The History of Federal Indian Policy Prior to 1928
By
Ernest Cavazos
For
American Indian Law
00001 FEDERAL POLICY TOWARD hMERICAN INDIANS PRIOR TO 1928
I. HISTORY
A. Pre-revolutionary era. B. Post-revolutionary era. 1. Cherokee Nation. 2. Delaware Nation. 3. The Six Nations. 4. Ponca Nation.
II. Legislation and Courts
A. Trade and Intercourse Act. B. Appropriation Acts. c. Allotment/Dawes Act of 1887. 1 . The Burke Act. D. The Merian Report. E. Standing Bear v. Crook, 25 F. Con. 695 (C.C.D. Neb. 1879) (No. 14 1 891 ) • F. State v. Tinno, 94 Idaho 759, 497 P.2d 1385 (1972).
III. Analysis
A. Concept of Discovery. B. Concept of Conquest.
00002 The History of Federal Indian Policy Prior to 1928
The American Indian Policy has gone from one that respected
Indians rights to one that led to an immoral path of submission for the Indians. Public concern for the Indian plight was slow 1n comm1ng. However, it eventually led to the Merian Report and a call for reform in 1926.1
The past Indian injustice has to be viewed in a realistic
manner. That is to say, that there will never be a complete
remedy or solution for the past injustice. The only hope is that
the present and future Federal Indian Policy will follow a more humane route.
The object of this paper is to outline, analyze, and follow
the American Federal Indian Policy from the Pre-revolutionary era
to the era of allotment and assimilation. In doing so, some of
the different Indian nations will be researched with intent to set
a better understanding of this plight. Also, some of the actions
of the Federal Government will be scrutinized.
In the Pre-revolutionary era there were three ma1n different
Indian policies in North America: the British, French, and
Spanish. For the purpose of the report, emphasis will be only on
two of the three main European countries east of the Mississippi;
England and France.2
The peace that was bounded by the marriage of Pocahontas with
John Rolfe was short lived. The English soon learned the cost of
ignoring Indian rights. This lack of respect for the Indians led to the massacre of 1622. The Indian was accused of being 2 treacherous and barbaric during the latter part of the 17th century due to the massacre.3 The heads of each English settlement dealt with the Indians in order to guarantee the coexistence of the two and to prevent an Indian uprising such as the one in 1622.4
Not until the second half of the 17th century were there any significant Indian wars. The first was 1n New England and became known as King Philip's War. The second war was in Virginia and is known as Bacon's Rebellion. These wars were caused mainly by the diminishing negotiating powers of the Indians. As the English numbers grew they began to outnumber the Indians and their negotiating powers began to suffer.5
TI1e Indian negotiating powers was strengthened with the
French intrusion into the land east of the Mississippi. The presence of the French colonies in the area angered the English, but at the time there was little they could do. The powerful
Indian nation played both sides and both sides attempted to buy the Indian loyalty. The main Indian tribes caught between the
French and the English were; the Cherokees, Chectans, Chickasaws, and Creeks. It is reported that by the mid 18th century the King of England was sending as much as 3,000 English pounds worth of presents to the Governor of Georgia and South Carolina for the
Indians of the Southe&st. The Europeans vie~;ed the presents as a means to arm the Indians against a common foe. On the other hand, the Indians probably viewed such gifts as protection money to
(}0004 3 insure against the power of the Indian.6
Eventually the continued strained relations between the
French and English led to the French and Indian War of 1756. To assure direct control of the Indians the King of England appointed
two superintendents of Indian Affairs. One was in charge of the
Indians in the Northern colonies and the other of the Southern
colonies. Their duties were to keep the peace, negotiate
treaties, and report to the crown the Indian affairs. 7
The Indians became either an important ally or fierce foe.
Their ferocity was evidenced by the attack on General Edward
Braddock who was attacked by over six hundred Indians and two
hundred and twenty French soldiers.B It is said that most of the
Indian tribes were quick to join the French due to their repeated
victories and smooth talking French representatives.9
On the other hand, most of the problems were solved by
William Johnson as superintendent of Indian Affairs for the
Northern colonies. He was instrumental in preventing complete
chaos. After the attack of Braddock near the Mononghalea River,
Johnson was quick to prevent most of the Iroquoi Indians from
joining the forces of Montcalm.10
The Indian superintendent for the Southern colonies was
Edmond Atkins. Although historians regard Atkins as a failure, he
was instrumental in recruiting Indians to aid George Washington 1n
1757. In 1758 he recruited aid from the Indians for General John
Forbes.ll The importance of the English Indian superintendents 4
1n the French and Indian Wars is immeasurable. The superintendents were instrumental in guaranteeing the victory of their countrymen. This was due in part to the English Government allowing them to supply and deal with the Indians.l2
Against popular belief scalping their enemy was not an Indian custom. Scalping came about due to the English colonists offering a reward for the head of their enemy and it was easier and more convenient than bringing the entire head of their enemies.
Scalping became widespread due to the French and Indian War.l3
With the close of the French and Indian war, Indian independence came to an end. However, it was until 1766 before the English were able to secure peace with the Indians. The wars increased the hatred of the Indian by the English colonists. At the end of the war the King of England passed a proclamation of
1763 closing the lands beyond the Appalachjan Mountains to white settlers.l4 The proclamation is of importance because it gave the King•s approval to the Indian•s claim of sovereignty and validated the custom of buying land from the Indians.l5
The war had long term consequences for the King of England, it eventually led to his loss of the new world. The closing of the land beyond the Appalachian Mountains and high taxes brought about by the expenses accumulated by the war helped lead to the
American Revolution.l6
The American Revolution gave r1se to the American Indian
Policy. The colonists were quick to appoint commissioners to deal
000f;6 5 with the Indians. Since the colonists were scattered throughout the new world they had more to loose from the Indians adherence with the side of the crown. The Continetal Congress appealed to the Indian to remain neutral. On the other hand, Britain attempted to enlist the Indians against the Americans.l7
The American Indian Policy was to attack hostile Indian nations, burn their crops and villages until they learned to mend their evil ways.l8 The Americans resented the Indian assistance to the crown and sought vengence for years to come. Again as with the French and Indian War, many of the Indians chose the wrong side. At the end of the war Indian's rights were not represented at the Peace of Paris of 1783. At the conference
England relinquished its claim to the government and territories of the United States. There has never been doubt that England held title to the lands, "subject to the Indian right of occupancy."l9
The Articles of Confederation, Article IX, gave Congress the exclusive powers of managing Indian Affairs and trade. The need to assure the Federal Government had sole power to deal with the
Indians and not have the state interfere was a necessity. This issue is evidenced by the enactment of the Ordinance of 1786. The
Ordinance gave Congress the sole right to regulate Indian Affairs under the Articles of Confederation.20 However, the state continued to sign treaties with the Indians in violation of the
Ordinance. The Ordinance stated that, 6
The utmost good faith shall always be observed towards the Indians; their land and property shall never be taken from them without their consent; and in their property, rights, and liberty, they shall never be invaded or disturbed, unless in just and lawful wars authorized by Congress; but lands founded in justice and humanity shall from time to time be made, for preventing wrongs being done to them, and for preserving peace and friendship with them. 21
The Treaty of Hopewell guaranteed the Cherokees that the white man would not infringe on their lands. However, within two years the treaty was violated and Henry Knox, Secretary of War under the Confederation, asked Congress to honor its commitment to the treaty. Congress issued a proclamation, but it failed to meet its obligation under the treaty. The Indian powers enabled them to keep encroachments by the settlers in check during the 1790's.22
The treaty of Hopwell was the first diplomatic relations between the United States and the Cherokees. The Cherokee Indians occupied the land along the Tennessee River and land in Alabama,
Carolina, and Georgia. The need to deal with the Cherokee was great due to the damages that two thousand warriors could cause.23
The encroachment of Cherokee lands, guaranteed by the treaty created a tense situation. The Cherokees demanded that the settlers be removed but the United States Government conceded that they could not remove them since they were numerous. When told of this policy, one of the Cherokee chiefs asked, "Are Congress, who conquered the King of Great Britain, unable to remove those people?"24 7
The Senate of the United States resolved that either the treaty be honored or a new treaty be made at the discrection of the
President. Eventually the Cherokees accepted payment for the lands that were encroached by the settlers. In July 1791, the treaty of Ralston established new boundaries and promised to pay
$1,000 a year for the lands relinquished. The treaty stipulated that the Cherokees could punish any settlers that settled on their land as they pleased.25 In 1794 another treaty was made declaring that the Ralston treaty was in force.
