(In researching for this Article I realized that I will have to write a Part 4 just to accommodate the “Policy Swings” that took place after the 1934 Indian Reorganization Act up to the present with regard to the U.S. recognizing its Trust Responsibility to “individual” Indians and not just Indians enrolled in Federally Recognized Tribes.)
In this, Part 3 of my commentary on the Canadian Supreme Court case of Daniels V. Canada, I continue to answer the questions I posed in Part 1 and Part 2 as to whether the U.S. should follow the lead of Canada and recognize “other classes of Indians and Indian individuals” beyond just Federally Recognized Tribes in light of the U.S. doing so in the past when it wanted to maintain control of Indian Lands and resources as well as control over the lives of “individual Indians” and their interactions with non-Indians and States?
The Canadian Supreme Court, in Daniels v Canada/Crown, in which the Court found that the Canadian Metis, and Non-Status Indians were “Indians” (under the Canadian Constitution and Laws) to whom the Canadian Government must extend the same benefits as it does to Canadian Status Indians (Treaty Indians and those with Reserves) no matter if they had their own land or communities, but descended from Historical Tribes or Indian ancestors. The Daniels Court reasoned that because Canada had. throughout the History of its relationship with its Indigenous Population, assumed it had, and did exercise, its authority over not only “Treaty Indians” and “Status Indians” but also over other Indians, individual Indians and Metis (Mixed Bloods) when it was “convenient to do so”, should not then disavow the relationship when it was not convenient or was costly to do so. (Emphasis mine.)
The history of the development of Federal Indian Law in the U.S. reveals a marked similarity to the development of Canadian Law regarding the United States’ relationship with individual Indians as individuals as well as Tribes. As with Canada, the U.S. has assumed jurisdiction over the Indian Tribes and Indian individuals when it was “convenient” to do so and/or to protected some “interest” that the United States asserted, especially with regard to land and resources, but also with regard to the lives of individual Indians, be they Treaty Reservation Indians or not.
As with Canada, much of U.S. Indian Policy, since the U.S. became an independent nation, has been driven by the need to control “dominion” over, and settlement of. what was previously Indian Lands. First the Colonial Government(s) and then the successor United States Government, though various enactments, asserted control over who could “Treat” with the Indians for land cessions, ultimately claiming an “exclusive” right to make Treaties and pass laws with regard to Indians. These were called the “Intercourse Acts” or “Non-Intercourse Acts”. The Trade and Intercourse Act of 1834 is an example of one such Act in which the U.S. exercised its “exclusive” right to legislate in the field of Indian Affairs. Interestingly, this Act is both an exercise of the U.S. claiming exclusive “Dominion” over “Indian Country, while at the same time exercising its claimed exclusive jurisdiction over the conduct of individuals within Indian Country for purposes of Criminal Jurisdiction while exempting individual Indians. The 1834 Act provides “That so much of the laws of the United States as provides for the punishment of crimes committed within any place within the sole and exclusive jurisdiction of the United States, shall be in force in the Indian country: Provided, the same shall not extend to crimes committed by one Indian against the person or property of another Indian.”.
In passing a series of statutes dealing with the “civilization” and “assimilation” of Indians, Congress also began to legislate certain policies that required Indian Children be educated “in the ways of “civilized” man. One of the early pieces of such legislation was the “Act of March 1819 entitled "An Act making provision for the civilization of the Indian tribes adjoining the frontier settlements. It provides: “That for the purpose of providing against the further decline and final extinction of the Indian tribes, adjoining the frontier settlements of the United States, and for introducing among them the habits and arts of civilization, the President of the United States shall be, and he is hereby authorized, in every case where he shall judge improvement in the habits and condition of such Indians practicable, and that the means of instruction can be introduced with their own consent, to employ capable persons of good moral character, to instruct them in the mode of agriculture suited to their situation ; and for teaching their children in reading, writing, and arithmetic..”
