01 June 2009

The Pendulum Swings of Indian Policy

 

Signature page of receipt for payments to Iroquois chiefs for land they ceded to the British in the Treaty of Fort Stanwix (1789), one of many such documents that defined the legal relationships between the colonists and the Native tribes. The chiefs signed by inscribing their totem animals.

Indian chiefs signed by inscribing their totem animals on this receipt for payments to the chiefs for land ceded to the British.

By Jace Weaver

Jace Weaver is Franklin Professor of Religion and Native American Studies, a professor of law, and director of the Institute of Native American Studies Program at the University of Georgia in Athens, Georgia. With degrees in political science, theology, and law, his work spans disciplines. He has authored or edited nine books and is currently working on a book on the Cherokee Removal with his wife, Laura Adams Weaver. He was adviser for the 2009 PBS documentary series We Shall Remain, Episode 3, “Trail of Tears,” which presents history from the Indian perspective. He is of Cherokee ancestry.

When Americans watched the evening news on television on November 21, 1969, most were shocked to learn that Indians had occupied the abandoned federal prison on Alcatraz Island in San Francisco Bay. Their surprise came not so much from the act of radical activism — by 1969 Americans had become accustomed to seeing protests on their TVs — as they were to find that Indians still existed at all. For many Americans, Indians (or Native Americans) never emerged into the 20th century from the 19th. They forgot Indians existed with the declared end of the Indian Wars in 1890.

Average Americans could be forgiven their ignorance. The media did little to cover issues involving the indigenous inhabitants of the United States. Henry Luce was not atypical. The powerful publisher of Time and Life magazines had “an absolutely and seemingly unbreakable policy against running any stories about Indians anywhere in the country.” Luce considered contemporary Native Americans to be “phonies,” according to Alvin Josephy in “New England Indians: Then and Now,” in The Pequots in Southern New England: The Fall and Rise of an American Indian Nation (1990).

The Indian occupiers of Alcatraz based their actions vaguely on a notion that the Fort Laramie Treaty of 1868, which ended Oglala Lakota Chief Red Cloud’s war against the United States, permitted Native Americans to claim surplus federal property. Indians held the island for 19 months. It was the first of several such occupations and other protests.

These events not only awakened the general population to the presence of modern-day Native Americans; they did not go unnoticed in the corridors of power. In July 1970, in a special message to the U.S. Congress, President Richard Nixon (1969-1974) announced a new direction in Indian policy, Self-Determination. Now Indian tribes would be encouraged to manage their own affairs. This policy replaced that which had reigned for the previous 25 years, Termination, which terminated recognition of sovereign Indian nations, their tribal laws, and land stewardship. Through assimilation and legislation, state and federal governments sought to end the special relationship between the tribes and the government defined by treaties and, essentially, write Indians out of existence as distinct Native cultures.

In fact, for 233 years governmental policy toward the country’s original inhabitants has swung pendulum-like between encouraging cultural survival and aggressive assimilation. As each policy era gave way to the next, the aim was, in every instance, to solve the “Indian problem.” To policymakers the problem was the special status of Indians and Indian tribes, what in Canada (where law and policy broadly parallels the United States) is called “citizenship-plus.” Indian tribes are separate sovereigns within the federal system. They are “nations within a nation,” a status that is confirmed by treaties and the U.S. Constitution. Members of federally recognized tribes are thus dual citizens, of both the United States and their Native nation. With nearly every turn in policy, lawmakers have sought to get the federal government “out of the Indian business.”

Authority over Indians

Actually, in order to understand American Indian policy and the place of Native Americans, one must go back before the beginning to the colonial period. After the end of the French and Indian War in 1763, France ceded its New France (Canada and the land between the Mississippi River and the so-called eastern mountains) to Great Britain. To bring order to the newly acquired territory, King George III issued a royal proclamation. It provided that neither individuals nor colonies could buy or take lands from Indians. Now the Crown was the only taker of land from Indians, and there was only one way to gain it: a treaty by which a tribe ceded its lands. It also sought to establish a “permanent line of White settlement” in North America. For the 13 American colonies, this was the Appalachian chain, a line of demarcation that was violated even before it was established.

After the American Revolution (1775-1783), the United States stepped into the shoes of Britain. The U.S. Constitution (Article I, Section 8) gave Congress the power to “regulate commerce … with the Indian tribes.” Over time this has been interpreted as giving the federal government exclusive and total authority over Indians. In 1790, Congress passed the Trade and Intercourse Act, which mirrored the royal proclamation. Before he became president, George Washington wrote that policy and practicality point very strongly to … the propriety of purchasing their Lands in preference to attempting to drive them by force of arms out of their Country; which as we have already experienced is like driving the Wild Beasts of the Forest which will return as soon as the pursuit is at an end and fall perhaps on those that are left there; when the gradual extension of our Settlements will as certainly cause the Savage as the Wolf to retire; both being beasts of prey tho’ they differ in shape. (George Washington, Letter to James Duane, September 7, 1783, quoted in Francis Paul Prucha, ed., Documents of United States Indian Policy (1990))

President Washington (1789-1797) followed a policy of assimilation in situ, “civilization” and incorporation of Indians into the new nation where they were located.