By 1801 it was necessary to obtain the acquisence of the
Cherokee to establish a new boundary. It was four years later before the Cherokees agreed to a new treaty in which they ceded
Indian territory to the United States. The treaty stipulated that
the Indian receive $18,000 a year.26 Again in 1816 and 1817 the
Cherokee Indians ceded land to the United States Government.
The treaty of 1817 gave to the head of each Indian family east of Mississippi River a 640 acre life estate with remainder to their heirs. The once powerful Cherokee nation that ov1ned mass lands between the Mississippi River and the Appalachian Mountains were reduced to a few acres per family by 1817.27 However, the
Indians made the best of the situation. They had divided their territory into districts with a local government, judge and police force. The supreme authority of the Cherokee nation was the national committee. Also, they had schools in the villages and 1n some areas they had missions. In fact the Cherokees had their own 8
constitution and their nation was flourishing. They had become a
civilized nation.28
The Georgia Legislators were outraged that the Indians were
enacting laws in their state and passed a law in 1829 to deal with
the matter. The law voided all laws and ordinances passed by the
Cherokee nation. The Georgia governor demanded that the United
States Congress force the Cherokees to give up their lands.29
The Cherokee Indians were faced with another dilemma. They
had followed the white men's way and they still faced extinction
from their homeland. President Jefferson had promised the Indians
that they could count on the assistance of the United States in
their attempts to set up a government with laws and industrious
occupation. 3D George Washington had promised that they will not
be defrauded of their lands in the future. He told the Indians
that no state could purchase their lands without a treaty under
the authority of the United States Congress.31
Once again the Cherokee Indian turned to the white man for
.. the promised protection . They filed suite 1n the United States
Supreme Court to restrain the State of Georgia from interfering • with their nation. The Court heard the case of the Cherokee
Nation vs. the State, 30 U.S. (5 Pet.) 1 (1831). The Court decided
that they did not l1ave jurisdiction. The rational was that the
Cherokee Indians could not be considered a foreign nation although
they were a nation: hence, could not bring suit in the United
States Supreme Court.32
00010 9
The United States Supreme Court ruled that the Indian tribes were a self-governing entity. The Court voided the State of
Georgia's acts in trying to exercise jurisdiction over the
Cherokee territory. The Court came to this conclusion in Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). The United States Supreme
Court ruled in the Cherokee's favor finally, but did not have the power to enforce it. Only the President had such power and Andrew
Jackson refused to enforce this ruling.33
The Cherokee nation found themselves at the mercy of the
State of of Georgia. At the end they had no choice but to cede all the land east of Mississippi to the United States in 1835.34
Sixty years after the American Revolution the Cherokee nation los: its homeland. Many of the Cherokee refused to move from their homeland and declared that they did not participate in making the treaty. As always their cries fell on deaf ears and they were forcefully removed from their homeland.35
The forcefull removal became known as the "trail of tears" where 16,000 Cherokees were moved to the territory west of the
Mississippi River to what is known today as Oklahoma. Most of the past presidents had a sympathetic ear for the Indians, ho~ever,
President Andrew Jackson, the great Indian fighter, felt little for the Indian plight.36
Many of the Indians who signed the treaty to remove them from their lands were found murdered. They were intimidated into signing and in some cases they were not even the tribal officials. 10
The American officials used threats, liquor, bribery and force to attain their signature in the removal treaties. As always the
.. American fork tongue .. guaranteed the Indians freedom from white intrusion, in their new lands.37
Within twenty years the Cherokee people had twenty two schools and two schools where higher education was taught. Also, they printed a weekly newspaper partly in the English and Cherokee languages. They formed an established government and a solid judicial system. Again the white settlers began to invade the
Cherokee reservations, but this time the squatters were the ones dislodged from the Indian lands.38
The Cherokees sided with the Confederacy during the Civil
War. The thought of fighting against Georgians probably led the
Cherokee to help the Confederates. The United States Government suspended further payments to the Indians but the Confederate
Government was quick to step i~ and promise to make the suspended payments. However, about half of the Creeks, many Chickasaws,
Seminoles, Quaspaws, Cherokees, and others fled into Kansas in order not to choose sides during the war. As always the Cherokee nation lay in ruin at the end of the Civil War.39
The war left bad feelings between the Cherokee Indians that joined the rebels and the ones that fled. After the ill feelings were dealt with, the Cherokees set out to rebuild their nation. by
1869 the Cherokee nation was firmly re-established and their schools and agriculture econo~y were set.40
(}()(}12 : l
In yet another treaty the Cherokee exchanged 7 million acres for the territory in which they were living. In the desire to guarantee the Indians their lands, the United States Government issued them a patent for their territory. In just six short years the Department of Interior asked if a mass section of our country was to lay uncultivated or whether the government was going to reduce the reservations.41
Despite of all the hurdles the Cherokee nation was civilized and prospering by the turn of the century. They had established
seventy-five schools and two seminars for higher education. Also,
they had over one hundred stores and shops and a constitutional
government with their laws printed in book form. As one author
states, "What required five hundred years for the Britains to
accomplish 1n this direction they have accomplished in one hundred
years. u42
The Delaware Indians suffered greatly under the white man's
rule. They were originally called Lenni Lerope, or "original people." The Western tribes called them Wapenachitei "people of
the rising sun." Like the Cherokees they sided with the French in
the French and Indian War. Also, during the American Revolution
the Delawares were allies with the English.43
The first diplomatic relation between the Delawares and the
United States concluded in 1778, at Fort Pitt. In the treaty they signed, like the treaty with the Cherokees, the United States guaranteed the Delaware and t:1eir heirs their territories. 44 12
Like the Cherokee the Delawares fought on the British side against the Americans. After the war they were forced to make a peace treaty where the chiefs who sided with the Americans were reinstated as heads of their nation. Five years later, another peace treaty was signed in which the Indians ceded more land to the Americans. However, the Indians received the right to hunt on the lands reserved to the United States.45
By 1793 there rose again boundry disputes. The Delawares wanted the United States to g1ve the intruding settlers the money set aside for the Indians. They figured in this way the intruders would be encouraged into moving of Indian lands and there would be peace again among whites and Indians. Since the proposals from both sides were unacceptable there was to be war. Ironically, by war the United States was forcing the Delawares off the land previously guaranteed to them. The Indian villages were burnt and so were their crops.46
Finally, the Delawares and eleven other tribes sued for peace. The treaty of 1795 ceded about 2/3 of what is known as the state of Ohio today to the United States. Again as before the
Indians were guaranteed th~ir lands. They were also told again they could deal with intruders any way they wished. It seemed by now the Indians would know that such promises were worthless.47
In the next ten years the Delawares ceded more land in at least two other treaties. In 1809, 1813, and 1817 more land was ceded by the Indians to the United States. In the treaty of 1817, 13 the Delawares ceded all their claims to the territories of Ohio,
Michigan, and Indiana. This treaty far exceeded the expectations of the Indian Commissioners. By the treaty the Indians had surrendered almost all their hunting grounds and would have to turn to agriculture for survival. A short year later in 1818 the
Indians ceded their claims to Indiana and the United States promised them a reservation west of the Mississippi. Again they were guaranteed a peaceful possession. The United States also promised to give them $4,000 a year plus all the monies promised
1n past treaties.48
In 1829 the government guaranteed to secure forever the land
1n the fork of the Kansas and Missouri River, because of their agreed removal. They also agreed to provide the Indians with a saw mill in their new land. By 1833 there were less than five thousand Indians living east of the Mississippi River due to the
Removal Policy.49
By 1838 the Delawares were cultivating over one thousand acres and raising cattle in their new land. In a few short years they had made arrangements for the Indian Manual Labor School to receive school funds for the benefit of their children. Within twenty years of their removal they were a prospering civilized nation in which they had log cabins, a good agriculture economy, and schools for their children.SO
Once again 1n 1854 the Indians ceded land to the United
States Government. In 1860 they ceded land to the railroad in 14 which they were fcrced to accept bonds for payment. The mon1es received were to be managed by the Secretary of the Interior for the good of the Indians. In one instance the bonds while in the hands of Jacob Thompson, Secretary of Interior, were stolen and the United States Congress had to credit the Delawares over
$400,000. The Indians were robbed not only by the white settlers, but by their guardians, as seen in the case of Jacob Thompson.51
During the Civil War the government failed to protect the
Indians and hence Indians were intimidated into joining the rebels. By failing to protect the Indians the United States breached its obligations under the treaty. However, the Americans viewed the Indians as the ones who breached the treaty for joining with the rebels. However, the Indians probably joined the rebels solely for self-preservation reasons.52
At the end of the Civil War the Delawares that joined the
Union were sent home. They were rewarded with yet another treaty in 1866. In this treaty all Indians that refused to become Kansas citizens were removed to another reservation and their lands sold.
