- Congress, executive, and judicial decisions expressed government attitude towards the Plains Indians
- Government policies led to the loss of over 100 million acres of land between 1887 and 1934
Government policies as expressing Intent
The United States as a country was rapidly expanding westwards by the 1800s, because of a population boom and acquisition of new states into its territory. However, the Plains Indians had already occupied the land in the west.
The way of the Plains Indians, language, culture and religion was entirely different from those of the European settlers in the states. The Natives were non-conforming and put up an over thirty-year resistance from 1855 – 1890 against the settlers and government wanted to take over their land. They asserted their sovereignty as a tribe and as natives of the area, they occupied. The Plains Indians prospered in their nomadic lifestyle, hunting buffalos as the primary source of their livelihoods for food, shelter, and clothing. The federal government approach towards the Plains Indians has been as though the former is a problem that requires solving and not like the sovereign nation with dignity and rights as the natives saw themselves.
The attitude of the early government towards the natives was expressed through policies developed by the government. Policies are an embodiment of government intentions. They are either distributive or redistributive, like tax laws, or regulation which may compel a particular behavior from the citizens. If they are to be effective, the government and its agencies must identify the right problem. The term policies include a wide range of government actions from laws by the state and federal government, to administrative decisions outlined by the executive arms of government at the state and federal government level. The judiciary is responsible for interpreting laws especially the bill of rights and therefore, judicial decisions shape policies development or implementation. What follows next is a timeline of policies, including judicial decisions about the Plains Indians, the intentions behind them, an overview of the provisions outlined in the specific policies and their outcomes.
The Trade and Intercourse Acts (1790 – 1834)
The Trade and Intercourse Acts were laws developed for the protection of Indians. They provided that white settlers were not allowed to trade with the natives without the regulation of the federal government. Further, the Acts reduced the sovereignty of the natives by providing that the tribes were only required to enforce their laws to their people and not territories. Seeing the spiritual relationship the natives had with their land, this was a big blow.
Through the Indian Removal Act 1830, 50,000 Native Indians were forcibly removed from the eastern states. The Intercourse Act 1834, made provisions for the exact location the new land reserves would be, since the Indians Removal Act did not specify, stating that Indians were to transfer to, “that part of the United States west of the Mississippi, and not within the states of Missouri, Louisiana, or the Territory of Arkansas.”
The policy prohibited encroachment by the whites into the new Indian reservation and guaranteed total non-interference of their affairs (natives) by even the government itself. There were an additional over 70 treaties outlining the government support and protection in their migration. The federal government labelled the land in the frontier as the Great American Desert, believing no one would want to own property in the area. The U.S Army was mandated to patrol the border to ensure enforcement of the law.
Further, noting the diverse nature of the Indian’s culture, like the Cherokee and the other groups, the government committed to ensuring that they have a representative in Congress, a promise that the government never honoured. The Indian tribes resisted the removal and the provisions of the Intercourse Act, and the government resorted to moving them by force to the reserved area. The forced relocation and match to the land reserve marked the “Trail of Tears.” About 4,000 out of the 15,000 Indians, who were forcibly removed from Georgia, died along the way.
The Trade and Intercourse Acts outlined out the penalties for crimes committed against the natives by the settlers. They also prohibited the trespass by the settlers on the reserves for grazing, hunting or any other reason and the purchase of native land by individuals. These were among the few small wins that were short-lived.
Supreme Court Interventions
John Marshall was the most longest serving Supreme Court Justice in its history. He is distinguished for affirming the independence of the Supreme Court in the formative years of American democratic system among the three arms of government. He established the ‘judicial review’ principle, which declared the Supreme Court role in striking down laws that violate the U.S. Constitution.
In 1823, John v McIntosh was the first instituted case concerning relations between the Indians and the federal government. It caused the interpretation of the doctrine of discovery established at the height of imperialism. The theory provided ‘that ownership of lands belonged to the government whose subjects explored and occupied that land whose inhabitants were not subjects of a European monarch.’ This doctrine meant that Europeans claims over North America supersede claims by Native Americans. Thomas Johnson bought land from the Piankeshaw Indians. At the same time, William McIntosh obtained ownership of the property from the federal government. There was an ensuing dispute as to the rightful owner. The court held that the land belonged to McIntosh, detailing that Indians only had the right to occupy. Accordingly, the right to occupy ‘could be overturned by the conquest of the Indians or purchase from them, by the discovering nation.’ Upon independence, discovery rights shifted from Great Britain to the United States government, and therefore only the federal government had the legal capacity to sell land. Indians could not sell land and lacked the constitutional right to settle aboriginal land claims, and further, only the federal land could negotiate with Indians over land.
