Download The Policy Rvw Comm Chap3

THE INDIAN POLICY REVIEW COMMISSION
Peter S. Taylor (March 9, 2015)
Chapter 3
The early and middle years of the 19th century are commonly referred to as the Treaty
making period in federal – Indian affairs. The government of the United States and the Indian
tribes were frequently involved in some military activity. A common problem involved illegal
trade with Indians (often the sale of liquor) and encroachment of settlers upon Indian land. As
early as 1811 the press of American settlers moving west had roused problems with the Indians
in areas around what became Ohio, Indiana and Illinois. Tecumseh, a chief in the Shawnee
Tribe, succeeded in forming a confederacy with similarly located and affected tribes to resist this
activity. When the War of 1812 between the U.S. and the British broke out Tecumseh and his
brother, the Prophet, brought “Tecumseh’s Confederation” on the British side.
In 1832 another short-lived war broke out in territory now known as Iowa and Illinois
when Chief Black Hawk, a Sauk Indian, led a delegation east across the Mississippi River
seeking a location to settle his people. A skirmish broke out in which Abraham Lincoln played a
small part – but not as a combatant. He led a small unit in the state militia, but they were not
engaged in the actual fighting.
With the westward movement of settlers in full swing, new states were being rapidly
added to the Union. Article IV, Section 3 of the Constitution provides that new states may be
admitted by the congress into the Union, but it is silent as to the process by which this might be
done. Congress has authority to review any petition for admission to the Union and usually
manifests its approval through enactment of an Admission Act. The petition itself must include a
proposed constitution for the state. At some point congress began requiring that state
constitutions include a provision requiring the incoming state to honor the treaty provisions with
Indian tribes within the states boundaries.
When the Final Trade and Intercourse Act was enacted in 1834, almost all land west of
the Mississippi River was considered “Indian country” – territory to which Indian tribes might be
relocated. The country was on the verge of discoveries that would change the character of the
land almost overnight – particularly in transportation and communications. Steamboats began
plying the river systems; railroads were building; and the telegraph made communications of
great distance possible. The doctrine of “manifest destiny” was upon us.
The Civil War intervened. Indians fought on both sides in that war. Both the
Confederacy and the Union produced an Indian general – one, Eli Parker – an adjutant to
General Ulysses Grant. After the war Parker, a Seneca, under President Grant, became the first
Indian to serve as head of the Bureau of Indian Affairs.
In 1871 congress, in a provision in an appropriation Act, prohibited any further dealings
with Indian tribes with treaties. Objections were immediately raised – not by Indians but by U.S.
agents that were still busy negotiating land settlements with tribes. They had not yet finished
their work. There were still lands – particularly in the northwest – to be secured. Their efforts
continued, but were now called Agreements, and were ratified by both houses of congress – not
just the Senate.
In the late 1800’s both congress and the courts began to play an active role in Indian
affairs. In 1873 all federal statutory laws, including Indian affairs, were consolidated into a new
reporting system known as the Revised Statutes. As a general proposition (but with some
exceptions) the internal affairs of the Indian tribes were left to the Indians. The circumstances of
the Indians had undergone immense changes – almost always to the detriment of the Indian. The
white-man’s diseases had played havoc with the tribes, in some cases almost eliminating the
tribe; the buffalo economy had been nearly wiped out; competition with the white-man for
resources – water, land and timber (not to speak of gold) -- had begun.
In the 1880’s major changes took effect. In 1883 a criminal case reached the U.S.
Supreme Court. A chief of a major Sioux tribe in South Dakota Territory had killed a chief of
another major Sioux tribe. I think some domestic relations were in question. The case against
Chief Crow Dog was thrown out of court on the grounds that it involved one Indian against
another Indian committed in Indian country. Neither the federal or state governments had any
jurisdiction over Indian v. Indian offenses in Indian country. Congress was aghast and promptly
appended to the Appropriation Act of 1885 the Major Crimes Act, making seven major offenses
committed by one Indian against another Indian a violation of federal law. This Act was upheld
by the Supreme Court in 1886 as pre-empting any state jurisdiction, the court noting that states
often proved to be the tribes worst enemies.
In 1887 congress enacted the General Allotment Act, also known as the Dawes Act. It
provided for break the tribally owned land masses into individual allotments of land to be
distributed to the tribal members. The intent was to turn the individual Indians into farmers and
breakup or reduce the controlling influence of the tribal governments. Lands were to be held in
trust (i.e., title to lands were to be held by the U.S. for the benefit of the Indian) and, after a fixed
period of time, deeded to the Indian free of any encumbrance. Ultimately this trust status was
extended without a time limit. When this Act was enacted, the Indian lands aggregated 150
million acres. When this provision of the Allotment Act was suspended in 1934 the Indian land
holdings had been reduced to 56 million acres – a loss of 100 million acres.
President Theodore Roosevelt applauded the intent of this Act to break up the Indian
reservations and terminate tribal governments. More to come.