After their removal the Delawares were to be identified with the
Cherokee, since, they now lived on the Cherokee reservation.53
The Cheyennes first relation with the United States was in
1825. In that treaty the Cheyennes acknowledged the supremacy of the United States. The Cheyenne were a nomadic tribe that followed the great horse herds. At times their numbers grew close to fifty thousand and included the Gros Ventrer, Mandans, Poncas,
tl(J016 15 and Souix tribes.54
The upper Missouri Indians allowed the United States to establish ports and roads through their country, but did not g1ve up title to their land. However, title was forsaken in the treaty of 1851. Also, the government promised to pay them $50,000 a year
for the next fifty years which came out to be about $1.00 a year per Indian for fifty years. However, the senate changed the treaty to stipulate fifteen instead of fifty years without seeking
the consent of the different tribes.55
By the mid 1850's the upper Missouri Indians asked for help
1n order to learn how to farm in order to feed their starving
familes. However, before they could receive an answer, hostilities between the Indians and white man increased. It was
not until 1861 before a peace treaty was worked out and if it were
not for the demands of the Civil War the United States would not have settled for peace. Although the United States agreed to
settle the dispute, the Indians once again were the losers. They
ceded some of their lands and received $30,000 a year compensation
for a period of fifteen years.56
At this treaty meeting the Arraphaoes and Cheyennes attended; however, not all of the chiefs were present and the Indians attempted to stipulate that the treaty only bounded the individual
tribes. The Indians gave up lands in which rich minerals were discovered. The government in turn promised to supply them with equipment needed for agriculture. However, the equipment was 16 never delivered. The Indians had to turn to pilfering equipment and goods from the wagon trains crossing their lands.57
The Governor of Colorado issued a proclamation inviting all friendly Indians to places of designated safety. As the tribes arrived they were assured of safety from attacks but on the morning of November 29, 1864, the Indian 1n their safety camp were surprised and massacered. The Indians that escaped joined to
fight with Northern tribes in what was to be a terrible war. The
following year the Indians finding a commissioner they trusted
agreed to meet to see if they could work out the bad feelings
brought about by the Sand Creek Massacre. The Commissioner, I.H.
Leavenworth, joined Colonel Bent, and Kit Carson at the meeting.
The Indians felt at ease being among these people which they
trusted. The commissioners were to make amends with the Indians
for damages received at the Sand Creek Massacre. Each women that
lost a husband was to receive one hundred sixty acres and each
child that lost a father or mother was also to receive one hundred
sixty acres. A new reservation was to set aside for the Cheyennes
and Arapahoes. The Apaches, Kiowas, and Comanches were also to have the same benefit of the treaty.58
The peace treaty had a short life due to the United States
Government failure to comply with the treaty provisions. By 1875
the hostilities ended with the surrender of the main body of hostile Indians. The Indians were forced to remain close to their
camps due to the hostilities. They suffered greatly for lack of
ooma 17 rations, because they could not go hunting.59
In 1877 the Northern Cheyenne were removed to the Cheyenne and Araphohoe reservations. Supposedly these hostile Indians asked to be moved to the reservation. As time went by the
Northern Cheyenne became restless with reservation life.
Eventually a band of about three hundred attempted to make their way back to the Dakotas. They soon were captured and most of them were massacred. Many of the survivors were taken to the Sioux reservation on request of the Sioux chief.60
A Senate investigation into the massacre and treatment of the Indians found that the Cheyennes were starving at the time of the massacre. The commissioners were found to have stolen Indian supplies and were disgraced. However, the Northern Cheyennes were the ones who suffered a great injustice at the hands of the commissioners. Because they had left the reservation they were sought out and killed. It is ironic that the Northern Cheyenne did not even hold title to the reservation they were on.61
The Sioux Indian called themselves "Dakota" as 11 many in one".
The name Sioux is a contraction from a French word meaning
11 Enemies", given by the French to the fiercest of all the North
Western Tribes.62
Diplomatic relations between the Sioux and the United States began in 1815. Three treaties were made that year with three different Sioux tribes. They were made with Sioux who shoot in the pine tops, Sioux of the Broad Leaf and Sioux of the Leaf. 18
These treaties did not cede any land to the United States in them and the Sioux agreed to abide by grants given to the French,
Spanish and English Governments and to confirm such grants with the United States.63
There were four more treaties made in 1825. The treaty of
1830 led to many wars and problems between the United States and
Sioux. In this treaty land between the Des Moines River and the
Mississippi was ceded to the United States. The treaty was made
without all the Sioux tribes being involved and it reputed to bind
the absent tribes. Treaties made without proper representation
were a cause of bad feelings among the Indians.64
In the next ten years a ser1es of treaties were made with
Sioux, and other Indian tribes west of the Mississippi River. The
following ten years were one of trouble for the Sioux since they
continuously fought with the Otlawas, Chippewas and other tribes.
The governments attitude was as long as the Indians fought among
themselves they would not disturb the peace of the frontier
settlement. By the mid 1840's some of the Sioux tribes were
reduced to starvation due to wars and failure of corn crops.
Also, the failure of the government to give Indians their annuity payments for ceded land played a major role in their
state of being.65
A major treaty was made with the upper and lower tribes of
Sioux in 1851.66 In that treaty the Sioux ceded thirty five million acres. The terms specified that 2~ million dollars were to be 19 held in trust and the Indians were to paid the 5 percent interest
a year for a period of fifty years. At the end of fifty years
the principal was to revert to the United States Government.
The treaty also stipulated that a reservation was to be set aside
on the top of the Mississippi Valley for the Minnesota Sioux. The
United States Senate amended the treaty and did away with the
provision that allowed for the reservation on the Western border.67
In the next few years the Sioux and the settlers lived in
peace. The Indians prospered and some turned to agriculature.
However, the following year the Indians were starving and had not
yet received their annuity payments. They were frustrated and
tired of hearing promises. They went on a rampage that killed
over a thousand settlers. The military was able to put down the
rebellion, but it was not until the end of the Civil War
before there was to be complete peace in the area.68
Meanwhile, the friendly Sioux Indians suffered greatly and
were not given their annuities because of the Indian wars. To
make amends the government moved them to a reservation in
Nebraska. By 1867 they were moved twice aga1n. The Ogallalla
Sioux were also moved a total of eight times since 1863. The
Spotted Tail Sioux tribe also agreed to move (to the Ponca
reservation) only because their winter supplies were dwindling
where they \\'C re at. In 1877 over fourteen thousand Sioux Indians
were moved from Nebraska to a reservation near the Missiour
River.69 20
The last great Sioux War was in 1876. ~~ile the settlers were invading the Black Hills, Sitting Bull was quoted as saying,
"Tell them at Washington if they have one man who speaks the truth to send him to me, and I will listen to what he has to say."70
That same year General Custer and the 7th Calvary were wiped out by the Oglala Sioux under the leadership of Crazy Horse. After the war Sitting Bull escaped to Canada. The following year the
United States Government sent a comm1ss1on to invite him and his people to return to the reservation. They refused, because in
Canada they could make a living trading with the traders and their women could raise their children in peace.71
The last major Indian massacre was at Wounded Knee there soldiers captured a band of Sioux who had left the reservation.