The U.S. passed legislation throughout the 19th century dealing with the “Introduction of Intoxicating Liquor” to Reservations and the control of “Traders” (1790) in Indian Country. The U.S. even had an “exclusive” on Trading wherein the only Trading Houses authorized were “Federal” Trading Houses (1796-1822). These Federal Acts were passed to carry out the Congressional intent of protecting individual Indians from unscrupulous Traders and the “depredations” caused by “introduction of Intoxicating Liquor” and the cheating of Indians by unlicensed and licensed traders alike. The officials supervising these Federal Trading Houses were referred to as “Superintendents”, thus creating a system of “Indian Agents and/or Superintendents” who were responsible for carrying out the policies of the Federal Government and enforcing such laws as were the basis of such policy. The first of these was passed in 1775 and, interestingly, named Benjamin Franklin and Patrick Henry as “Commissioners” of one of the three geographical “Departments” delineated in that Act. In 1789 the First Congress created the “War Department” and placed Indian Affairs under the Secretary of War. In subsequent Acts during this time period Congress began to refer to the U.S. Officials under the Secretary as “Superintendents” signifying their duty of overseeing the daily lives of the Indians in their care. . Secretary of War Calhoun created the “Bureau of Indian Affairs” in 1834 out of which was born the Bureau of Indian Affairs that still exists to this day and the “Indian Affairs Commissioners” that are now referred to a “BIA Regional Directors” and the head of the BIA as the Commissioner of Indians Affairs. The “Assistant Secretary for Indian Affairs” title came from later reorganization.
Indian Affairs remained under the Department of War until the creation of the “Home Department of Interior” in 1849. A subsequent debate ensued that lasted some 40 years over whether Indian Affairs should be transferred back to the War Department and kept under military supervision or remain under the Department of Interior and civilian supervision. In actuality “both” persevered for some time, with Congress allowing Military Officers to act as “Indian Agents”, even where there were already civilian “Superintendents”. This reflected the nature of the debate being one of what one Official the “Mohammedan” principle of “The Koran or Death” and the Christian principle of “Convert or Die”. In other words, “adopt the Christian ways of civilization or death”. A hybrid policy eventually won the day, but still remained a “Hobsons Choice” of Death by Military annihilation or assimilation of “civilized” ways under civilian authority, perhaps a slower death under the latter. Maintaining “a primitive and uncivilized existence” was simply not an option in the eyes of the U.S. Government.
The creation of the Indian Affairs Superintendent System led to the daily exercise of authority over children and adult Indians and restricted their ability to go to and from the reservation, and their ability to access certain funds generated by Indian Land Cessions and other land generated income. The latter policy still exists in some form today with regard to “Individual Indian Money (IIM) Trust Accounts” maintained by the Bureau of Indian Affairs. The Superintendent System took on an even more intrusive role after the passing of the “Dawes Act” of 1877 which hailed the “Allotment Period” in which the U.S. passed various acts allowing for deeding certain amounts of lands to “individual Indians” and allowing the “alienation” of those lands either voluntarily or involuntarily after certain time periods. Those lands that were not allotted became “surplus” lands that could be “homesteaded” by non-Indians with the Congressional intent of integrating Indians into the white world and, though daily interaction and though intermarriage, thus either civilizing the Indians or breeding their Indian Blood out.
Not coincidentally, this period also marked efforts by Congress to define who was an Indian for purposes of various acts. The “frame of reference” in use at the time to define race were various acts and practices defining who was a Negro for purpose of laws governing slavery and later state laws (Jim Crow) pertaining to Intermarriage between Negros and other races. The prevailing definition of Negro was “anyone who had a parent that was defined as Negro, thus anyone with even a smidgeon of Negro Blood was classified as Negro”. The U.S. translated this “blood quantum” system over to Federal Indian Law and began the practice of deciding who was Indian by how much “Indian Blood” they possessed and/or whether they were a “descendent” of an Indian Allotment owner for purposes of inheritance. Thus the birth of using both Blood Quantum and Descent (Parentage) as the basis of determining to whom Federal Law and policy would apply. It was also in this period that Congress made no distinction for non-Tribal people “living among the Indians” as those individuals were “accepted by the Indians as Indians”, the Tribes making no such distinction either, even with regards to White People.
