Federal Indian policy evolved through several periods, but the two most important historical eras were
At the time of European contact with the North American continent, all Indian nations exercised the powers of sovereigns by forming treaties, trade agreements, and military alliances with other Indian nations. In recognizing such sovereignty, each Indian nation consisted of a unique group of people who had a distinct language and a distinct moral, cultural, and religious structure; controlled and regulated a specific geographical area; and possessed governmental powers acknowledged by the tribal people and enforceable by some sort of tribal authority.
After British colonial settlement, many sovereign Indian nations negotiated similar agreements with new sovereign partners - the colonial administrations of Britain and its colonies. By signing such treaties, both the colonists and the Indian nations recognized each other's sovereignty: the Indian nations recognized the colonial governments as sovereign nations, while the colonial governments also acknowledged the sovereignty of the Indian nations.
Colonial and British governmental actions, however, indicated that they did not fully accept Indian sovereignty. In fact, various colonial governments enacted four types of policies in their dealings with American Indians, each of which began to diminish the sovereignty of Indian nations:
Individual colonists and colonial governments continually ignored informal agreements and formal treaties with Indian nations and engaged in warfare when they felt it was both just and necessary. At the same time, the British Crown began reinterpreting the nature of tribal sovereignty. As individual colonists continually encroached upon Indian lands, the British Crown assumed a protectorate position - arguing that the Crown must protect the tribes against excesses and injustice at the hands of British colonists. At the same time, the British sought to protect their colonies from the influence of two other European nations with settlements in North America: French colonists living in the French interior who had secured the loyalty of many frontier tribes, and Spanish colonists living in Florida and the Southwest.
It was the fear of French alliances with the Indian people on the frontier that led to British recruitment of Indian allies during the French and Indian War. At the War's end, the British adopted the first formal policy directed at protecting the Indians: the Proclamation of 1763 (shown in red on the map below) which established a western boundary along the crest of the Appalachian Mountains across which the British colonists could not settle. As such, it provided a boundary that distinguished "Indian Country" from non-Indian country. It was, in fact, the first formal designation in North America of a distinct Indian Country set aside for Indian people.
The King had good reason to enact the Proclamation. Many colonists were not only eager to move westward beyond the Appalachians into Indian Country, they were also quick to claim that the Indians were in the way of such progress. Indeed, many colonists believed Indians to be an impediment to white progress, humanity, and most importantly, to Christianity. Indeed, such intolerance was deeply rooted in their commitment to Christian superiority - the belief that Christian Europeans were superior to non-Christian, non-European peoples.
Such beliefs were buttressed by the authority of the Catholic Church through a series of Papal Bulls or decrees, the most important of which went into effect after Columbus returned to Europe. In 1493, Pope Alexander VI issued the Inter Caetera granting Spain the right to conquer the lands Columbus had already "discovered" as well as any that might be "discovered" in the future. Thus, by the end of the 15th Century, what came to be known as the Doctrine of Discovery - the belief that white, Catholic Europeans had the right to discover and thereafter own the land whille the natives retained only the right to occupy it - was a well-established idea in the Christian world. Just how well the European colonists understood its significance is illustrated in the words of Diedrich Knickerbocker who in 1809 published A History of New York:
“But lest any scruples of conscience should remain on this head, and to settle the question of right forever, his holiness Pope Alexander VI, issued one of those mighty bulls, which bear down reason, argument and every thing before them; by which he generously granted the newly discovered quarter of the globe to the Spaniards and Portuguese ... Thus were the European worthies who first discovered America, clearly entitled to the soil; and not only entitled to the soil, but likewise to the eternal thanks of these infidel savages, for having come so far, endured so many perils by sea and land, and taken such unwearied pains, for no other purpose under heaven but to improve their forlorn, uncivilized and heathenish condition--for having made them acquainted with the comforts of life, such as gin, rum, brandy, and the small-pox; for having introduced among them the light of religion, and finally--for having hurried them out of the world, to enjoy its reward! “
A Summary of Colonial Indian Polices
After the colonists won independence from England, the newly-created United States government immediately claimed ownership of all Indian lands west of the Appalachians - land that had been designated as Indian Country (shown in red on the map below) by the King's Proclamation Line of 1763. Americans justified taking this land because the Indians who had fought with the French during the French and Indian War had lost the war, and subsequently, also lost their land.