The Sioux had left the reservation in fear of their lives when a medicine holy man was murdered by the government. The holy man was murdered because of his involvement with the sacred ghost dance that was greatly feared. After the band of Sioux was captured and disarmed, the soldiers systematically slaughtered them. The soldiers ruthlessly left the wounded to the mercy of a blizzard.
There were no survivors. To add salt to the wound of the Sioux the United States Congress gave out over twenty medals of honor to the "brave soldiers" of the 7th Calvary who participated in the rna s sac!-e. 7 2
The Iroquois Indians are also referred to as the the Six
Nations v.•hich was a confederation of different tribes. Critics 21 have suggested that the Article of Confederation were influenced by the Iroquois model of government. Benjamin Franklin wrote to a friend:
It would be a very strange thing if Six Nations of ignorant savages should be capable of forming a scheme for such a union and be able to execute it in such a manner, or that it has subexisted for ages, and appear indissoluble: and yet that a like a union should be impractible for ten or a dozen English colonies, to whom it is more necessary and must be more advantageous and whom cannot be supposed to want on equal understanding of their interests.73
Sir William Johnson, the British representative to the
Indian, felt that if the British had properly armed the Six
Nations they would have pushed the French out of Canada in the
17th century. He noted that in the 17th century the Iroquois
Indians had conquered the Miamis, the Indians in Ohio, the Western
Indians, Delaware, Shawnees, and Wyandots. All of the conquered
Indians were formed into an alliance and were allowed to stay in their lands. The alliance also allowed most of them to live in peace.74
A quote from Sir William Johnson adequately shows the extent and influence of the Six Nations. He stated:
As original proprietors, the Confederacy claim the county of their residence, South of Lake Ontario to the Great Ridge of the Blew Mountain, with all the Western part of the province of New York towards Hudson River, West of Coats Kill, theGce to Lake Champlain, and from Regioghne a RocK at the East side of said lake to Oso~-~gatche on La Gattell on the River St. Lawrence (having long since ceded their claim North of said line in favour of the Canada Indians as hunting grounds) thence up the River St. Lawrence and along the South side of Lake Ontario to Niagara. 22
In right of Conquest, they claim all the country (comprehending the Ohio) along the Great Ridge of Blew Mountain at the back of Virginia, thence to the head of the Kentucky River, and down the same to the Ohio above the Rift, thence Northerly to the South end of Lake Michigan, then along the eastern shore of said lake to Missillimachinac, thence easterly across the North end of Lake Huson to the Great Ottawa River (including the Chippawae or Missisagey Country) and down the said river to the Island of Montreal. However, these more distant claim being possessed by many powerful nations, the Inhabitants have long begun to render themselves independent by the assistance of the French, and the great decrease of the Six Nation; but their claim to the Ohio, and thence to the Lakes is not in the least disputed by the Shawnee Delawares ette, who never tra~s&cted any sales of land or other matters without their consent, and who sent deputies to the grand council at Onondaga on all important occasions. 75
The Six Nations consisted of the Oneida Indians, Mohawk•s,
Cayuga, Onondoga, and Seneca Indians. The Tuscaroras settled in the Six Nations land and came under their protection. The Six
Nations also took over managing the affairs of the Delawares. The power of the Six Nations were in their numbers and for them conquests meant more allies, not land.76
The Iroquois Indians were backed by the English in their quest in bringing other tribes into their league through conquest.
The British aided the league because it could not afford to fight or alienate them. The Ottawa Indians among others had continued to fight the British after the French and Indian War. the Ott2\{as and the British did not come ~o terms till 1766. This war between the British and the different tribes was called the Anglo Indian 23 War of 1763-65.77
The Shawnee Indians differed with the Six Nations who wanted to sell Shawnee land to the white settlers. However, the Shawnee soon gave in at the meeting with the British commissioners. This showed the power and dominance of the Six Nations over the other
Indian nations and with the aid of the Six Nations the British colonies gained more land. Supposedly, the Six Nations were willing to help the British 1n return for putting an end to the boundary disputes once and for all. However, history shows us that this was not the case. 78
The American Revolution brought on American Indian policy into play. The British policy focused on getting the Indians to help fight the rebels, while the American Policy was to try and talk the Indians into remaining neutral. However, nuetrality was not to be achieved. Most of the Northern Indian tribes fought on the side of the British. Even after the American Revolution several tribes continued fighting against the Americans. It was to be many years before the ~ar with the Indians was over.
The end of the war brought a demise in the dominance of the Six
Nations. But, it was not until the 1790's before the Six Nations lost most of its ability to negotiate for the other tribes including the Dela~~Lt~ ~~: ~·i~~i~.79
The Nez Perces were visted by Lewis and Clark who found them to be the richest and nobelest of the tribes. These Indians lived west of the Mississippi all the way west to what is now Oregon. 24
The Nez Perces were nomadic 1n nature and moved around from place
to place.
In 1835 the Methodist Episcopal Society sent missionaries to
teach the white man's religion to them. The Indian welcomed the
missionaries with open hands. Some travelers even reported that
they had witnessed Indians practicing Christianity.BO
In 1843 the Indian Bureau sent an investigator to meet with
the Nez Perces. During this visit the Indians wrote down a set of
laws to be followed. The agent was irnpresed with both the wealth
of the land and hospitality of the Nez Perces. The agent reported
that beside the Nez Perces, there were the Walla Walla and t~e
Cayuses tribes in Oregon. A report sent horne by a missionary
reported of the progress the Nez Perces had made. One hundred of
the Nez Perces were able to print and read and were being used 1n
helping to teach the other Indians.Bl
In 1847 all the missions were abandoned 1n Oregon due to
the massacre of some rnisssionaries by the Cayuses. Although the
Nez Perces Indians did not have any missionaries to teach them
they still practiced their religion according to a report by a
traveler in 1853. There was wide spread dissatisfaction among the
Nez Perces \vith the false promises made by the white man. In 1855
there was an outbreak of Indian hostilities. However, the Nez
Perces remained friendly although they were pressured to ~oin the
hostile Indians or face extinction. The hostilities ended in
1856.82 But the peace was shortlived for by 1858 another Indian 25 war was at hand. This time the Nez Perces decided to fight on the side of the United States. They proved to be of great help and even saved some troops that were surrounded by hundreds of hostile
Indians. It was not until 1859 before there was peace in the region again. After a peace treaty was signed the Senate was quick to ratify the treaty of 1855 in order to pacify the
Indians.83
The Nez Perces were g1ven a reservation that was sixty miles wide and one hundred miles long and the land was an excellent tract. The peace in the new reservation was shortlived for this time the foe of the Nez Perces was gold that was discovered on the reservation. It is a miracle that the Indians were able to resist the temptation of driving the miners off their land. As can be predicted the United States did not come to the aid of the
Nez Perces in the intrusion of their lands.84
In the treaty of 1863 the Nez Perces gave up all their lands except a reservation that they agreed to live on. The Indians still trusted the white man except that the non-payment of their annuties caused them great concern and mistrust. The Governor of
Idaho was concerned that if the Indians were not appeased or dealt with better there would be grave consequences in the region.
