⚖️Native American Law Unit 4 – Federal Indian Policy: Key Historical Eras

What's This Unit About?

• Covers the historical eras of Federal Indian Policy from the 1770s to the present
• Examines the evolving relationship between the U.S. government and Native American tribes
• Explores the impact of federal policies on Native American sovereignty, land rights, and cultural identity
• Highlights key legislation, court cases, and historical events that shaped each era
• Discusses the shift from assimilation and termination policies to self-determination and tribal sovereignty
• Analyzes the lasting effects of historical policies on modern Native American communities and their relationship with the federal government

Key Terms to Know

• Sovereignty: The inherent right of Native American tribes to govern themselves and manage their internal affairs
• Treaty: A formal agreement between the U.S. government and Native American tribes, often involving land cessions and promises of protection
• Reservation: A designated area of land set aside for Native American tribes, often created through treaties or executive orders
• Allotment: The division of communal tribal lands into individual parcels, as mandated by the Dawes Act of 1887
• Assimilation: The process of encouraging Native Americans to adopt European-American culture, language, and customs
• Termination: The federal policy of ending the government's recognition of tribal sovereignty and trust responsibilities, prevalent in the 1950s and 1960s
• Self-Determination: The principle that Native American tribes have the right to govern themselves and make decisions about their own affairs, as affirmed by the Indian Self-Determination and Education Assistance Act of 1975

Early Federal Indian Policy (1770s-1830s)

• Characterized by treaty-making between the U.S. government and Native American tribes
• U.S. Constitution (Article I, Section 8) granted Congress the power to regulate commerce with Indian tribes, establishing federal authority over Indian affairs
• Trade and Intercourse Acts (1790-1834) regulated commerce and land transactions between Native Americans and non-Indians
• Marshall Trilogy (1823-1832) established key principles of federal Indian law, including tribal sovereignty, the trust relationship, and the doctrine of discovery
  • Johnson v. M'Intosh (1823): Recognized U.S. ownership of Native American lands by right of discovery
  • Cherokee Nation v. Georgia (1831): Defined Native American tribes as "domestic dependent nations" under U.S. protection
  • Worcester v. Georgia (1832): Affirmed tribal sovereignty and federal authority over Indian affairs

Removal and Reservation Era (1830s-1880s)

• Marked by the forced removal of Native American tribes from their ancestral lands and the establishment of the reservation system
• Indian Removal Act (1830) authorized the President to negotiate removal treaties with tribes east of the Mississippi River
• Trail of Tears (1838-1839) resulted in the forced relocation of the Cherokee Nation and other southeastern tribes to Indian Territory (present-day Oklahoma)
• Treaty-making continued as a means of acquiring Native American land and establishing reservations
• Reservation system aimed to confine Native Americans to designated areas and facilitate assimilation efforts
• Plains Wars (1860s-1870s) led to the forced relocation of Plains tribes onto reservations
  • Sand Creek Massacre (1864) and Wounded Knee Massacre (1890) exemplified the violence and brutality of this era

Allotment and Assimilation Period (1880s-1930s)

• Focused on breaking up tribal lands and encouraging Native Americans to adopt European-American culture and customs
• Dawes Act (1887) divided communal tribal lands into individual allotments, with the goal of promoting private property ownership and agriculture
  • Surplus lands were sold to non-Native settlers, resulting in significant land loss for tribes
• Boarding schools, such as Carlisle Indian Industrial School, were established to educate Native American children in European-American culture and language
  • Children were often forcibly removed from their families and communities
  • Schools aimed to "kill the Indian, save the man" by suppressing Native American identities and traditions
• Citizenship Act of 1924 granted U.S. citizenship to all Native Americans, regardless of tribal affiliation

Indian Reorganization Era (1930s-1950s)

• Marked a shift in federal policy towards supporting tribal self-government and preserving Native American culture
• Indian Reorganization Act (1934), also known as the "Indian New Deal," ended allotment and encouraged tribal self-government
  • Provided for the establishment of tribal constitutions and the creation of tribal corporations
  • Restored some lands to tribal ownership and established a revolving credit fund for tribal economic development
• Johnson-O'Malley Act (1934) provided federal funding for Native American education, health care, and social services
• Termination and relocation policies began to emerge in the late 1940s, foreshadowing the next era of federal Indian policy

Termination and Relocation (1950s-1960s)

• Characterized by the federal government's attempts to end its trust responsibilities to Native American tribes and encourage assimilation into mainstream society
• House Concurrent Resolution 108 (1953) declared Congress's intent to terminate the federal-tribal relationship and grant states jurisdiction over Indian affairs
• Public Law 280 (1953) transferred criminal and civil jurisdiction over Indian reservations to certain states, undermining tribal sovereignty
• Indian Relocation Act (1956) encouraged Native Americans to leave reservations and move to urban areas for employment opportunities
  • Many Native Americans struggled to adapt to urban life and faced discrimination and poverty
• Over 100 tribes were terminated during this era, resulting in the loss of federal recognition and trust protections

Self-Determination Era (1960s-Present)

• Emphasizes tribal sovereignty, self-governance, and the preservation of Native American culture and identity
• Indian Civil Rights Act (1968) extended many of the protections of the Bill of Rights to tribal governments and their members
• Indian Self-Determination and Education Assistance Act (1975) allowed tribes to contract with the federal government to administer their own education and social service programs
• American Indian Religious Freedom Act (1978) protected the rights of Native Americans to practice their traditional religions and access sacred sites
• Indian Gaming Regulatory Act (1988) established the framework for tribal gaming operations and revenue-sharing with states
• Tribal self-governance programs and economic development initiatives have expanded, empowering tribes to manage their own affairs and resources

Major Court Cases and Legislation

• Ex parte Crow Dog (1883): Affirmed tribal jurisdiction over crimes committed by Native Americans on reservations
• United States v. Kagama (1886): Upheld the constitutionality of the Major Crimes Act, which extended federal criminal jurisdiction over certain crimes committed by Native Americans on reservations
• Indian Citizenship Act (1924): Granted U.S. citizenship to all Native Americans born within the country's borders
• Indian Claims Commission Act (1946): Established a commission to hear and resolve Native American land claims against the federal government
• Indian Child Welfare Act (1978): Established standards for the placement of Native American children in foster and adoptive homes, prioritizing placement with Native American families
• United States v. Wheeler (1978): Affirmed the inherent sovereignty of Native American tribes and their right to prosecute tribal members for crimes committed on reservations
• California v. Cabazon Band of Mission Indians (1987): Upheld the right of Native American tribes to operate gaming enterprises on reservations, leading to the Indian Gaming Regulatory Act

Impact on Modern Tribal Sovereignty

• Historical policies have had lasting effects on the political, economic, and social status of Native American tribes
• Tribes continue to assert their inherent sovereignty and right to self-governance, while navigating the complex legal and political landscape of federal Indian law
• Land loss and the erosion of the tribal land base have hindered economic development and self-sufficiency for many tribes
• The legacy of assimilation policies, such as boarding schools, has contributed to the loss of language, culture, and identity for many Native American communities
• Tribal governments are increasingly asserting their rights and engaging in nation-building efforts, such as developing economic enterprises, providing social services, and protecting natural resources
• The government-to-government relationship between the federal government and Native American tribes continues to evolve, with ongoing debates over the extent of tribal sovereignty and the trust responsibility
• Modern legislation and court decisions, such as the Tribal Law and Order Act (2010) and McGirt v. Oklahoma (2020), have affirmed tribal jurisdiction and strengthened the legal foundation for tribal self-governance