Within seven years after the end of the Revolutionary War, the new American government created three distinct policies that determine how the Americans would deal with Indians in what had since 1763 been known as Indian Country: the Northwest Ordinance of 1787, the Commerce Clause of the U.S. Constitution, and the Indian Trade and Intercourse Act of 1890.
These federal actions indicated that the U.S. government should and would act in good faith in its negotiations with sovereign Indian nations. However, Indian sovereignty soon became a problem for the growing United States. While Euro-Americans wanted to move westward and conquer the land to the Pacific Ocean, it was clear that the hundreds of sovereign Indian nations living on the North American continent were not going to willingly or voluntarily give up their land. Consequently, the United States government took two steps:
Treaties were legal, government-to-government agreements between two legitimate governments - the United States and an Indian nation. When an Indian nation signed a treaty, it agreed to give the federal government some or all of its land as well as some or all of its sovereign powers. In return, the federal government entered into a trust responsibility with the Indian Nation in which the federal government promised to provide protection, benefits, and rights to the American Indian peoples in exchange for some or all of their land. The trust responsibility bound the United States to represent the best interests of the tribe, protect the safety and well-being of tribal members, and fulfill its treaty obligations and commitments.
The history of the Delaware Nation (Lenape) provides a clear understanding of how a series of treaties with the U.S. government affected their land and their people. As this map indicates, the Delaware were pushed out of their traditional homeland in Pennyslvania as early as 1682 and by 1750, were mostly settled in Ohio. They lost a huge amount of land with the signing of the Greenville Treaty of 1795 in which all of the Indians of the Ohio Valley gave up nearly 2/3 of their land holdings and were forced to move, first to Indiana and then to Missouri. The 1818 Treaty of St. Mary ceded the remaining Delaware land in Ohio. By 1840, most but not all of the Delaware had left their Ohio homeland. By 1872, most remaining Delaware people had moved to Oklahoma which was designated as Indian Country (see the series of maps below).
Treaties were not the only legal entities that defined the federal relationship with Indian Nations. As early as 1823, the US Supreme Court also assumed that role. In what is known as the Marshall Trilogy, the Supreme Court established the doctrinal basis for interpreting federal Indian law and defining tribal sovereignty through the following three landmark cases:
Thus, beginning with Johnson v. McIntosh, the Supreme Court produced two competing theories of tribal sovereignty:
Over the years, the Court has relied on one or the other of these theories in deciding tribal sovereignty cases. Whichever theory the Court favored in a given case largely determined the powers the tribe had and what protections they received against federal and state government encroachment.
The Marshall Trilogy cases bolstered the federal land-taking powers of the 371 treaties that were ratified by the U.S. until 1868. Indians were relegated to a kind of limited sovereignty that was to be governed by paternalistic trust and subject to the interpretation of the US government and its courts. By 1871, that paternalistic trust was clearly-articulated by Congress when it decided to end all government-to-government treaties with Indian nations. No longer would Indians have any negotiating power or say about their treatment at the hands of the US government. Thereafter, such determinations would be made as Congress passed various federal policies and laws.
Federal Policies and Laws
In addition to the federal policies and laws discussed below, the legal and geographical nature of Indian Country changed dramatically in the Nineteenth Century. As the maps indicate, Indian people saw their lands greatly diminished between 1763 and 1889:
Indian Country, however, was not just a geographical designation; it would also become the place where government agents, missionaries, and other white people operating under federal supervision, would "civilize" Indians and prepare them for inclusion into the U.S. polity.
While Eastern and Plains Indian nations were greatly effected by the loss of their ancestral homelands, nations on the West Coast also suffered great losses. Beginning in 1841, continuing in 1864, and ending in 1880, Oregon Indian Nations lost the vast majority of their territory.
California Indian Nations suffered a similar fate beginning with the 1848 discovery of gold, continuing with the 1850s negotiations of eighteen treaties in Northern California that were never ratified by the U.S. government, and ending as the Nineteenth Century came to a close. As the maps below indicate, before contact, California Indian Nations lived throughout the state. As can be seen in the current map of California, a significant number of Indian Nations still exist, but their reservations are located on a very insignificant percentage of California land.
