Liberty and Equality for Native Americans
Bill of Rights Institute
Kansas City, Kansas
October 27, 2015
Artemus Ward
Dept. of Political Science
Northern Illinois University
aeward@niu.edu
Introduction
• Because Native Americans were dispersed, subject
to ethnic cleansing and left in conditions of abject
poverty, disease, and starvation, political
organizing in response to this treatment by the
U.S. government was difficult.
• Treaties and policies toward Native Americans are
not typically introduced in high school history
courses, nor in college courses on American
government. The study of the legal treatment of
Native Americans is actually entirely separate
from other law courses involving civil rights.
Much has been done to try to erase this aspect of
American history.
• The current plight of Native Americans to secure
civil rights is not history, however, but very much a
present day struggle.
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Introduction
• Native Americans are the original inhabitants
of the land that is now the United States. As
European settlers moved West, Native
Americans were displaced or killed.
• The deliberate destruction of a population of
people is genocide, and that is what the United
States government did to the native peoples
that populated what is now the U.S.
• However, what is most intriguing about the
genocide perpetrated against the Native
peoples is that it was all done legally. Every
action taken by the U.S. with regard to Native
tribes had a legal justification.
• In the following discussion we will consider the
struggle for Native American rights with
particular attention to questions of law and
policy.
Crazy Horse
Native American “Law”
• Law, as conceived by Native Americans, was different from the European concept and
designed to serve other purposes.
• Law in Native American society cannot be separated from the life and customs of Indian
people. Law to Native Americans is an organic part of a larger worldview, embodying a
relationship between Earth and her people, disclosed in commands from the spirit world.
• This understanding guides Indians’ lives in both formal and informal ways, setting values
that run more deeply than the secular laws of the U.S. and the decisions of the U.S. Supreme
Court.
• In traditional tribal law, a command from the spirit world can have greater force as law than
the most elaborate decision devised by any judge.
• Thus, traditional, tribal Native American law is distinct from Federal Indian Law imposed by
the national government (statutes and regulations governing land claims and jurisdictional
conflicts with Indian tribes).
• This disconnect has enabled the U.S. government to “legally” take advantage of Native
Americans.
American Founding Principles
• While U.S. law and courts have at times been a forum for “justice” for
Native Americans, there is no denying that they have largely been the
instruments of a conquering empire.
• Consider the Declaration of Independence. How could the Founding Fathers
speak such high-sounding words about equality and liberty and then ignore
the oppressions visited on slaves and Indian tribes?
• The Declaration was a 29-count bill of indictment against King George III.
The 27th count charges: “[King George III] has excited domestic
insurrections amongst us, and has endeavoured to bring on the inhabitants
of our frontiers, the merciless Indian Savages, whose known rule of warfare,
is an undistinguished destruction of all ages, sexes and conditions.”
• Alexis de Tocqueville wrote in Democracy in America (1835): “[The] conduct
of the Americans of the United States towards the aborigines is
characterized…by a singular attachment to the formalities of law.”
• He argued that the U.S. exterminated much of the native population
through law “with a singular felicity, tranquility legally,
philanthropically…without violating a single great principle of morality in
the eyes of the world. It is impossible to destroy men with more respect for
the law of humanity.”
• In short, American Indian policy has been “genocide-at-law” promoting the
twin expansionist objectives of the U.S.: land acquisition and cultural
extermination.
Alexis de Tocqueville
The Cyclical Nature of the “Indian Problem”
• The content of Indian law depends on white society’s definition at any time of what it calls the
“Indian problem.” Sometimes, white society was more idealistic in thinking about Native American
autonomy and rights while at other times it was more realistic or even pessimistic about Native
American issues.
• The relationship between the U.S. government and Native Americans can be divided into a number
of eras, each characterized as either idealistic or realistic:
1. Coexistence Era (1789-1828) – Formative idealistic period with the tribes beginning their
relationships with the federal government with the sovereign powers of independent nations.