Since the reservation was not surveyed intrusion of the reservation land was a common occurence. It was not till 1870 before a survey of the reservati~n land was rnade.85
The settlers were upset that the Indians received such good
()()fl!~~ 26 land.86 They seemed to forget that the land orginally belonged to the Indians. The Nez Perces reservation was created by executive order. Two years after the President of the United States gave them the reservation in Idaho. President Grant revoked the order changing the Nez Perces reservation to Oregon. Eventually Chief
Joseph gave his consent and his people moved to a reservation in
Oregon rather than fight the whiteman. It is ironic that Chief
Joseph never gave the lands they owned 1n Idaho to the United
States or signed a treaty with them. The treaties had been signed by other Nez Perces Indians but never by Chief Joseph's people.
The Nez Perces despite their loyalty and support of the United
States during Indian wars have been treated harshly by the
American people. Their homeland has been taken away and now they are forced to live on a reservation 1n Oregon.87
The Poncas resided in Missouri on the Poncas River. They were once a prosperous nation that was reduced to a state of oppression by the Sioux nation. Poncas were attacked by the Sioux on the North, the Osages and Kozos on the South, and the Pawnees on the Western boundary. From the East they had to contend with the advancement of the white settlers who brought with them alcohol and small-pox, which had already contributed to the death of over half of their nation.88
The first treaty the Poncas made with the United States was
1n 1817 it declared the friendship of the Poncas to the United
States. The second treaty was made in 1825. In this treaty the 27
Poncas conceded to the supremecy of the United States and agreed to be under their protection. In 1858, the Poncas and the Yankton
Sioux ceded all their lands to the United States except a small tract in which they were to live. The Senate was slow in ratifying the treaty and the Indians did not receive their annuities as promised. This fact along with failing crops left the Indians in a state of near starvation. The Indians threatened to move back to their lands and the government was forced to feed the Indians in order to prevent their starvation. The following year the Senate ratified the treaty and in the first year the
Poncas received $20,000 to help them build buildings on their reservation, mills, equipment, and schools. However, once again the Indians were in a state of starvation before the year ended and the Indian agent had no funds to help them. Since all their
funds for that year were exhausted, some of the Indians sought the aid of the Omaha and Pawnees tribes.89
In 1863 the Indians were ordered to stay on the reservation but this was not an easy task. How could the agents keep the
Indians on the reservations with not food to eat? The Agent reported families not eating anything for days but dried up corn stalks.
The same year soldiers form Company B of the Seventh Iowa
Calvary murdered some Indian women and their children. The government was unable to determine who killed tt1e Indians, so they indemmified the Indians for their loss in the amount of $15,000. 28
It is hard to understand how the government determined the value
of the lives of the murdered Indians, but they did.90
It was not until 1868 that the Indians of the Poncas nation
had a school on their reservation. However, by the following year
the school had closed due to the lack of funds. The Indians did
not have a school again until 1872. The following year was one
of most suffering for the Poncas. The River overflowed due to the
rains and destroyed their crops, so the Indians had to move the
buildings about half a mile in order to save their village.
However, by the next year the Indians recovered greatly and
prospered. They had over a hundred heard of cattle, land under
cultivation and many wagons.91
Two years later, in 1875, disaster again struck as Locusts
destroyed the crops except for the wheat. However, the wheat died
before it could be picked. The same year Poncas were murdered by
a party of Santee Indians and the Santees were apprehended.
However, the courts released the Santees for want of jurisdiction.
The reason for the release was the judge did not have jurisdiction
over crimes in the Indian country.92
The following year the Indian Bureau decided to do away with
some of the reservation by consolidating the Indians. The agent
lured the Poncas chiefs to the Indian territory with a promise
that if they did not like the country, they did not have to move
their nation there. However, once the Indian chiefs were at the
reservation the agents told them they must remain there and order
• 29 the rest of their tribe to move there. The chiefs refused and the agents abandoned them without food or water inside the Indian territory. The Poncas lost all sense of where they were. They walked barefoot in the snow and fifty days later, half dead, reached the Otoe Reservation. The Otoes helped them gain their strength and gave them each a pony. The following week the Poncas
reached the Omaha Reservation and told the agent the story of how
they were promised if they did not like the land they would not have to move and could go see the President of the United States
concerning a new reservation. Also, they told the agent of how brutally their agent left them there on the reservation to die for
refusing to move to the new land. They sent a telegram to the
President with the help of the agent, but received no answer. A
few days later they reached their people and Chief Standing Bear
and Chief Smoke were arrested for refusing to move. There the
Colonel in charge heard the story and was shocked to hear of how
the agent treated them on their trip to see the lands at the
Indian reservation. The colonel wired the President to find out
what he could do, but the President answered that he had no knowledge of their predicament.93
The following week the Indians were forced to leave their homes and forced to march to the new reservation. Many of them died on the march including two members of Chief Standing Bear's family. After reaching the new land, Chief Standing Bear and thirty members of his nation left and went to the Onaha 30
Reservation. At the Omaha reservation they were given land to
farm. However, soldiers came for them but this time Omaha lawyers
took the government to court. The Omahas filed suit in the name
of the Poncas to test the right of the government. The judge of
the District Court Nebraska ordered the Poncas release. The
government attorney argued that since the Indians were not
citizens under the law they were not entitled to the protection of habeas corpus.94
When Chief Standing Bear realized that he was free to go he
stated that in the past when Indians were wronged they would go to
war with the tomahawk. Now, the Chief stated, there is a better
way, the courts. The Chief saw no need for the use of his
tomahawk and layed it down on the floor. He then picked it up and
gave it to Mr. Webster, his lawyer, since he no longer need it.95
With his new found freedom Chief Standing Bear journeyed to
the Eastern cities. There he told crowds of the suffering and bad
treatment of this tribe by the government. Money was raised in
the cities to file suit against the United States in order that
Indians could assert their right to their reservation in Dakota.
Eventually the authorities in Washington took notice of Chief
Standing Bear's actio~ and denied his assertions. Moreover, the
Department of the Interior, which was 1n charge of Indian affairs,
refused to allow the Poncas to return to their lands. In the city
of Boston a co~mittee was formed to push for favorable legislation
in Washington for the Poncas. In Washington the Chief impressed
} .,.., .• " ., 31
Congress and an investigation was launched. congress heard testimony from people such as Chief White Eagle, of the Poncas, who had lost his family on the forced march. This testimony \vas vital in helping to secure legislation to restore the Poncas back to their Dokata Reservation.96
The last Indian nation mentioned 1n this paper are the
Winnebagoes. The Winnebagoes lived alongside the Wisconsin River and were named Winnebagoes by the Algonguines. Their first treaty with the United States was 1n 1816. In this treaty they acknowledged .. peace and friendship .. with Congress. In order to keep the Indians from fighting among themselves, the treaty of
1825 was made to procure peace between the different tribes. Two years later, in 1827, the Menemonies, Chippewa and Winnebagoes signed a treaty with the United States that outlined the boundaries of their tribes. The United States payed the different tribes a total of $20,000 to compensate them for the damages caused by the intrusion of the white man.97
In 1832 the Winnebagoes were forced to cede territory to the
United States. In exchange they were g1ven some land west of the
Mississippi. By 1846 the Winnebagoes were given 800,000 acres west of the Mississippi River. In return the Indians ceded any rights and titles to other lands held by them. This proved to be a bad choice for them since reservation life was not suited for them. In 1855 they quickly ceded this unsuitable land for a reservation on the Blue Earth River. A treaty named this
- 000~1 32 reservation as the Winnebagoes permanent home and they rejoiced.98
The treaty also gave the United States President the right to change any treaty the Winnebagoes had made for their own welfare.
The allotment of the Winnebagoes• land proved to be their downfall because they were soon surrounded by white settlers. The settlers brought whisky with them and this caused problems for the Indians.
