Native American Policy

Native American Policy, laws and procedures developed in the United States to define the relationship between the government and Native Americans. From the time of first contact, Europeans who came to North America noted vast differences between their cultures and those of the native peoples who already inhabited the New World. In their dealings with Native Americans, the Europeans adopted policies that were shaped by their own worldview and experience. When the United States became a nation, the new government built on this European foundation, but over time adapted its Native American policy to changing perspectives and needs. Over the course of 200 years, this policy has varied widely. At times, the federal government has recognized indigenous peoples as independent political communities with separate cultural identities. At other times, it has tried to force them to abandon their cultural identity, to give up their land base, and to assimilate into the American mainstream.

II

COLONIAL EXPERIENCE

The Europeans who established settlements in North America generally expected to dominate the Native Americans who already inhabited the continent (see Colonies and Colonialism). Each European nation developed its own procedures to oversee relationships with the native peoples. But substantial differences in attitudes toward native peoples emerged, attitudes that were often shaped by economic and cultural considerations. The Dutch, for example, who were primarily interested in trade, respected the sovereign or independent rights of Native Americans. The Dutch purchased land from the Native Americans in order to establish colonies and protect their commercial enterprises. The French generally showed respect for native peoples, but the Spanish developed a policy that was designed to Christianize and subjugate native populations. This policy resulted in a high loss of life among native peoples in areas under Spanish control.

In the 16th century, English monarchs gave explorers great freedom to claim territory with almost no regard for the rights of Native Americans. If indigenous people were considered at all, they were considered as subjects of the Crown. As the British colonies expanded, they often confiscated tribal lands through warfare, although in some areas royal charters mandated land purchase. The British justified their occupation of huge tracts of land with the argument that Native Americans were heathens who did not develop the land. Once territory was acquired, the British allowed the colonists to devise their own policies for dealing with Native Americans. Usually, the colonists imposed their own laws on Native Americans who lived within their jurisdiction.

By the early 18th century, however, the British colonists were competing with the Spanish and the French for land and trade. The British began to use the treaty-making process as their primary means of negotiating with Native Americans. These treaties were official written agreements that dealt with tribal groups as sovereign nations. They provided the basis for land cessions, trade, and other relationships between native peoples and the British government.

British relations with the Native American groups were threatened by colonial expansion following the French and Indian War (1754-1763). As a result of that war, France ceded its claim to all land east of the Mississippi River. The British colonists began to push settlement westward beyond the Appalachian Mountains more aggressively. In an attempt to control the situation, the British government issued the Royal Proclamation of 1763. This act established a boundary along the crest of the Appalachian Mountains and forbade settlement west of this line. However, the colonists were difficult to restrain, and the colonists’ victory over the British in the American Revolution put Native American policy completely under the colonists’ control.

III

RELATIONS BETWEEN INDEPENDENT NATIONS

During the Revolutionary War, Native Americans had the power to affect the fortunes of the newly independent United States. Many of the North American tribes were militarily powerful and possessed vast areas of land. They were also diplomatically astute and had enhanced their position by developing trade not only with the Americans but also with the British, French, and Spanish. The American patriots needed to maintain good relationships with native peoples to prevent hostilities and to encourage the transfer of land. Even before the Declaration of Independence was signed, the Continental Congress established a committee on Native American policy. The three appointed commissioners were to ensure that good relationships were maintained with various tribal groups. After colonists had achieved full independence, the Congress continued the British policy of negotiating treaties with Native Americans in most matters concerning land and settlement rights.

As part of the government’s Revolutionary War strategy, the Continental Congress concluded a treaty with the Delaware confederacy in 1778. This group of native peoples had migrated from the Delaware River into Ohio and western Pennsylvania as Europeans settled on their lands. The treaty established a military alliance between the newly formed American government and the Delaware. It also promised that Congress would accept the Delaware if they decided to form their own state and seek entry into the union. This offer indicated that members of the Continental Congress regarded Native Americans as independent peoples who were not directly under the government’s control.