2. Removal and Reservations Era (1829-1870) – Indian affairs controlled militarily through the War
Department resulting in the forced removal of native peoples from their lands.
3. Assimilation and Allotment Era (1871-1928) – Instead of tribal control, Native lands were
controlled by individual land owners. U.S. policies resulted in in the loss of more than 90 million
acres of tribal lands.
4. Reorganization and Reestablishment Era (1928-1942) – Another idealistic period where the U.S.
made a commitment to revitalize tribal governments.
5. Termination Era (1943-1961) – During the 1950s, more than 100 tribes were stripped of their
special relationship with the federal government and, in most cases, of their land.
6. Self-Determination and Tribal Revitalization Era (1961-present) – Third idealistic period where
Native Americans have mobilized and turned to lawyers and courts for their interactions with the
U.S. government.
Coexistence Era
(1789-1828)
• Formative idealistic period with the tribes beginning their relationships with the
federal government with the sovereign powers of independent nations.
• In the early years of the nation Congress pledged that “the utmost good faith shall be
observed toward the Indian.”
• The U.S. applied international law principles to its dealings with Native Americans and
used the Constitution’s treaty power to accomplish its ends—primarily land claims
• Over 200 treaties were signed by 1840 that were seen at the time as mutually
beneficial. The federal government was primarily interested in guaranteeing that
Indian lands did not fall into private hands (i.e. controlled by Native Americans or the
federal government) and that it handle all negotiations with the tribes. These
negotiations strengthened the tribes sense of unity and leadership and land sales
brokered through the federal government gave the Indians a steady flow of income,
and ultimately, guarantees of federal financial, medical, and educational aid.
Johnson v. M’Intosh (1823)
• In this landmark property case, Chief Justice John
Marshall provided a court-sanctioned blueprint for the
destruction of Indian land claims.
• He ruled that private citizens could not purchase lands
from Native Americans. Instead, if Native American land
was to be sold, it must be sold to the federal
government.
• He explained that while Native Americans could claim
aboriginal title to ancestral lands, under the commonlaw “Discovery doctrine” colonial powers actually hold
title to all lands they “discover.”
• The decision had the effect of creating a landlord-tenant
relationship under which the U.S. could materially affect
the lives of Indians through its control and regulation of
land use.
Removal and Reservations Era (1829-1870)
• In 1824 the Bureau of Indian Affairs (BIA) was established in the
War Department. Indian affairs would formally treated as an
aspect of military and foreign policy rather than of domestic
laws.
• After 1840, 200 more treaties were signed over matters of
immense scope, including land transfers or more than 2 billion
acres.
• Comprehensive principles evolved: the sanctity of Indian title
(land), the exclusion of state jurisdiction, the sovereign status of
Indian tribes, and the special trust relationship between Indian
tribes and the U.S.
• Of course there was wide variation in the extent to which each
of the principles was realized in practice. For example, Thomas
Jefferson said that Indian removal was necessary in order to,
“give them a space to live undisturbed by white people as they
gradually adjust to civilized ways.”
• Ultimately Congress discontinued treaty-making with Indian
tribes in 1871.
Thomas Jefferson
Indian Removal Act
(1830)
• Allowed the U.S. government to relocate Native Americans beyond the
Mississippi River by extinguishing the right of aboriginal title (Native American
rights to ancestral land) in:
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Alabama and Mississippi (1832)
Florida and Illinois (1833)
Georgia, North Carolina, and Tennessee (1835) via the Treaty of New Echota
Indiana (1840)
Ohio (1842)
Cherokee Nation v. Georgia (1831)
• Native Americans sued to protect their property rights
from encroachment by the state of Georgia on behalf
of land-hungry white settlers. Specifically, the Cherokee
argued that their treaty with the U.S. protected their
lands from any action by the state of Georgia.
• In the decision, Supreme Court Chief Justice John
Marshall held that the Supreme Court had no
jurisdiction to hear the case. Marshall broke with the
custom of treating Natives as independent nations that
theoretically would protect the sanctity of land
treaties. Instead, he declared that the tribes were
“domestic dependent nations” rather than
independent nations with sovereign treaty rights.