Also, the Winnebagoes were blamed for joining hostile Sioux that massacred several white settlers. Due to the massacre the people of Wisconsin cried out for the Winnebagoes removal. The settlers• desire to attain the Indian•s lands probably had a lot to do with the movement to remove the Winnebagoes. The outcries of the settlers were adhered to by Congress which ordered the Winnebagoes• removal from Wisconsin to the Missouri River.99
The removal of the Winnebagoes was a harsh result for they were moved form prosperous farms to the reservation. The new land proved to be a barren wilderness and hard to plant crops due to the drought that had hardened the soil. The Winnebagoes built canoes and fled to the Omaha Reservation seeking food since they were 1n a state of starvation. More than half of the Winnebagoes escaped to the Omaha Reservation by 1863. In 1865 the United
States agreed to allow the Winnebagoes to remain on the Omaha
Reservation in Nebraska. They ceded all their rights in the
Dakota Reservation to the United States and the United States 1n turn bought 128,000 acres from the Omahas for the Winnebagoes.lOO
In 1870 the government allotted land to the Winnebagoes
(}()f);llJ 33 and in five short years they prospered. They cultivated their lands and had homes like the ones in Wisconsin. The Winnebagoes story up to the 1870's was one of suffering and starvation; however, 1n the early 1860's they prospered in Wisconsin until
their forced removal. Their removal led to more suffering and
starvation. The government even made the Winnebagoes pay for
their forced removal out of their funds and refused to reimburse
them. The complaints of the Winnebagoes chiefs went
unanswered.101
The Trade and Intercourse Act of 1790 was passed in order
for the federal government to assert its sole control of Indian
Affairs and pressumably to protect the Indians. Its objectives
were also to insure an orderly advance of the frontier and to
guarantee against state or private encroachment of Indian lands.
The Act protected the Indian rights to their land. It gave the
United States control of disposition of Indian lands. In other
words, any treaty for land between the Indians and a state or private individual was considered void. New York, among other
states, acquired land from the Indian through treaties in direct
violation of the Intercourse Act. In many instances New York was
warned by the United States Government that they first had to
ratify the treaty before the United States Senate. The
Intercourse Act also gave the United States power to regulate land with the Indians and control liquor traffic 1n Indian lands.
There were two other provisions of importance, one provided for 34 the punishment for Indians and white settlers who commited cr1mes.
The other provision provided for the promotion of Indian civilization and education in the tribes. The Trade and
Intercourse Act of 1802 made these provisions permanent acts governing Indians.102
The Appropriation Act of 1862 gave the President the power to declare treaties with hostile Indians abrogated at his discretion.
The Appropriations Act of 1871 brought an end to the treaty making between the United States and the Indians. The end of the treaty
making power also marked the end to the formative era.103
The hardships suffered by Indians led to a reform movement.
Stories of suffering told by Chief Standing Bear gave the reform
movement the publicity it needed to gain wide spread public
support. Groups such as the Christian Women, who later called
their organization the Women's National Indian Association, were
instrumental in passing reform legislation in Congress. Other
groups such as the Indian Rights Association helped raise the
public consc1ousness. Books such as A Century of Dishonor were
published in the early 1880's. Some reformers wanted to
assimilate Indians into society and were convicned that
citizenship and suffrage were needed to guarantee the process.
The reform movement led to the Allotment Act of 1887 and is also
known as the Dawes Act of 1887.104
The hopes of reformers and backers of the Dawes Act were to assimilate the Indians into our society. Their idea was to
- ---~------~ 35 accomplish this by turnig the Indians into farmers. The idea of allotment was not a new one for it had occured in the past as early as 1833. However, the Dawes Act was a widespread program alloting lands to the Indians. The first provision of the Act authorized the allotment of Indian lands by the President of the
United States. The second provision allowed Indians to pick the land. Another provision allowed non reservation Indians a means to acquire alloted lands. The Act also provided that all Indian titles to allotted lands be held in trust for a period of up to
twenty five years at the President's discretion. The Act further provided for state jurisdiction in civil or criminal matters in
the alloted lands. The Dawes Act was made mandatory by its own
terms.105
In 1888 the Act was amended, stipulating that whites marrying
Indian women did not have an interest or gain an interest 1n0
tribal lands. However, an Indian woman marrying a white man
retained her interest in the tribal lands. The Act was amended again in 1891 and the new amendment provided for 80 acres of
farming land or 160 acres of ranching land for each Indian.
Before the amendment, the Act only provided for 160 acres to go to
the head of a household and 40 acres for each minor.
In 1906 the Burke Act lifted the trust restructions of all competent allottees. This Act lead to more land leaving Indian hands and entering the hands of white farmers. Instead of helpin0 the Indians, the B~rke Act hindered the Indian's progress 36 because it allowed for drunk Indians to sell their land. The
Appropriation Act of 1901 took more land away from the Indians.
It allowed the Secretary of Interior the right to grant right of ways through Indian lands for such purposes as railroads, telephone lines, and telegraph lines. The Appropriations Act of
1906 gave the President the right to extend the trust period at his discretion.l06
It soon became apparent that a majority of the Indians were not becoming farmers and the programs were not succeeding.
Moreover, a great amount of land was not being used and a public movement to use the land was growing. In response to this movement, the Act of 1891 allowed for the leasing of individual
Indian allotments. However, the act required the approval of the
Secretary of Interior before land was leased. The criteria for leasing one's land was old age, disability, or the Indian could not occupy the land. However, 1n 1910 this requirement was lifted and any allottee that had land 1n trust could lease such land for a period not to exceed five years. A 1919 Act allowed the leasing of !~dian lands for mining purposes for a period not to exceed twenty years with successive renewals of ten years. Tribal consent was not needed for such lease and the government treated such lands as if it were government land.l07
Indian reformers could never envisioned the outcome of the push for allottment and assimilation or they never would have allowed such programs to be initiated. The programs are considered 37 failures for the only success the programs had were in taking land away from Indians. The programs allowed white men free access to
Indian lands and caused immeasureable damage. In some cases, the program allowed for allottment to be completely surrounded by white farmers; thus, isolating Indian allottees from his tribe.l08
The assimilators felt that education was the key in driving Indians into the mainstream of society. Education was
geared towards the youth of the tribes. They felt that if Indian youth were taught the American way then they could be brought into
American society. The new schools replaced the teaching of Indian
culture, with the teaching of American culture. Educators hoped
to accomplish this goal by contracting with the parochial schools
to provide schooling for Indians. Close to 30 percent of all
Indian school funds were appropriate for such contracting. In
1892 Congress made education compulsory and in 1893 Congress
stated that rations would be denied to parents of children that
did not attend school. The Appropriation Act halted the practice
of sending Indian children out of state without parental consent.
By 1917 the Secretary of Interior's office had decided that it was better and more efficient if the state school system provided
Indian e2ucation. Educators felt that it would be an asset for
the Indian children to be educated with white children. At the same time it was decided that Indian parents who could afford to p&j tuition and were not under federal supervision would not be allowed to send their children to federal Indian 38 schools.109
The local Indian agents also tried to assimilate the Indians into society. today the agents• methods would be considered a violation of Indian civil rights. They controlled Indian hair
length, the Indian way of beef slaughtering, and funeral procedures. Fines and imprisonment were also imposed on Indians
who performed Indian ceremonies and dances.110
Individual Indian citizenship rights were often granted in
the early days of our republic by treaty. Many of the treaties
provided for citizenship if Indians so desired. Some statutes
conditioned citizenship on requirements such as learning English,
being self-supporting, and adopting white man ways. The Allotment
Act of 1889 provided two ways for obtaining citizenship. First,
it allowed citizenship to allottees who received their land either
by treaty or law. Secondly, it gave citizenship to people who did
not live "Tith their tribes and adopted .. white man•s ways ...
However, the Burke Act of 1906 stipulated that citizenship was not
to be granted until allottees received fees to their land. In
1919 all Indians who fought in World War I were granted
citizenhsip. However, citizenship did not mean Indians had the
right to vote. Many states refused to allow the Indians to vote,
with their just1f1cat1on· · · b e1ng· t h a t they d1'd not pay taxes.l11
The Merian Report was followed by a renewed reform movement.-
The report was compiled by a non-governmental group at the request of the Secretary of Interior, Hubert Work. The report was a study 39 of a two year period of the Bureau of Indian Affairs and examined the impact of Indian policy on Indian life. The report vehemently called for change and depicted the suffering, poverty, disease, and discontent of the Indians. The report stimulated public support for improvement and change. It also supported the assimilation view, but not the path that assimilation followed.