Although Washington’s position would remain official policy for 40 years, by the time of Thomas Jefferson’s presidency (1801-1809), there were signs of change. Echoing Washington but hinting at a new policy, Jefferson wrote, “[O]ur settlements will gradually circumscribe and approach the Indians, and they in time either incorporate with us as citizens of the United States, or remove beyond the Mississippi. The former is certainly the termination of their history most happy for themselves” (Thomas Jefferson, Letter to William Henry Harrison, February 27, 1803). After the Louisiana Purchase, he even suggested making the Mississippi River the new permanent line of White settlement in North America. Although Jefferson quickly dropped the idea, thereafter the removal of Indians to the West became part of the public discourse and an increasing inevitability. In 1830, Congress passed the Indian Removal Act. From 1831 to 1839, the major tribes of the Southeast, the so-called Five Civilized Tribes, were relocated to Indian Territory (present-day Oklahoma). Removal was designed to remove an obstacle to White settlement, but it was also intended to permit Native nations to maintain their governments and cultures outside the United States.

Support for Removal ebbed, largely due to the brutality of the forced march of the Cherokee to the West, a trek that became known as the Trail of Tears. After 1839, sectional differences between North and South that would lead to the U.S. Civil War (1861-1865) dominated the political agenda. Indians were largely ignored. After the Civil War, however, westward expansion began again. There was once again the need to remove Indians as impediments to White settlement. This ushered in the period of Reservation policy.

Reservations were intended to be temporary measures while Indians were prepared for citizenship by teaching them farming and the mechanical arts. Reservation lands were held by the federal government communally in trust for the Indians who lived there. In 1887, as a further tool for “civilizing” Natives, Congress decided to give them private property. Under the General Allotment Act, reservations were broken into small parcels and given to individual Native Americans and Native families. With Allotment, the policy pendulum swung back to forced assimilation. In 1901, President Theodore Roosevelt (1901-1909) called it “a mighty pulverizing engine to break up the tribal mass” (Theodore Roosevelt, First Annual Message to Congress, December 3, 1901). As a result of Allotment, 65 percent of Indian lands passed out of Native hands between 1887 and 1934.

The Indian New Deal

As with every policy before them, Reservations and Allotment failed to achieve their desired goals and solve the “Indian problem.” Political winds shifted. It was left to Theodore Roosevelt’s cousin to shift policy back toward political and cultural preservation. During Franklin Roosevelt’s presidency (1933-1945), Secretary of the Interior Harold Ickes and Commissioner of Indian Affairs John Collier created the Indian New Deal.

The cornerstone of the Indian New Deal was the Indian Reorganization Act (IRA) of 1934. The act encouraged tribes to draft written constitutions and govern themselves, subject to the supervision of the Bureau of Indian Affairs. Though some tribal nations resisted the IRA as infringing on inherent tribal national sovereignty, the new policy era represented a major change for the better. Legislation also ended Allotment and legalized the practice of traditional Native religions (which had been criminalized during the Reservation period).

Just as events running up to the Civil War drove Indians from the public agenda, so did World War II. In the years following the war, though, forces opposed to Native sovereignty reasserted themselves and proceeded to dismantle the Indian New Deal. In 1948, Congress created a special commission on government, chaired by Herbert Hoover. As president (1929-1933), Hoover had effectively stopped allotment but done nothing to actively change the policy. Despite the gains made under Franklin Roosevelt, the report of the Hoover Commission channeled Theodore Roosevelt, stating, “The basis for historic Indian culture has been swept away. Traditional tribal organization was smashed a generation ago… Assimilation must be the goal of public policy” (Quoted in Charles F. Wilkinson, Blood Struggle: The Rise of Modern Indian Nations (2005)). Termination, by which the federal government attempted to sever its government-to-government relationship with nations — effectively abolishing tribes — became federal policy. A key component of the policy was Relocation, a program designed to lure Indians from reservations into cities where there was need of a large labor population. The person President Harry Truman (1945-1953) chose to administer Termination and Relocation as commissioner of Indian Affairs was Dillon S. Myer. Myer’s previous experience with American minorities was during World War II when he headed the War Relocation Administration, the agency that oversaw internment camps for Japanese Americans. Allotment led to the loss of 65 percent of Indian lands we largely due to Termination and Relocation, today more than 70 percent of Native Americans live off reservations.

Self-Determination

President John F. Kennedy (1961-1963) ended federal termination efforts, but it was left to President Nixon to announce Self-Determination. It remains official policy today. In the past 40 years, Native nations have taken increasing control of their destinies, governing themselves and their citizens.

Today there are 562 federally recognized tribes. Though poverty and health disparities remain critical problems, thanks to the Supreme Court decision in California v. Cabazon Band of Mission Indians (1987), which ruled that states could not prohibit gambling on sovereign Indian lands, some tribes have achieved economic independence. Tribal nations have increased the zone of tribal sovereignty.

Recently, in an important book, Jeff Corntassel and Richard Witmer have argued that the policy era has turned yet again. They contend that we live in the era of “forced federalism” because since 1988, with the passage of the Indian Gaming Regulatory Act (a response to the Cabazon decision), Congress has required Native nations to negotiate with state governments regarding establishment of gambling casinos. This represents an intrusion by states into tribal sovereignty not seen since Termination.

Although it is too early in President Barack Obama’s administration to discern what direction his Indian policy will take, there are indications that he will continue, and even strengthen, Self-Determination. During the 2008 presidential campaign, he expressed opinions strongly in favor of Native sovereignty. He has nominated Larry Echohawk, a Pawnee legal scholar and expert in federal Indian law and policy, to head the Bureau of Indian Affairs. Despite these hopeful signs, Native Americans remain wary. History has taught them that, if not now at least sometime in the future, the pendulum will swing once more from a policy of sovereignty and survival to one of assimilation and extinction.

The opinions expressed in this article do not necessarily reflect the views or policies of the U.S. government.