only be interpreted from the tribal perspective and, if ambiguous, judicial rulings should be in favor of the tribes.

Despite a seemingly favorable attitude on the part of the judiciary, in actuality Indian peoples suffered catastrophic loss of economies, lands, and life in the persistent push of white settlements westward. The most grievous example was the 1830s removal policy under which the Five Civilized Tribes were forcibly removed from the Southeast to the newly created Indian Territory in what later became Oklahoma. The removal policy persisted with treaty-making in the West in the 1850s and 1860s. The western treaties created a reservation system in which the inherent rights of Native Americans would presumably persist. However, these treaties underscored the long standing tension between trust, responsibility, and a stronger force promoting white settlement and economic development. Some treaties also recognized aboriginal hunting, fishing, and gathering rights outside reservation boundaries to help perpetuate traditional economies. The treaties also implicitly established a unique system of water rights later recognized by federal courts. In 1871 Congress acted to end the treaty-making era, thus closing a chapter on the use of treaties to define U.S.-Indian relations.

An era of forced cultural assimilation followed from 1871 to 1930 in which U.S. Indian policy attempted to blend Native Americans into the dominant society. Believing the tradition of communally held property was a major barrier to Indian assimilation, Congress passed the General Allotment Act of 1887. The act authorized the Bureau of Indian Affairs (BIA) to divide up all Indian lands, allotting parcels of 160 acres to families and 80 acres to single individuals over 18 years of age. Individuals receiving the allotments became U.S. citizens. The hope was that when Indian people held their own property they would become farmers embracing an agrarian lifestyle. Tribal lands left over after the allotment process were considered "surplus" and sold to non-Indians. Much land went into forfeiture when many Indians could not pay taxes on their properties. In all, the policy was a further economic disaster reducing the tribal land base in the United States from 138 million acres in 1887 to 48 million acres in 1934. Much of the most agriculturally productive lands passed out of tribal control. In another assimilationist effort, all Indians became U.S. citizens through the Indian Citizenship Act of 1924, but the Bill of Rights did not apply to Indians because of tribal sovereignty.

By the 1930s, realizing the calamity of the allotment policy, U.S. policy swung back again to the recognition of sovereignty. The Indian Reorganization Act of 1934 ended the allotment process, stabilized tribal holdings, and promoted tribal self–government by encouraging tribes to adopt Western-style constitutions and form federally chartered corporations. Though many tribes rejected developing constitutions, they did organize various governmental institutions during this period.

By 1953 U.S. policy began a significant move back to assimilation with termination policies. Through a House resolution, Congress voted to terminate recognition of a select group of tribes, ending the special trust relationship. Some reservations were terminated and the lands sold to non-Indians, thus taking away the economic base for the Indian communities. In addition, Public Law 280, also passed in 1953, expanded state jurisdiction onto tribal lands in selected states, diminishing tribal sovereignty in those areas.

With little sustained congressional support for termination policies, in the 1970s U.S. policy again took a dramatic shift back to a tribal government, self-determination era. The Indian Civil Rights Act of 1968 extended most of the Bill of Rights to Indian peoples and pared back some of the states' authorities granted in P.L. 280. Most importantly, the Indian Self-Determination and Education Assistance Act of 1975 encouraged tribes to assume administrative responsibility for federal programs benefiting Indian peoples, many of which were in health and education. Congress continued to pass acts empowering tribes including the American Indian Religious Freedom Act (1978), Indian Mineral Development Act (1982), Indian Gaming Regulatory Act (1988), and Native American Graves Protection and Repatriation Act (1990). Tribes could form their own governments, determine tribal membership, regulate individual property, manage natural resources, develop gaming businesses, collect taxes, maintain law enforcement, and regulate commerce on tribal lands.

Tracing the history of U.S.–Indian relations reveals that Native American policy is not actually a coherent body of principles, but an aggregate of policies derived from many sources over time. For more than 200 years, U.S.-Indian policy vacillated between periods of supporting tribal self-government and economic self-sufficiency and periods of forced Indian socio-economic assimilation into the dominant Western culture.

NATIVE AMERICAN POLICY

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