It was shocking to discover the lack of respect g1ven to the
Indian culture by the Bureau of Indian Affairs. The Leavitt Act, a major result of the Merian Report, allowed for the discharge of debts incurred for construction work that was not even requested or beneficial to the Indians.ll2
An early court cases that notes consideration is Standing
Bear v. Crook, 25 F. Con. 695 (C.C.D. Neb. 1879) (No. 14,891).
In the case attorney John L. Webster took up the cause of the
Poncas Indians. The case was heard by federal district Judge
Elmer Dundy and Judge Drundy accepted the argument, among others, that Indians who left the reservation were free to go where they pleased. In accepting the arguments for the Poncas, Judge Dundy granted a writ of habeas corpus and in doing so Chief Standing
Bear procured his freedom. The importance of this case is two fold. First of all, it upheld the right of an Indian to bring suit. Secondly, the right of an Indian to procure a writ of habeas corpus was upheld. Thus, the argument that Indians were not persons or citizens under the law was rejected. The case is also important because it brought the plight of Indians into the 40 public eye. The momentum for the reform movement of the 1880's owes a lot of its success to the Standing Bear case.ll3
A landmark case that deals with Indian titles in Johnson and
Graham's Lesser v. Mcintosh, 8 U.S. (wheat) 543 (1823). This case focuses on the right of title by discovery and conquest. In the case, plaintiffs claimed title to land Northwest of the Ohio
River. Plaintiffs title was acquired from the Indians prior to the American Revolution. The issue before the court was whether such titles are recognizable. The court held against recognizing such titles. In doing so, the court acknowledged that
Indians did not hold title to the land.ll4
In explaining the doctrine of discovery, The court said that discovery gave the discovering European country title to the discovered lands against any other European country. It gave such country the sole right to procure the sale from the Indians.
In other words, Indians had a legal right to occupy land and use it 1n any form they wished. However, they could not sell the land to anyone but were limited to deal with the discovering country.
Indian sovereignty was diminished due to the principle of discovery. European countries that discovered land in the new world also adhered to the principle of discovery and recognized each others rights and title to the discovered land.ll5 The Court also acknowledged that Great Britain ceded all its rights in the new world to the United States of America, at the end of the
American Revolution. The Court acknowledged that the Indians 41 occupied the land in question but the sole right to extinguish the
Indians' title was in the United States because it succeeded to
the rights of Great Britain.ll6
The Court also focused on the principles of conquest. The
Europeans had two choices: either abadone the discovered lands or
take possession by force. The Europeans believed in the
philosophy "that the conquered are under the domain of the
conqueror". This being the case, the conquered have no authority
to sell their soil and any purchase from the conquered is void.
The court under Judge Marshall held that purchases of conquered
lands were null and void for the above reasons.ll7
The Johnson case not only voided individual purchases from
Indians, but also acknowledged that all titles to Indian lands are
in the United States. In the op1n1on the Court justified the
taking of possession by force if need be. In doing so, Indian
rights to their homeland were further restricted. The doctrine
of discovery developed with the European quest to build an empire.
The doctrine meant that the European country that was first to
discover any unknown lands had sole interest to those lands.ll8
According to international law the Indians had the right to
their lands to use or sell as they pleased. Also, Indian lands
were acquired by treaty and not by force in the years pr1or to the
American Revolution. Other countries were prohibited from
interfering or having diplomatic relations with the Indians 1n 42 lands discovered by another European country. Discovering gave right to the discovery European nations to extinquish Indian titles, with the consent of the affected Indians tribe through a treaty.l19
Looking back at the history of the New World, the European countries, with the exception of Spain, never took title without a treaty or without consent. However, the doctrine of discovery limited the Indians to deal with the discovering nation only.120
Judge John Marshall said in a United States Supreme Court decision in 1823 that,
This principle was, that discovry gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title may be consummated by possession. The exclusion of all other Europeans, necessarily gave to the nation making the discovery the sole right of acquiring the soil from the nation and establishing settlements upon it.121
Nine years later Judge John Marshall addressed the discovery issue again. He said in a United States Supreme Court decision in
1832 that,
This soil was occupied by numerous and warlike nations, equally willing and able to defend their possessions. The extravagent and absurd idea, that the feable settlements made on the seacoast, or the companies under who they were made, acquired legitimate power by them to govern the people, or occupy the lands from sea to sea, did not enter the mind of any man. They were well understood to convey the title which, according to common law of European sovereign respecting American, they might rightfully convey, and no more. This was the exclusive right of purchasing such lands on the natives were ~illing to sell ... 122 43
However, by the 1840's the expanionist v1ew that possession of
America was by discovery dominated the feeling in America and the
United States Supreme Court. The court had reversed its views in less than ten years. The court said that the United States had
"absolute" right by virtue of discovery to dispose of Indian property at its pleasure, as if the land had been without inhabitants. This is the view that has governed since the early 1840's.123
The concept of conquest was adhered to in the 15th century.
The doctrine of conquest simply defined that the conquerors of wars, where they had not been the aggressors, could exerc1se rights over the conquered domain. With such rights the conqueror could annex all conquered territory and extinguish the loosing nation's land titles.124
If the war was ended by treaty the victor could only ga1n title to land if the defeated nation agreed or was forced to agree to the treaty. This being the case, history dictates that all territories not ceded by the Indians remain theirs as do all the property rights.125
The United States Supreme Court refused to accept the conquest argument in 1823 and again in 1842. It was not until the
Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1953), that the conquest theory was adhere to by the courts. The Court struggled in trying to apply the conquest doctrine to their decision. Since, in this case the natives of Alaska never fought 44 a war with either the United States or Russia. In fact it welcomes the United States into its territory. The concept has no basis in this case or in any case dealing with the American Indian 1n North America.126
Another landmark case affecting Indian rights occured eight years later in 1831. The case is Cherokee Nation v. Georgia, 30
U.S. 1 (1981) and although the holding was not favorable to the
Cherokees, its opinion was. In the case the Cherokee Nation brought suit against the State of Georgia, because it was pass1ng laws that intruded and attempted to diminish their tribal authority. The United States by treaty had recognized and outlined the boundries of the Cherokee Nation. The treaty also recognized their Cherokee's right to self government and gave the
Cherokee's the right to punish any intruding settlers. The State of Georgia passed laws which in effect, by its own mean1ng, preempted Cherokee laws and abolished the Cherokee Government.
Georgia passed all the laws because it knew that the great Indian fighter, President Andrew Jackson would not come to the aid of the
Cherokees.127
In the opinion, Judge Marshall said that the United States recognized the Cherokees as a state through its actions. However, under our constitution Marshall said that Indian tribes and foreign nations are mentioned separate. So, the interpretation was that Indian tribes are not foreign nations. This being the case, the United States Supreme Court had no jurisdiction over the
• 45 matter and could not provide relief for the Cherokees. Also, if the Cherokees had been wronged the Supreme Court was not the right tribunal to hear such complaints.l28 Although, the Cherokee
Nation was found not to be a foreign country, Marshall in his opinion conceded that the Cherokee Nation was a state within the
United States. This statement gives rise to a presumption of the sovereignty of the Cherokee Nation and the right to self government under the guidance of the United States.
The following year the United States Supreme Court granted relief for the Cherokee Nation against Georgia in Worcester v.