The loss of Indian Country was just one of several legal ways that Indian sovereignty was diminished during the 19th Century. As Euro-Americans moved westward, they began to demand access to more territory - the vast majority of which was occupied by American Indians. Thus, from 1930 throughout the remainder of the Nineteenth Century, the federal government responded with four specific policies that aimed to open up Indian land to white settlement: removal, reservations, allotment and assimilation, and elimination. The federal implementation of each policy further eroded Indian sovereigny.
By the early 1830s, about 80,000 members of the Cherokee, Creek, Chickasaw, Choctaw,and Seminole Nations lived on land that many Americans felt could be more profitably farmed and settled by non-Indians. But all five nations had signed treaties with the federal government guaranteeing the right to live in their ancestral lands and maintain their sovereign systems of tribal government. Not surprisingly, these nations were unwilling to give up their land and to negotiate new treaties with the federal government that would give away any of their territory.
President Andrew Jackson decided that a new federal policy would be necessary in order to remove the Indians from their lands. Thus, he supported the Removal Act of 1830 which gave the President the right to make land "exchanges" by forcibly removing the five tribes from their ancestral lands against their will. The Removal Act was bolstered by the 1834 Indian Intercourse Act which moved Indian Country (see above maps) westward across the Mississippi and was set aside for all Indians who were removed. Consequently, over the next several decades, more than 40 tribes were removed to Indian Country - the area that now comprises the state of Oklahoma.
From 1830 to 1840, between 70,000 and 100,000 American Indians living in the East were forcibly resettled by the US Army. Many others were massacred before they could be persuaded to leave; an unknown number died from disease, exposure, and starvation suffered during the Trail of Tears as well as on other enforced, long-distance marches westward to Indian Territory.
While the removal policy helped to alleviate the immediate "Indian problem," as more and more Americans continued to move westward, they found other Indian tribes living in freedom throughout the continent. Because these Indians prevented non-Indians from settling in many desirable areas, and because many white settlers did not feel safe living amidst the Indian "danger," another new policy was created to deal with the Indians - they would be confined to a land reserved exclusively for their own use - areas that came to be called reservations.
The men who created the reservation system believed that if Indians could be confined to one particular geographical place reserved for them, they could become 'civilized" and assimilated into American life. They could be encouraged to stop being Indians and to become like white men. Thus, the reservations were to make sure the remaining tribes were converted to Christianity; taught English, sewing, and small-scale farming; and ultimately, to be Americanized.
Although treaties were the primary method for creating reservations, Congress suspended formal treaty making in 1871. Thereafter, executive order, congressional acts, or any legal combination recognized by the federal government were used to establish federal reservations. By the end of the 19th Century, 56 of 162 federal reservations had been established by executive order. After 1919, only an act of Congress could establish reservations.
While some Indians adjusted to life on the reservation, the vast majority did not become more like the white man. Indeed, most fought to maintain their Indian culture and traditions. While the reservation system continued to grow and resulted in the loss of even more territory (as seen at the right in the map of Indian Reservations in the 20th Century), it was clear that all Indians were not going to be confined to reservations and that the vast majority were not going to become Americanized. Thus, arsse the necesssity for another new federal policy - allotment.
Many Americans had come to believe that Indians would never become Americanized as long as they lived in large reservation communities in which they celebrated their cultural and spiritual traditions and owned land communally. Further, American policy makers believed that the reservation did not give the Indian an incentive to improve his or her situation. So, the federal government's new policy was designed to detribalize the Indian by destroying the idea of communal land ownership on the reservations. This policy was signed into law as the Dawes Severalty Act of 1887.
The Dawes Act allowed the President to give, or allot, portions of certain reservation land to individual Indians - 160 acres to each head of family and 80 acres to others - to establish private farms, and authorized the Secretary of Interior to negotiate with the tribes for purchasing "excess" lands for non-Indian settlement. Each head of family would receive final title to the land and American citizenship after a 25-year period during which they had willingly assumed responsibility for the land. Any land remaining after allotment would be sold to whites; all proceeds were to be used to "civilize" Indians on the reservation.
At the same time that the Dawes Act was being conceptualized, American policy makers were also experimenting with a new assimilation policy. Some reasoned that for Indians to really become assimilated, Indian children would have to be taken from their tribal environment and reeducated. Thus it was that in 1879, a former Indian fighter, Colonel Richard Pratt, created the first large Indian boarding school in the nation - the Carlisle Indian Industrial School in Pennsylvania - dedicated to totally Americanize Indian children.