After a Supreme Court decision that found that the U.S. had no right to punish an Indian for Murder in Indian Country, the U.S. Congress quickly responded by exercising jurisdiction over the “criminal conduct” of individual Indians within the Reservations, particularly with regard to Indian on Indian Crimes (The Indian Major Crimes Act of 1885). The Statute declaring this jurisdiction was upheld by the Supreme Court in a rather extraordinary case in which the Court defined the power over Indian Affairs as “Extra-constitutional” and “Plenary” the boundaries of which were the “good conscience and good faith” of Congress in carrying out its Trustee to Ward Relationship (U.S. v. Kagama 1886). Armed with this new Supreme Court created “Plenary Power”, congress passed the Dawes Act, mentioned above, the following year. Thus began a period of land dispossession and settlement of non-Indians within Indian Country that resulted in some 90 Million acres of land either “taken” from Tribes or from Tribal individuals either voluntarily or involuntarily, the latter being the wholesale disposition from Tribes under so called “Homestead Acts” and the disposition of land from individual Indians. Individual Indians could also be declared “civilized” by the Bureau of Indian Affairs and allowed to alienate their lands, sometimes accompanied by the right to vote and sometimes because they owed debts including debts to the Federal Government. Some lands passed out of individual Indian ownership because they were inherited by non-Indians.
In 1934, responding to the rapid alienation of Indian Lands under the Dawes Act, and advocacy from some rich White Liberal intellectuals and their Socialist friends who advocated for such land alienation to cease, Congress passed the Indian Reorganization Act (IRA) which allowed Indian Tribes to “reorganize under a Constitution and Bylaws” for the purpose of governing their own affairs, but under the auspices of the Superintendent System. Thus continued the “control” of Tribes and individual Indians so that they could not “improvidently” dispose of Tribal Lands and individual Indian Lands. The IRA Constitutions contained a requirement that all amendments be approved by the Secretary of Interior, again allowing controls on the part of the U.S. so that there remained a means of the “Trustee” making sure the “Beneficiary” did not squander the Trust (the land and assets of the Tribe). Tribes were allowed to set up “Corporate” entities under Section 17 of the Act but only on the approval of the Secretary of Interior and usually with “controls” built in to prevent “improvident” business risks being taken or incurring too much debt and so endangering Tribal assets. These Corporate entities could now waive “Tribal Sovereign Immunity” for the purpose of enticing non-Indians to enter into business arrangements with the Tribal Corporations. No so coincidentally, the head of Indian Affairs was at the time was one John Collier, a socialist leaning friend of the aforementioned White Liberals, many of whom had visited the Pueblos in New Mexico and became quite enamored with the Pueblo of Taos, establishing an Artist and Writing community near there as well as Tuberculosis Sanitariums. One of the leaders was Mabel Dodge (Dodge Motors) and she established a permanent home there and took a male Pueblo companion.
Section 19 of the 1934 Indian Reorganization Act includes definitions of Indians, Tribes, and adult Indians: “The term "Indian" as used in this Act shall include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction, and all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation, and shall further include all other persons of one-half or more Indian blood. Yet again, Congress continued to legislate not just for the “protection” and “control” of Tribes and individual Indians, but also attempted to define to whom it had a Trust Responsibility. In other words, who is an Indian? Up to this point (1934) one can discern that Congress, the Courts and the Executive Branch did not assume that its Trust Responsibilities ran only to “Tribes” as a political body, but also so to the individual “Indians” who make up the “aggregate called a Tribe”. The latter words being the Supreme Court’s.
Thus from the time of Colonization and during the time the Colonies became the United States, continuing up to early part of the 20th Century (1900’s), the United States Federal Government claimed and asserted (and assumed) that it had the exclusive “right” to deal with the Indian Tribes that held “dominion” over the lands of North America and the right to pass laws restricting such right to the U.S. as opposed to the individual Colonies, States and Territories. With that right came a responsibility of “protection” and “civilization” to the Indians who were the occupants of the lands and protection of the settlers now on the lands which the Indians ceded and those who would go among them to Trade or to Educate them in the ways of “Civilized Man”.
In Part 4, we will examine the time period after the 1934 Indian Reorganization Act and up to the present policy of Self-Determination and Self-Governance. I will try to answer the questions of why the United States appears to be abrogating its Trust Responsibility to individual Indians beyond those in “Federally Recognized Tribes”, and why it should?
Harold Monteau is a Chippewa Cree Attorney. He is the former Chairman of the NIGC and is a consultant for Economic Development and Finance of Tribal and Indian Business Ventures, particularly for Credit Challenged Tribal Business entities.