A series of laws called the Trade and Intercourse Acts further defined the U.S. government’s relationship with native groups. These acts, passed between 1790 and 1834, established federal control over all relations with Native Americans. Federal control meant that only Congress, not states or private parties, could negotiate treaties, obtain lands, and trade with Native Americans. The government could also require special licenses for traders or passports for citizens entering Native American lands. This system allowed federal officials to monitor individual interaction with the tribes and to reduce the risk of misunderstandings and hostilities.

Despite these precautions, relationships deteriorated as the government increased pressure on Native Americans to cede their lands. American expansion continued westward across the Appalachian Mountains. Tecumseh, a respected leader of the Shawnee, formed an alliance of tribes to block the flood of newcomers. Fearing the impact of such a confederacy, an American militia unit under the command of Indiana Territorial Governor William Henry Harrison attacked Prophetstown, the movement’s headquarters on the Wabash River, in November 1811. In this bloody engagement, later called the Battle of Tippecanoe, Harrison’s army scattered the Shawnee and their allies, who were led by Tecumseh’s brother Tenskwatawa, known as the Prophet. This defeat effectively ended Tecumseh’s efforts to unify Native American resistance.

Harrison’s victory and continued American expansion only intensified the Native Americans’ resentment, causing many Indian nations to support the British during the War of 1812. Large numbers of Native Americans, including Tecumseh, fought beside British soldiers in Canada and the Great Lakes region. In the South, a group of young Creek warriors called the Red Sticks, using ammunition supplied by the Spanish, attacked Fort Mims, an American frontier fort. This attack resulted in the deaths of more than 250 settlers, prompting the United States to retaliate. The Creek were defeated by forces led by Tennessee militia commander Andrew Jackson at the Battle of Horseshoe Bend. After this defeat, the Creek were forced to give up large sections of their land.

The Treaty of Ghent, which ended the War of 1812, included provisions that the United States would establish peaceful relations with the Native Americans who had allied with the British. New treaties were negotiated with these native peoples, but the treaties were difficult to enforce. Settlers who wanted land simply ignored them.

In the years after the war, the government faced difficult decisions about the direction of Native American policy. Some officials wanted to see the Native Americans assimilated into the larger society: They wanted the Native Americans to give up their cultural practices and to adopt American ones. Others felt that separating the two races was the only way to ease tensions. Although the government experimented with both approaches, negotiating treaties to remove Native Americans from the path of white settlement dominated policy during the second quarter of the 19th century.

IV

REMOVAL PERIOD

The idea of moving Native Americans to a different part of the country was not new. After the Louisiana Purchase in 1803, President Thomas Jefferson had suggested that tracts of land in this vast new territory could be given to native peoples if they agreed to cede their lands in the eastern part of the country. Transfers occurred in a piecemeal way, but no consistent removal program developed until after the War of 1812.

A coherent policy began to take shape in 1824. At this time, Secretary of War John Caldwell Calhoun created an administrative office within the Department of War called the Bureau of Indian Affairs, more frequently referred to as the Office of Indian Affairs. Calhoun appointed an experienced administrator, Thomas L. McKenney, to supervise the work of this new agency. McKenney is usually considered the first commissioner of Indian affairs, although this position was not formalized by Congress until 1832. His primary responsibilities were to oversee existing treaty relations and to conduct negotiations for the removal of native groups. Initially, the bureau focused on indigenous peoples living in the Great Lakes region, then called the Northwest Territory, and also in the Southeast.

The main Native American peoples in the Southeast were the Cherokee, Creek, Choctaw, Seminole, and Chickasaw. These groups were known collectively as the Five Civilized Tribes because they had rapidly adopted many elements of European life. They occupied rich agricultural land that was very attractive to potential settlers. When gold was discovered in Cherokee territory, whites demanded that the United States acquire huge tracts of land from Native Americans in the region. Angry over the Cherokees’ independence, the state of Georgia threatened to secede over the issue.

In 1830 Congress accommodated the settlers’ wishes by passing the Indian Removal Act (see Indian Wars: Native American Removal Policy). This legislation provided funds to cover the cost of treaty negotiations and the removal of eastern tribes to lands west of the Mississippi River. Native Americans, joined by a few white supporters from the North, lobbied strongly against the bill’s passage. Some native groups such as the Cherokee even passed laws forbidding their people, on penalty of death, to negotiate treaties ceding their aboriginal homelands.