Within a few years, federal authorities forced Indian parents to either send their children to an off-reservation boarding school such as Carlisle, or to boarding schools established in remote areas of Indian reservations. The boarding school had become the primary tool of assimilationists.
And what awaited the Indian children upon their arrival? We know from many first-hand accounts that the teachers spent the first few days forcing the children to discard their Indian ways and adopt American ways. For example:
Once the rules were clear, then children became involved in the daily routine which was defined by military drill and structure. Children attended school one half of each day, and the other half was spent in training for several skills - mechanics, printing, and agriculture.
To the non-Indian population, boarding schools were the epitomy of progress. An 1882 article in Harper's Weekly extolled the virtues of the the Forest Grove School near Portland, Oregon, run by Captain M.C. Wilkenson:
"In the training school at Forest Grove one hundred young Indians between the ages of five and twenty are kept, well fed, well clothed, and happy, and, as far as can be judged from appearances, quite as intelligent as a similar number of white youths. They came to the school from the prairies and the mountains, dressed in blankets and moccasins, with uncut and unkempt hair, as wild as young coyotes. They have already learned to sing like nightingales and work like beavers. It is remarkable that these young children of the forest are perfectly amenable to discipline, and never break a rule. The boys learn how to make boots and shoes, build houses, shoe horses, and how to perform various operations of agriculture. The girls learn to sew, darn, wash, cook, churn, iron, wash dishes, and keep their rooms in order ... They attend religious meetings and lectures, and sing and pray. The singing, indeed, is of remarkable excellence ... We agree with Captain Wilkenson that this is the best solution of the difficulty which confronts us in our dealings with the Indians ... let us then take the rising generation away from the evil influences which have surrounded their progenitors, and train them up to be useful and orderly members of society."
The story told by Zitkala-sa told another story. In "The School Days of An Indian Girl" originally published in 1900 in The Atlantic Monthly, Zitkala-sa recounts how she felt after four years in boarding school: "During this time I seemed to hang in the heart of chaos, beyond the touch or voice of human aid. My brother, being almost ten years my senior, did not quite understand my feelings. My mother had never gone inside of a schoolhouse, and so she was not capable of comforting her daughter who could read and write. Even nature seemed to have no place for me. I was neither a wee girl nor a tall one; neither a wild Indian nor a tame one." In shedding their "Indianness" during the boarding school experience, Indian children learned theywere neither accepted into American society, nor were they able to comfortably resettle into traditional Indian society.
The results of the boarding schools policy and the Dawes Act were catastrophic for American Indians:
Ultimately, allotment and assimilation policies failed to assimilate Indians and force them to accept a more settled, Americanized way of life. Toward the end of the nineteenth century, a large number of Indians and several Indian nations still lived in communal groups that refused to live on reservations or to be involved in allotment. Thus, the federal government moved ahead with another policy to deal with these recalcitrants - elimination.
The rationale for eliminating Indians grew out of a belief that Indian resistance was equivalent to a declaration of war against the US. Using such a rationale, in the late 1800s the US Army declared war upon several tribes, began eliminating resisters, and sought to absolutely subjugate any survivors. But war was hardly a last resort nor was it something used only at the end of the nineteenth century. A review of official miliary records, some of which are incomplete, shows that from 1776 to 1907, the US Army was involved in 1,470 official actions against Indians. These figures do not include actions against the Indians undertaken by either the US Navy - of which there were probably dozens - or the hundreds of hostile actions undertaken by private armies against American Indians.
The vast majority of military Indian fighting under the auspices of the US government did occur between 1866 and 1891. According to official records for this 25-year period, the Army was involved in 1,065 combat engagements with Indians. In total, 948 soldiers were killed and another 1,058 wounded, as well as 4,371 Indians who were killed and another 1,279 who were wounded.