Georgia, 315 U.S. 515 (1832). In this case a missionary was arrested and convicted for failing to obtain a license and swear allegiance to the State of Georgia pursuant to Georgia law. The missionary was sentenced to four years of hard labor. His appeal eventually reached the United States Supreme Court which had jutisdiction because the suit was brought by an American citizen who had exhausted his appeal in state court.l29
Worcester, in his petition argued that the Georgia Law which he was convicted of was contrary to constitutional laws and treaties of the United States. Hence, the law must fail because of its unconstitutional nature. The United States Supreme Court held that the laws of the State of Georgia do not apply to the
Cherokee Nation. The Court stated that the Cherokee Nation had its boundaries determined by treaty and could not be trespassed by
Georgians or any citizen without their consent. These findings 46 led to the release of Worcester.l30
The holding in Worcester was favorable to the Cherokee Nation because it acknowledged their rights and power under United States treaties. However, the Courts decision was unfavorable because it was up to the President of the United States to uphold Supreme
Court rulings. In this case the President refused to intervene to . restrain the State of Georgia. The United States Supreme Court 1n its holding raised a presumption of the sovereignty of the
Cherokee Nation, and also acknowledged that all of the states and its citizens must recognize treaties made by the United States.131
Several later cases worth noting dealt with the language of treaties. In State v. Tinno, 94 Idaho 759, 497 P.2d 1386 (1972), the Idaho Supreme Court held that the language in the disputed treaty was broad enough to give Indians hunting rights. The court acknowledged that in the Indian language there are no distinctions between hunting or fishing. In their language one verb means both fishing and hunting. This being the case, when the treaty was made the Indians through their interpreters probably believed that the word hunting meant that they reserved both hunting and fishing rights.132
The United States Supreme Court and state courts followed the rule that ambiguous terms in treaties were to be construed as favorable to the Indians. The Tinno case and other cases demonstrated the problem with language interpretation in treaties.
In many cases there were treaties that contained several different 47 dialects of Indian tribes but only one vJhite man interpretation.
The last case that will be discussed 1n this report is Oneida Nation v. County of Oneida, 414 U.S. 661 (1974). In this case the court held that the Oneida Nation was not barred
from filing suit because there was no applicable statute of
limitations. The Indians claimed that the Intercourse Act prohibited anyone from buying land from the Indians unless it was
through a United States treaty. In fact the Act did state that
any contract for the purchase of Indian land that did not have
congressional approval would be void. The suit arose out of a
purchase by the State of New York for land held by the Oneida
Nation in 1795 in violation of the Intercourse Act. In essence
the court stated that, 11 Indian title is a matter of federal
law ... l33
In conclusion, American Indian Policy has been that highly
favors the United States of America. The morality of the
government's actions have been questioned several times by
reformists. However, the reform movement has only curtailed
government actions and 1n many cases has led to more harm than
good. A prime example of this result can be as was seen during
the period of allotment and assimilation. During this era million
of acres of Indian lands were supposedly sold for the .. good .. of
the Indians. If the reformists only knew that the result would have been further detriment to Indians such actions would not have been undertaken. However, many feel that if the allottrnent 48 program had been allowed to run its course it would have worked.
As can be seen through out the paper, as Indian power diminished the Indian's power to negotiate did too. The treaties
between the different tribes and the United States reflect this
concept. Usually the first treaty between a tribe and the United
States was one that asserted their frienship. It was not until
the second or third treaty that Indians started to cede land
through a purchase treaty. In many cases Indian chiefs signed
treaties without having the benefit of a interpreter. This
led to the result of interpreting ambiguous treaties in favor of
Indians.
To be realistic, there can never be an adequate remedy for
the amount of injustice the Indians suffered. The only hope is
that history will not repeat itself. More than likely, the court
probably will find a solution similar to the one afforded Japanese
Americans at the end of World War II; monetary compensation.
However, questions of how the compensation will be distributed are
further question that must be addressed and dealt with .
.(Jtt05t; 49
Endnotes
1. W. Washburn, Red Man's Land/White Mans' Law at 146-47
(1971).
2. Id. at 47.
3. Id. at 37-37.
4. Id. at 42.
5. Id. at 42.
6. Id. at 48.
7. F. Cohen, Handbook of Federal Indian Law at 57 (1982).
8. W. Jacobs, Indians of the Southern Colonial Frontier at XVI
(1956).
9 . I d . at XV I .
1 0 • I d • at XV I •
11. Id. at XVII.
12. F. Cohen, supra at 57.
13. V. Vogel, This Country Was Ours at 51 (1972).
14. Id. at 55.
15. Id. at 51.
16. Id. at 55.
17. W. Washburn, supra at 50.
18. Id. at 51.
19. H. Jackson, A Century of Dishonor at 11 (1972).
20. W. Washburn, supra at 53.
21. Id. at 53.
22. Id. at 54. 50
23. H. Jackson, supra at 264.
24. I d. at 263.
25. I d. at 267.
26. I d. at 270.
27. I d. at 270.
28. I d. at 271.
29. I d. at 273.
30. I d. at 273.
31 . I d. at 274.
32. F. Cohen, supra at 220.
33. I d. at 220.
34. H. Jackson, supra at 279.
35. I d. at 281.
36. I d. at 285.
37. v. Voge 1, supra at 133-34.
38. H. Jackson, £upra at 287.
39. I d. at 289.
40. I d. at 290-91.
41. I d. at 295.
42. I d. at 297.
43. I d. at 33.
44. I d. at 34.
45. I d. at 36.
46. I d. at 43-44.
47. I d. at 44-45.
l(J(}O.'l2 51 48. Id. at 46-48.
49. v. Vogel, supra at 96.
50. H. Jackson, supra at 52.
51. Id. at 57.
52. Id. at 58.
53. Id. at 58.
54. Id. at 63.
55. Id. at 66-70.
56. Id. at 72-76.
57. Id. at 85.
58. R. Trennert, Jr., Alternative to Extinction at 182-91 (1975).
59. H. Jackson, supra at 86-89.
60. Id. at 90-94.
61. Id. at 95-99.
62. Id. at 99-102.
63. Id. at 136.
64. Id. at 138.
65. Id. at 139-43.
66. Id. at 143-46.
67. Id. at 148-60.
68. Id. at 160-67.
69. Id. at 167-85.
70. Id. at 179. 71. v. Deloria, Jr., Behind Trail of Broken Treaties at 63-66
(1985). 52
72. Id. at 66-69.
73. v. Vogel, supra at 48.
74. D. Jones, License for Empire at 60 (1982).
75. Id. at 61.
76. Id. at 66.
77. Id. at 69-74.
78. Id. at 75-90.
79. Id. at 90-100.
80. H. Jackson, supra at 103-08.
81. Id. at 109-111.
82. Id. at 111-13.
83. Id. at 114-16.
84. Id. at 117.
85. Id. at 120.
86. Id. at 120-25.
87. Id. at 125-33.
88. w. Washburn, supra at 210.
89. H. Jackson, supra at 186-92.
90. Id. at 195-94.
91. Id. at 195-97.
92. Id. at 198.
93. Id. at 199-203.
94. H. Fritz, the Movement For Indian Assimsilation at 189-90.
95. Id. at 190.
96. Id. at 191.95.
000!}4 53 97. H. Jackson, supra at 218-21.
98. Id. at 221-23.
99. Id. at 224-29.
100. I d. at 233-37.
101. I d. at 237-56.
102. F. Cohen, supra at 109-12.
103. I d. at 126-27.
104. H. Fritz, supra at 199-21.
105. F. Cohen, supra at 130-33.
106. I d. at 133.
107. I d. at 133-36.
108. I d. at 136-37.
109. I d. at 137-40.
110. I d. at 140-41.
111. I d. at 142-43.
112. I d. at 144-46.
113. H. Fritz, supra at 190 . • 114. W. Washburn, The American Indian and the United States a
Documentary History, Volume IV at 2537 (1973).
115. Id. at 2543.
116. Id. at 2543-44.
117. Id. at 2545-50.
118. National Lawyer Guild, Re-Thinking Indian Law at 16 (1982).
119. Id. at 16.
120 I d. at 1 7 .
(}()-Of~ 54
121 . I d. at 1 7.
122. I d. at 1 7.
123. I d. at 17.
124. !d. at 18.
125. !d. at 18.
126. Id. at 19.
127. w. Washburn, supra at 2554.
128. I d. at 2255-58.
129. !d. at 2603.
130. I d. at 2603.
131. I d. at 2603.
132. F. Cohen, supra at 44 7.
133. I d. at 524. 55
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000~