Despite these efforts, the government removed a majority of the Native Americans from the Southeast to an area west of the Mississippi that became known as Indian Territory. Military power was often used to force unwilling groups to leave their lands. Tribal members who were made to relocate often faced devastating losses and even death on the trek westward. For example, the Cherokee's removal from Georgia to Indian Territory in 1838 and 1839 became known as the Trail of Tears because nearly 4000 out of more than 18,000 who were forced from their homes died in stockades or on the journey westward. By the end of the 1830s, the government had relocated more than 30 eastern tribes to the West. Although the government promised that Indian Territory would be a permanent home for these peoples, settlers soon demanded land in parts of Indian Territory as well. By 1907 the area once set aside for Native Americans as Indian Territory had become part of the state of Oklahoma.

V

RESERVATION PERIOD

The removal policy opened up much Native American land in the East for white settlement, but American expansion did not stop at the Mississippi River. Between 1830 and 1860, the United States doubled the amount of territory under its control with the addition of the Oregon country, California, Texas, and the borderlands of southern New Mexico and Arizona that were part of the Gadsden Purchase. These new territorial acquisitions coincided with the arrival of European and Asian immigrants who hoped to join the flood of Americans heading to the American West. The discovery of gold in California in 1849 (see Gold Rush of 1849) and the promise of land for cultivation and settlement presented attractive opportunities for those willing to journey westward.

The stream of migrants brought trouble to the highly diverse groups of Native Americans who already occupied these western lands. These newcomers not only traveled through Native Americans’ lands but also began to use the land for mining and agriculture, disrupting traditional Native American ways of life. To the peoples of the Northern Plains (see Native Americans: The Plains), for example, white settlement meant losing the buffalo herds they relied on for food and other needs; many soon faced starvation. Many native peoples had no immunity to smallpox, cholera, and even some of the more common illnesses, such as influenza, that the settlers brought with them. Some peoples, such as the Mandan in North Dakota, lost large percentages of their population to these diseases.

With so many people moving into the West, the government turned to a policy of restricting Native Americans to reservations, which were generally small areas of land within the group’s territory. This land was to be reserved exclusively for their use. These reservations (see Native American Reservations) kept native peoples separate from whites, thus reducing the potential for conflict. They were also supposed to provide the native peoples with sufficient land to develop new skills in agriculture and livestock management, skills considered necessary for 'civilized' life. Since the government recognized Native Americans as semi-independent nations who retained the right to occupy their lands, it established the reservations by formal treaties. These treaties specified boundaries and established payment for lands that the tribes were asked to relinquish. In 1849 Congress transferred the Bureau of Indian Affairs from the War Department to a new agency, the Department of the Interior. The bureau’s responsibility to administer the government’s Native American policies remained the same.

One of the first of these treaties was the Treaty of Fort Laramie negotiated in 1851 (see Fort Laramie National Historic Site). The Sioux, Cheyenne, Arapaho, Crow, Assiniboine, Gros Ventre, Mandan, and Arikara who signed this document agreed to end hostilities among themselves and to accept specified reservations. In exchange, the government offered protection from attacks by white settlers and a yearly payment that would include money as well as food, household goods, livestock, and tools for agriculture. Similar treaties were made with other tribal groups throughout the West over the next two decades.

These agreements had many problems. Frequently the treaties did not take into account the cultural practices of the native peoples, and often the Native Americans did not fully understand what they were signing or the government misrepresented the conditions to them. A large number of treaties were never ratified by the United States Senate, leaving the status of certain Native American lands in question. In addition, the government agencies responsible for administering these agreements were plagued by corruption and mismanagement, and many treaty provisions were never carried out.

The Native American peoples in the West were frequently dissatisfied with the treaty process and resented the settlers’ continued demands for land. As they sought to protect their lands and to ensure their survival, more than 1000 skirmishes and battles erupted throughout the West between 1861 and 1891 (see Indian Wars). The government responded with costly military campaigns in an attempt to force Native Americans onto reservations and end the hostilities.

The Bureau of Indian Affairs attempted to eliminate corruption among the agents who administered policy on the reservations. As part of this effort, the bureau appointed Christian missionaries to supervisory positions on some reservations. Previously, many agents had been selected in return for political favors. All too often, these politically appointed agents used their position to enrich themselves. They secured government contracts to purchase goods or food promised to the tribes in their treaties and then sold these supplies to outsiders and kept the profits. The missionaries carried out government policies, but they also tried to Christianize native peoples and encouraged them to give up many of their own cultural practices.

Native American opposition continued, especially among Plains groups such as the Sioux or Lakota, who saw their way of life threatened. Some turned to new religions, such as the Ghost Dance (see Native American Religions: Ghost Dance) that promised a return to the old ways, but the government also found these movements threatening. In December 1890 the U.S. Cavalry killed as many as 350 followers of the Sioux leader Sitting Bull because they had practiced the Ghost Dance. After this confrontation near Wounded Knee, South Dakota, the Native American wars effectively came to an end.

VI

ALLOTMENT PERIOD

Since its beginnings, the United States government had treated Native Americans as sovereign peoples and used treaties as the legal basis for most of its relationships with them. Between 1778 and 1871, Congress had approved more than 370 treaties with Native American groups, while hundreds more were negotiated but never approved.

This policy changed after the Civil War. Reformers who were concerned about the plight of Native Americans and industrialists who wanted their land and resources decided that assimilating native peoples into American society was a preferable policy. In 1871 the federal government enacted a law stating that the United States would no longer treat Native American tribal groups as independent nations. This legislation signaled a fundamental shift in the government’s relationship with Native Americans. Congress would no longer regard tribal groups as nations outside of its jurisdictional control, but rather as wards of the federal government.

By making the native peoples wards of the government, Congress believed it would be better able to promote their assimilation into the cultural mainstream of white America. Corporate interests intent on developing the West and eastern reformers critical of the government’s past policies toward Native Americans all believed that assimilation was the most effective resolution to what they called the “Indian problem.” The new policy would bring Native Americans one step closer to the end of their tribal identity and the beginning of their existence as individuals under the control of the United States government.

The government’s policies of assimilation extended into all areas of Native American life—economic, political, cultural, and spiritual. For example, government regulations that remained in force until the 1930s sought to destroy the essence of Native American culture by forbidding the practice of traditional spiritual ceremonies. Reservation agents used such tactics as withholding rations and goods to encourage attendance at Christian churches. With government support, some of these churches established day schools and boarding schools where children were taught English and forbidden to speak their native tongues. Government or church-appointed superintendents settled disputes and dictated political and economic decisions, assuming roles that had formerly been filled by tribal leaders. The Major Crimes Act, enacted in 1885, gave the United States government criminal jurisdiction over native peoples who committed any of seven major crimes, including murder and burglary. Agents on more than two-thirds of the reservations established courts to enforce federal regulations that, in many cases, outlawed traditional cultural and spiritual practices.

In 1887 Congress passed the centerpiece of the assimilation program, the General Allotment Act, also known as the Dawes Act. The objective of this legislation was to “civilize” Native Americans by teaching them to become farmers and ranchers. Congress wanted to break up the reservations, which were communally owned, and give individual Native Americans their own plots of land. Heads of households received about 30 to 60 hectares (80 to 160 acres), depending on the suitability of the land for agriculture and ranching; their wives and children, as well as unmarried adults, received smaller plots, usually 20 to 30 hectares (40 to 80 acres).

The allotment process was not accepted willingly by most native peoples. For many, the land was the spiritual and cultural center of their lives. To treat the land as an economic commodity undermined their sense of identity and their values. The division of reservations into small parcels led to a rapid reduction in the amount of land owned by Native Americans. Within 30 years, tribes had lost two-thirds of the territory they had controlled in 1887. The government sold most of the land remaining after the allotment process to white settlers. Over the years, individual Native American landowners were often forced to sell their allotments to pay bills or to feed their families.