• Thus, according to Marshall, tribes are essentially
wards of the federal government.
Worcester v. Georgia (1832)
• But one year later, Marshall seemingly reversed course. Marshall no longer
considered the Cherokee Nation case controlling, although he did not
overrule it. Instead he emphasized the concept of “nation,” as opposed to
“domestic” or “dependent” and declared that Native tribes were foreign
nations who were immune to state laws.
• Thus, Native Americans had a constitutional right to federal protection
against enforcement of unconstitutional state laws. Specifically, Georgia
may not seize tribal lands, execute Indian citizens who were precluded from
testifying in court, and requiring the minister Samuel Worcester to have a
Georgia permit to live in Cherokee Country.
• The decision was based on two principles:
1. The Constitution delegated to the federal government broad legislative
authority over Indian matters.
2. The Cherokee treaties reserved to the Cherokees tribal self-government
within Cherokee territory free of interference from the state.
• These principles have come to be called the “trust responsibility” doctrine –
the basic notion that the U.S. government has a duty to keep its word and
fulfill its treaty commitments. Specifically, there is a federal responsibility to
Indians requiring the federal government to support tribal self-government
and economic prosperity, duties that stem from the government’s treaty
guarantees to protect Indian tribes and respect their sovereignty.
President Andrew Jackson’s Response
• However, President Andrew Jackson used his
executive power and sided with the white
Georgians. He is supposed to have said: “John
Marshall has made his decision. Now let him
enforce it.” But, he actually said: “The decision of
the Supreme Court has fell still born, and they find
that it cannot coerce Georgia to yield to its
mandate.”
• Georgians remained on Cherokee soil enforcing
Georgia law while Worcester languished in a
Milledgeville prison for violation of a Georgia
statute the Court had struck down.
• Cherokee land was lotteried away and troops
drove the Indians into prison stockades to wait for
the forced marches from Georgia.
Treaty of New Echota
(1835)
• Treaty between the U.S.
government and a minority political
faction of the Cherokee people.
• The treaty established terms under
which the entire Cherokee Nation
ceded its territory in the southeast
and agreed to move west to
the Indian Territory.
• Although the treaty was not
approved by the Cherokee National
Council nor signed by Principal
Chief John Ross, it was amended
and ratified by the U.S. Senate in
March 1836, and became the legal
basis for the forcible removal of the
Cherokee and other tribes.
Trail of Tears
(1838-1839)
• Jackson and Congress
blatantly opposed the Court’s
developing support for the
rights of Native Americans by
ignoring treaties, seizing
Native American land, and
forcing them to march from
their ancestral homelands on
the Trail of Tears to what was
then considered distant,
foreign lands in what is today
Oklahoma.
• President Martin Van Buren,
Jackson’s successor, directed
General Winfield Scott to
forcibly move all Native
peoples who had not yet
complied with the law and
moved west.
• The result was a genocide in
which thousands of Native
Americans died of exposure,
disease, and starvation
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Indian Appropriations
Act (1851)
• The Indian Appropriations Act (1851) established reservations (parcels of land)
for Native tribes.
• The land, however, was often poor, away from ancestral homes, forced Natives
to adopt white agriculture, and was diminished over time as white Americans
appropriated it.
• While reservations were supposed to help secure Native lands and populations,
they generally worsened the lot of Native Americans.
Assimilation and
Allotment Era
(1871-1928)
• Instead of treaties, which the U.S. government used until 1871, U.S. action toward
tribes was based on the Indian Commerce Clause and other federal power.
• The General Allotment Act (1887)—also know as the Dawes Act—is considered one
of the earliest attempts aimed toward the assimilation of Native tribes. Tribal lands
were no longer under the control of tribal governments; instead, the land was under
the control of individual land owners.
• The Allotment era resulted in the loss of over two-thirds of tribally entrusted lands
from 138 million acres in 1871 to 48 million acres in 1934. This was mainly due to
leasing, and eventually selling, tribal lands to white settlers.