The war waged against the Sioux provides a tragic example of such a military encounter. In the late eighteenth century, white men first appeared in Sioux territory - in the area known as the Black Hills, an isolated ridge, roughly 40 by 120 miles, of pine-dark peaks that rise from the dry plains at the border areas of present-day Wyoming and South Dakota. In 1851, the federal government and the Sioux entered into a treaty whereby the US promised not to encroach upon Sioux territory and, in return, the Sioux promised to provide all pioneers with safe passage through their land. Shortly thereafter, in defiance of the treaty, the government erected several fortified trading posts in Sioux territory. During formal negotiations in 1866, the leader of the largest, most powerful band of the Sioux, Red Cloud of the Oglala Nation, walked out of the meeting declaring, "I will go - now! - and I will fight you! As long as I live I will fight you for the last hunting grounds of my people." After two years of war, the forts were abandoned to allow a US peace commission to meet with Red Cloud. On Nov. 6, 1868, the Fort Laramie Treaty was signed guaranteeing the Sioux,
"... absolute and undisturbed use of the Great Sioux Reservation...No persons...shall ever be permitted to pass over, settle upon, or reside in territory described in this article, or without consent of the Indians...No treaty for the cession of any portion or part of the reservation herein described...shall be of any validity or force...unless executed and signed by at least three-fourth of all adult male Indians, occupying or interested in the same."
Within a few years, thousands of miners began to pass through the Black Hills without the Indians' consent. The new settlers, as well as many other Americans, demanded that the Black Hills be bought from the Indians, with or without their consent. The Sioux, however, refused any attempts to purchase their land. Thus, in direct contravention of the Fort Laramie Treaty, in June 1876, President Grant sent troops into the Great Sioux Reservation in which over 20,000 men, women, and children lived. In the Battle of Little Bighorn, the Seventh Cavalry led by General George Armstrong Custer, attacked a Sioux camp on the Little Bighorn River. Subsequently, Custer and all of his men were killed
Two weeks later, the US government declared that, due to the Indians' warlike behavior, the Fort Laramie Treaty was invalid and the Sioux were expected to relinquish all claim to the Black Hills. They were then rounded up and confined to army forts where their ponies and rifles were confiscated. In September, the Sioux were presented with a document giving the US all of the Black Hills and 22.8 million acres of surrounding territory, granting rights-of-way across what was left of the Great Sioux Reservation, and ending all hunting rights outside the reservation. If the documents were not signed immediately, federal officers told Red Cloud and the other Sioux chiefs, food and other essential supplies would be delayed indefinitely. Perceiving they had no other choice, they signed.
In 1889, the Sioux people were again approached by the US government with a proposal to turn over 9 million acres of their remaining land. They refused. President Benjamin Harrison then passed an act dismantling the Great Sioux Reservation and creating the seven reservations that exist today. The Oglala received the dry rolling hill country which is now known as Pine Ridge Reservation consisting of approximately 2,722,000 acres. The remainder of Sioux land was turned over to the newly created states of North and South Dakota.
In November 1890, a large contingent of infantry and cavalry arrived at and occupied the Pine Ridge Reservation with orders to quell the "hostile," traditional Sioux who increasingly were involved in the Ghost Dance, a spiritual ritual that gave the Indians hope that their traditional culture and lifestyles could survive. To the US Army, however, the dance symbolized resistance and the possibility of an Indian rebellion.
On December 29, 1890, Chief Big Foot met four cavalry units under orders to capture him. After the Sioux raised a white flag to signal their promise not to fight, they were taken to an army camp at Wounded Knee Creek and ordered to give up their weapons. A medicine man started the Ghost Dance, urging his tribesmen to join him by chanting in Sioux, "The bullets will not go toward you." When one young Indian refused to give up his rifle, confusion ensued during which several braves pulled rifles from their blankets, and the soldiers opened fire. At least 150 Indian men, women, and children died; as many as 300 may have perished after the wounded died.
The Battle at Wounded Knee was one of the concluding events that marked over 100 years of American Indian policy. By the turn of the century, this first era had drawn to a close. The consequences had been disastrous for American Indians:
Despite over 100 years of such destructive federal Indian policies - policies that many have called genocidal - the cultural and spiritual heritage of of many Indian nations survived. Indeed, by the end of the 19th Century, American Indians across the nation refused to be assimilated and victimized by their historical experiences with the federal government. With the progression of the twentieth century, this survival mode helped to revitalize many Indian nations as they continued their resistance to becoming assimilated and to celebrating their spiritual, cultural, lingual, and political traditions.
A Summary of Nineteenth Century Federal Indian Polices
The following points provide a brief summarization of this first period of federal Indian policy: