United States Government Policies Toward Native Americans,
1787-1990: a Guide to Materials in the British Library
David J. Whittaker
The history of the interaction of the United States Government and Native Americans is long and complex. Its roots can be found in the attitudes and debates of the Europeans who explored and colonised the Americas.
America's Founding Fathers drew upon both this colonial heritage and their own experience when addressing these important relationships, even though most of the details were to be worked out in the years after 1787.
The Constitution gave final authority for Indian Affairs to Congress, although all three branches of the Federal Government have played signifi-cant roles in this sphere. Both specific and implied powers have been used to anchor federal authority for Indian Affairs in the Constitution. Specific power can been found in the Commerce Clause (Article I, Section 8); implied power has been found in treaty-making powers (Article II, Section 2); in the war powers (Article I, Section 8 and Article II, Section 2); in the ownership clause relating to territories (Article IV, Section 3) and, most widely, in the general welfare clause (Article II, Section 8).
Early American Indian policy was spelled out in the Trade and Intercourse
Acts (1790-1834). Much of the judicial basis and legal theory for subsequent
relations were layed down in three key cases heard by the Marshall Court
during these same years. In Johnson v. McIntosh (1823), in deciding
the question of Indian land tide, the court distinguished between rights
of ownership [recognized tide of the Federal Government] and rights
of occupancy ["Indian" tide]. In the Cherokee cases the court
ruled on (1) what is the status of a tribe and (2) who controls Indian
affairs. In the first case, Cherokee Nation v. Georgia (1831), Marshall
described the political nature of the tribe as a
"domestic dependent nation," having a status as a ward to its guardian, the Federal Government. By so ruling Marshall established the basis for the trust relationship that has determined much of their subsequent relations. In the second, Worcester v. Georgia (1832), Marshall's judicial nationalism give the Federal Government final authority over the states for Indian affairs.
It was the treaty-making power delegated to the President (with the advice/consent of the Senate) that saw hundreds of treaties negotiated. Until 1871, when the practice of making treaties with Indian tribes was discontinued, this was the central avenue for formal Indian-White relation-ships. More like adhesion contracts than agreements between equal sovereigns, they were, nevertheless, important factors in the westward movement of the American settlers. Treaties were tools of empire as well as vehicles for humanitarian concern.
Federal Indian policy can be divided into a number of chronological periods. Following the formation of the nation, the Trade and Intercourse Acts sought to keep the natives segregated from the rest of the population and to more formerly control the key areas of interaction through a licensing system for trade and the appointment of federal Indian agents to administer and enforce the Acts. But the extensive frontier and the Westward movement were too powerful and broad to or control. Thus in 1830 Congress passed the Removal Act which authorized the President to remove (ideally voluntarily) tribes east of the Mississippi River to a large "Indian Country" in the West. During the 1830s and 1840s about 100,000 Natives were moved West. The tragic "Trail of Tears" was part of this era, and so were the first western Indian reservations. The continued westward movement frustrated the attempts of U.S. policy makers to achieve a final and peaceful solution to the Indian problem. And when many of these removed tribes signed military pledges of support for the Confederacy during the Civil War, further excuses for taking Indian land were now available for the many voices of Manifest Destiny. The Indian Wars after 1865 can be seen from this perspective.
During this period there was a change in policy from segregating Native Americans to assimilating them into the American mainstream, by using the reservation as a school for civilization and Christianity. While some argue this philoso-phy was implied from the beginning, Federal policy after 1865 and the Dawes Act of 1887 [General Allotment Act] made it a national goal. By breaking up the large reservations to create individual allotments, policy makers and the "Friends" of the Indian were sure they were acting in the best interests of the Natives. The Dawes Act, while the most damaging piece of legislation in Native American history, was thought to be a Homestead Act for the Indian at the time. But it stuck at the tribal, corporate basis of Indian life and not only destroyed most of the tribal land base (from 138 million in 1886 to 48 million acres by 1934), but also demoralised Indian life in general. The terrible consequences were documented in the Meriam Report of 1928.
The Indian New Deal, manifested in the work of John Collier, Franklin D. Roosevelt's Commissioner of Indian Affairs, was an attempt to halt the destruction caused by the Dawes Act. The Indian Reorganization Act (1934), [Wheeler Howard Act] sought to strengthen the tribal basis of Indian life. In 1946 Congress established the Indian Claims Commission, a special court with power to adjudicate land-loss cases only. It functioned until 1978.
By the 1950s there was a return to the Dawes mentality with Federal legislation which mandated Termination for a number of tribes on federal programs, and Relocation programs which provided the financial means for tribal members to move off the reservations into key American cities where they could receive manual arts training and job assistance. Termination was a failure (most tribes have been reinstated) and the relocation programs created Indian ghettos in urban America, ghettos from which the Red Power movement would emerge in the 1960s.
From the late 1960s, American Indian Policy has been labelled one of
Self-Determination--a policy of encouraging the tribes to shape their
own destinies. Much of these recent developments have been assisted
by a more vocal and active Native American community and by a host of
Supreme Court cases as well as a number of pieces of federal legislation.
It will be interesting to watch this history unfold as the next century
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