• But not all of the lands were relinquished peacefully.
Custer’s “Last Stand” (1876)
Wounded Knee Massacre (1890)
• In 1876, General George Custer and the Seventh
Cavalry attacked an alliance of several tribes led by
Sitting Bull. The battle took place at the Little
Bighorn River in eastern Montana. Custer attacked
the Natives who suffered over 100 casualties. But
the Native forces (roughly 2,000 warriors) led by
Crazy Horse and Chief Gall killed Custer and 250 of
his soldiers.
• In late 1890, at the Wounded Knee massacre, the
Seventh Cavalry took revenge and slaughtered 150
Sioux men, women, and children after the warriors
refused to surrender their arms.
Chief Sitting Bull
Muskrat v. U.S. (1911)
• At issue were several federal laws involving land distribution and appropriations to Native
Americans.
• To determine whether these laws were constitutional, Congress enacted a statute
authorizing David Muskrat and other Native Americans to challenge the land distribution
law in court. This legislation also ordered the courts to give priority to Muskrat’s suit and
allowed the attorney general to defend his claim. Also, Congress agreed to pay Muskrat’s
legal fees if his suit was successful.
• The U.S. Supreme Court dismissed the suit as collusive, reasoning that there was no real
case of controversy because the U.S. “has no interests adverse to the claimants.”
• Though procedural in nature, the decision is an example of how courts were not effective
protectors of Native American rights—this time during the era of assimilation and
allotment.
Reorganization and
Reestablishment Era
(1928-1942)
John Collier
• Another idealistic period where the U.S. made a commitment to revitalize tribal
governments.
• The Indian Reorganization Act (1934) was the centerpiece of President Franklin Roosevelt’s
so-called “Indian New Deal” and was championed by John Collier, commissioner of the
Bureau of Indian Affairs (BIA) from 1933-1945 and who had previously fought for Native
American rights through his American Indian Defense Association (founded in 1923).
• The Indian Reorganization Act was wide-ranging, authorizing tribal self-rule under federal
supervision, putting an end to land allotment, and generally promoting measures to
enhance tribes through funding health care, social welfare, and education.
• Historians generally agree that the law temporarily rescued Indian communities from
federal abuses and helped Indian people survive the Depression but also damaged Indian
communities by not being sensitive to tribal differences as well as recognizing the
disagreements among Native Americans over whether they should continue traditional
ways or become more European-American in orientation.
Termination Era (1943-1961)
• The goal of this era was to urgently assimilate Native
Americans into mainstream American society by
terminating tribes and inducing indigenous people to live
“as Americans.”
• This would be accomplished by a series of policy changes,
withdrawing federal funding and protection for tribes,
making Native Americans taxpaying citizens, subject to
state and federal taxes as well as laws, from which they had
previously been exempt.
• The Indian Relocation Act (1956) was a federal law
encouraging Native Americans, who lived on or near Indian
reservations to relocate to urban areas for greater
employment opportunities. More than 100 tribes were
stripped of their special relationship with the federal
government and, in most cases, of their land.
• Between the 1950s and 1980s, as many as 750,000 Native
Americans migrated to the cities, some as part of the
relocation program, others on their own.
Self-Determination and Tribal Revitalization Era
(1961-present)
• Third idealistic period where Native Americans have organized and participated in
protests, occupations, and government lobbying to raise awareness and put pressure
on lawmakers for policy changes.
• At the same time this new era is also characterized by a turn to lawyers and courts
for interactions with the U.S. government.
• Specifically, the growth of Native American lawyers has transformed Indian issues
into legal questions handled by judges and (sometimes) legislators.
• Original treaties were enforced for the protection of Indian lands and such reserved
rights at hunting, fishing, and gathering; water; tribal self government; land claims;
child welfare protection; freedom of Indian religion; and powers of tribal taxation.
Ending and Reversing Termination
• In 1968, President Lyndon Johnson proposed ending
termination, building partnerships between tribal
governments and the United States, and fostering
tribal self-determination and self-development.