For the next several decades Native Americans lived under a policy that outlawed their traditional means of existence, yet failed to provide adequate resources to support educational, health, and economic programs necessary for a new life. In 1924 Congress extended American citizenship to all Native Americans, although by this time nearly two-thirds of native peoples were already citizens, including those who served in the United States military during World War I (1914-1918). The right of American citizenship did not replace Native American tribal membership, nor did it necessarily free native peoples from their position as wards of the government. Citizenship also did not offer significant improvement in living standards, and reformers continued to find fault with the government’s policy toward Native Americans. Many of their criticisms were confirmed by the Merriam Report, an independent study commissioned to review the administration of Native American affairs. The report, published in 1928, described the loss of tribal lands through the allotment process, the poor health and educational levels of Native Americans, and the lack of control native people had over their own lives.

VII

INDIAN REORGANIZATION PERIOD

In 1932 President Franklin Roosevelt appointed John Collier as commissioner of Indian Affairs. Collier, an outspoken critic of the Bureau of Indian Affairs during the allotment period, was both knowledgeable and respectful of Native American culture. As commissioner he was committed to reversing the government’s previous policies that were hostile to traditional Native American cultural practices. He also wanted to improve the health and welfare of Native Americans.

Collier immediately went to work to improve economic conditions among Native Americans. He brought to the reservations many of Roosevelt’s New Deal programs, which were designed to counteract the economic problems of the Great Depression. In some cases, he established separate agencies, such as the Indian Civilian Conservation Corps, to employ Native Americans on conservation projects, and the Indian Arts and Crafts Board to promote sales of goods made by Native Americans. He also worked to withdraw all federal regulations forbidding the practice of Indian religious ceremonies and to end the sale of allotted lands.

Collier’s most wide-ranging effort was to return political, cultural, and economic authority to the tribes. He sought to accomplish this goal with the Indian Reorganization Act (see Native Americans: 20th-Century U.S. Policies). Collier’s original draft of the legislation proposed some revolutionary new measures for self-government and the revival of tribal control over Native American lands. The bill faced strong opposition from some lawmakers as well as a few Native American groups, and it was heavily amended before Congress finally passed it in 1934. In its final form, the Indian Reorganization Act established a process through which native peoples could adopt a constitution and establish tribal councils. It was designed to give Native Americans greater control over the political, social, and economic policies that affected their lives.

VIII

TERMINATION PERIOD

Interest in Native American culture and traditions flourished during the era of the Indian Reorganization Act, but this attention was short-lived. Victory in World War II gave Americans a new pride in mainstream American culture and ideals. Native Americans had shown their patriotism by volunteering for military service in record numbers, but the postwar emphasis on the superiority of the mainstream way of life translated into another change in the government’s attitudes toward Native Americans. Congress no longer supported policies encouraging a renewal of tribal culture and communities. In fact, Congress passed a series of bills designed to return to the policy of assimilation and to integrate Native Americans into the broader society as rapidly as possible.

The 1946 Indian Claims Commission Act served as a forerunner of this change in policy. The act was designed to resolve Native American land claims against the government and to ensure that no future claims would be filed. The Indian Claims Commission Act provided native peoples the opportunity to sue the federal government over the illegal transfer of tribal lands and to make other claims under the terms of the treaties that the government had negotiated with native groups. Several hundred petitions were filed, overwhelming the commission. Although tribes ultimately received more than $800 million in compensation for their losses, the settlements were not as high as some groups expected. More importantly, the act did not provide for the return of Native American lands. The commission’s original purpose of correcting past wrongs was overshadowed by the perception that it represented a step toward assimilation and the withdrawal of federal responsibility for Native American groups.

During the 1950s and early 1960s, Congress passed a number of additional bills designed to terminate the government’s relationship with Native Americans. House Concurrent Resolution 108 stated that the government would pursue a policy to end Native Americans’ status as wards of the government. Native peoples would become “subject to the same laws and entitled to the same privileges and responsibilities” as other United States citizens. Between 1954 and 1962 the federal government terminated its responsibility for services and benefits to at least 109 tribes, bands, and communities.

Responsibility for these groups was terminated based on an evaluation of the extent of the group’s adoption of white culture and its economic condition. Congress made the final determination of which groups to terminate, and the secretary of the interior set up the timetable for federal control to end. Their reservation lands were sold or allotted, and members of terminated tribes were no longer eligible for housing, health, education, and community development programs designed to help native people.