In 1831, from the Cherokee Nation v Georgia (l831) the Cherokee sued the state of Georgia for a law in the 1800s that Georgia passed that divided the Cherokee land among counties. The state of Georgia made it illegal for the Cherokee government to enact and enforce laws. The Cherokee Nation sought an injunction to stop the state from dividing their land and suppressing their governance system. The native Cherokee contended that they were an independent foreign nation and Georgia state laws are not applicable in their territory. Chief Justice John Marshal disagreed that the Cherokee were a sovereign nation, noting that they were a ‘dependent domestic nation’ and the relationship between the states and the tribes was that of ‘ward and guardian.’ The ruling was a landmark because the judge recognized the inherent sovereignty of the native tribes, ‘which though predates the United States, was within the boundaries of the United States.’ The Cherokee were successful in demonstrating that they were a ‘distinct political society separated from others and capable of managing its affairs and governing itself.’ The case established a rule called the ‘the doctrine of federal trust responsibility.’ According to the doctrine, the federal government was responsible for protecting the tribes in the land reserves and compensating them by providing necessities such as food and shelter among others.
A year later, the case of Worcester v Georgia (1832) came to the Supreme Court. The state of Georgia had arrested missionaries for violating a state law that required non-Indians residing in the territory of Georgia to secure a license from the state. Upon appeal to the Supreme Court, Justice Marshall held that the tribe had exclusive jurisdiction within their territory and therefore such rules of the state of Georgia did not apply, forming the basis of the present day Indians jurisdictional law.
The movement to Reservations (1830-1887)
In 1871, Congress passed a law that stopped the federal government from entering into treaties with Indians. The implication of this was that unilateral executive orders could establish reservations after 1871. The status of tribes as ‘dependent domestic nations’ was in danger. The law intended to assimilate the Indians into the American culture. However, because of the Supreme Court rulings, common consent was still a requirement for federal actions concerning the natives.
General Allotment (Dawes) Act of 1887
I887 to 1933, the U.S. continued pursuing policies for the assimilation of native Indians the broader American society. The law provided for Indian Reservation land was to be allocated to individual Native Americans and suspended their right to sell for 25 years, but reservation land left after the allotment process could be sold to an outsider. In Lone Wolf v Hitchcock, the Supreme Court in 1903 held that Congress could dispose of Indian land without the concurrence of the Indians occupying it. The legislation and the Supreme Court decision fueled the appetite for land the settlers had in regards to the Indians land.
The Dawes Act also made provisions for US citizenship for natives who acquired land according to the allotment procedure and ‘adopted the habits of civilized life.’ The plan also implicated the education practices of Indians with a Principal in one of the Indian Children School boasting that the ambition of the school was to ‘kill the Indian in him and save the man.’
The tribes suffered a significant blow because of these policies. Half a century later, native Indian land had decreased from 154 million acres in 1887 to 48 million in 1934. In 1928, the Meriam report documented the poverty and suffering of the Indians because of the policies. The report while supporting that government policy should continue in its objective of assimilating the native Indians, spoke against ‘the disastrous attempt to force individual Indians or groups of Indians to be what they do not want to be, to break their pride in themselves and their Indian race, or to deprive them of their Indian culture.’
In 1933, John Collier became the Commissioner of Indian Affairs. He championed for the Indian Reorganization Act (IRA) of 1934 that brought to an end the policy of allotment and prohibited the further sale of Indian land. The Act also decreed that land still in the reservation and not sold should be returned to the custody of the tribe. The Act also provided for a measure of government and judicial independence to the tribes.
The Indians rejected the policy. It did not attempt to address the historical injustices of the previous systems, and it found 100,000 dispossessed Indians whose best land was sold during the allotment period. It was a case of too little too late, a reality that persists today. The impact of the Injustices suffered by the natives in the hands of the settlers and the early government is permanent.