• Though the proposal never passed, subsequent
presidents followed this informal approach until
1988, when the House Concurrent Resolution
supporting Termination was finally formally
abandoned.
• Of the more than 100 tribes terminated during the
previous era, many were able to regain their federal
recognition.
• The tribes achieved this through long court battles,
which for some tribes took decades and exhausted
large amounts of money.
American Indian
Movement (1968)
• Like other groups such as African Americans and women, Native Americans organized
and engaged in various forms of activism in the 1960s and 70s to push for social
change.
• Founded in 1968, AIM was initially formed to address American Indian sovereignty,
treaty issues, spirituality, and leadership, while simultaneously addressing incidents
of police harassment and racism against Native Americans who live outside of
reservations.
• They often allied with other Native American pressure groups and have engaged in
various forms of protest and activism including marches, petitions, and lobbying.
Occupation of Alcatraz (1969-1971)
• From 1969-1971, hundreds of Native
Americans and their supporters from
AIM and other groups occupied Alcatraz
Island in San Francisco.
• The goal was to expose the historical
discrimination and genocide they
suffered and to demand a center there
for the study of Native American history
and culture.
• Today it is a national park and visitors
can see not only what is left of the
infamous federal prison that once
housed Al Capone, the Birdman, and
others, but also what remains of the
Native American occupation including
graffiti on the walls and water tower.
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Wounded Knee Incident
(1973)
• 200 Oglala Lakota followers of AIM, led by Dennis Banks and Leonard Peltier, seized and
occupied the town of Wounded Knee, South Dakota, on the Pine Ridge Indian Reservation.
The protest followed the failure of an effort of the Oglala Sioux Civil Rights Organization
(OSCRO) to impeach a tribal president, whom they accused of corruption and abuse of
opponents.
• Additionally, protesters attacked the United States government's failure to fulfill treaties with
Indian people and demanded the reopening of treaty negotiations.
• They occupied the town for over two months and engaged in armed confrontations with
federal law enforcement that resulted in two protesters shot and killed, one federal agent
shot and paralyzed, and hundred arrested.
• The occupation attracted wide media attention, helped publicized the plight of Native
Americans, and helped turn public opinion sympathetic to the goals of the occupiers.
Wounded Knee Incident:
Aftermath
• The troubles at Wounded Knee were not over after
the siege.
• A virtual civil war broke out between the opposing
Indian factions on the Pine Ridge reservation, and a
series of beatings, shootings and murders left more
than 100 Indians dead.
• When two FBI agents were killed in a 1975 gunfight,
the agency raided the reservation and arrested AIM
leader Leonard Peltier for the crime. In 1977, Peltier
was convicted of killing the two FBI agents and
sentenced to life in prison.
• To this day, Peltier’s supporters continue to maintain
his innocence and seek a presidential pardon for him.
Native Americans Today
• Native Americans in some areas
have continued to be successful in
creating a coordinated civil rights
movement and forcing the federal
and state governments to respond
to their demands.
• For example, many have
successfully used the courts to
secure fishing and hunting rights,
supported tribal land claims, and
have advanced the rights of Native
Americans in other areas including
religious liberty.
Conclusion
• Considered “savages” by white society, Native Americans
generally stood in the way of white America’s “manifest
destiny.”
• For most of its history, the Supreme Court has created a
“jurisprudence of justification” that rationalized legal grounds
for conquest. Nonetheless, the Court has attempted to create a
constitutionally recognized system of law protecting Indian
rights as long as those rights are defined within the Western
progressive tradition.
• In the late 18th Century, Sagowah—a Cherokee warrior—was
asked by a missionary about changes being wrought by
Europeans. He answered: “I do not understand, for I was born in
another world. Your people and my people speak a different
language…. We have our land, and your people want it.”
• Law, Sagowah understood, is indeed a language. As an abettor
in the task of conquering the continent, the Court, despite its
constitutional humanitarianism and commitment to “the rule of
law,” spoke not the language of the Native American but the
language of the European.