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.