Another important piece of the government’s termination policy was Public Law 280, passed in 1953. This bill, passed without the consent of the tribes, transferred almost all civil and criminal jurisdiction over reservation lands in California, Minnesota, Nebraska, Oregon, and Wisconsin from the federal government to the states. During the 1950s, the Bureau of Indian Affairs also helped to establish a relocation program, which attempted to integrate Native Americans more fully by moving many from their rural reservations to large urban areas.

IX

SELF-DETERMINATION PERIOD

By the mid-1960s the climate of opinion began to change again. The civil rights movement, which prompted federal legislation to fight poverty and to promote equal rights, highlighted the needs of minority groups in the United States. Moreover, the protests in the 1960s showed how both nonviolent and violent public marches and demonstrations could focus attention on problems in American society. In 1968 several young Native American men formed the American Indian Movement (AIM). This group protested the government’s treatment of Native Americans and sought to protect their rights as they were spelled out in treaties. The movement soon attracted a significant following, especially among Native American youth. AIM promoted a variety of demonstrations for Native American rights that included sit-ins, building takeovers, and marches at sites around the country. Some of their most highly publicized activities included an attempt to establish Native American claims to Alcatraz by the occupation of that island from 1969 to 1971. In 1973 a protest over government policy took place at the battle site of Wounded Knee. It resulted in a 71-day siege and two deaths. These militant actions brought the plight of Native Americans before the American public and Congress.

In 1975 Congress responded to intense tribal lobbying efforts and the publicity generated by AIM. It passed the Indian Self-Determination and Education Assistance Act, which helped Native American groups to assume control over many of the federal programs supervised by the Bureau of Indian Affairs. Other important laws, such as the 1978 Indian Child Welfare Act, gave Native Americans control over the adoption and foster care of Native American children.

Since 1975 Congress has generally followed a policy of allowing Native American groups to govern themselves. Despite continued budget cuts and insufficient funding, Native American peoples have increasingly taken control of the management of their schools, housing programs, health programs, economic ventures, and lands. In the last two decades of the 20th century, Native Americans also gained experience in presenting their opinions to Congress and in the federal courts. While not always successful, they won many landmark cases protecting their fishing, treaty, and land rights and expanding their sovereignty over issues of both economic and cultural significance. See also Native Americans of North America: Self-Determination.

Despite some improvement in the relationship between the United States government and Native Americans, conflicts over federal policy persist. Some tribes have charged the Bureau of Indian Affairs with mismanagement of Native American lands and waste of millions of dollars in trust funds. Government efforts to slash the federal budget have decreased the amount of funds allotted to Native American programs. Tribal people continue to have their religious rights denied. Social problems associated with alcohol use, including crimes and family violence, have risen steadily. While a number of tribes have started lucrative gambling casinos on tribal lands, others have failed to establish viable businesses or to provide sufficient employment opportunities for people on the reservations. In recent years the Supreme Court of the United States has denied tribes important governing powers over nonmembers within their reservation boundaries, making the enforcement of tribal law difficult. Other Native Americans are fighting to gain the government’s recognition of their tribal status in order to qualify for federal services and benefits.

At the heart of many of these conflicts between native peoples and the federal government is the issue of sovereignty, or the right of Native Americans to govern themselves. Increasing assertions of sovereignty have included, for example, attempts by Native Americans to exercise and manage hunting and fishing rights, to tax non-Native American users of reservation land, or to impose separate standards for environmental control of natural resources. These efforts have caused some backlash in Congress as well as local communities and resulted in attempts by nonnative peoples to limit new sources of tribal power.

In a March 1999 decision, the U.S. Supreme Court upheld the right of eight bands of Chippewa to hunt and fish without state regulation on lands ceded to the United States in an 1837 treaty. The Mille Lacs Chippewa filed the suit challenging Minnesota’s authority to impose hunting and fishing restrictions on tribal members. The ruling denied Minnesota’s claim that its admission as a state superceded earlier treaty provisions. Whether this decision signals new federal and legal support for tribal sovereignty remains unclear. What is clear is that the efforts of Native Americans to protect their lands as well as their rights to self-government, to religious identity and practices, and to inherent sovereignty at all levels will remain at the heart of Indian life in the 21st century just as it has in the last three centuries.