Jason Byrd
March 26, 2008
Deloria & Lytle
American Indians in Historical Perspective
INTRODUCTION
The introduction to the article intends to explain the need for a holistic understanding of not only of the American Indian judicial system but also the history of the American Indians as a people. It stresses the cultural importance of the ability of American Indians to adapt over the years and survive to maintain some autonomy and their identity. It is because of this successful adaptation there are identifiable Indian tribes today.
DISCOVERY, CONQUEST, AND TREATY-MAKING (1532-1828)
The article begins with a definition of discovery and conquest and how these nearly universal laws were not applied to the discovery of America. The discovery and conquest laws allow a discovering party to claim land and riches as their own, furthermore it gives them the right to enslave the conquered people or assimilate them into the society of the conquerers.
The Spanish theologian Francisco de Vitoria suggested the Indians of America were the owners of the land in America, and Spain could not claim title over their land as long as the Indians respected the natural rights of the Spaniards. The Indians were recognized as legitimate society and the European nations entered into treaties with them. This relationship continued for the next two hundred years through the independence of the colonies and the beginnings of the United States.
These peaceful relations changed with a ruling by Chief Justice John Marshall, in 1823 he ruled that discovery did give the European countries title to the Indians' land. He later ruled the Indian nations were “domestic dependent nations” with some sovereignty and rights to federal protection. However, when Marshall tried to exercise the Indians' right to federal protection in Georgia, President Andrew Jackson refused to implement the protection. This refusal of protection was an obvious demonstration of the Indians' very low political and civil status at the time.
The protection of Indian rights became more difficult as the European settlers moved west. Treaties were written mostly to avoid costly battles and to save time as the European settlers expanded west. The treaties were always written in English and were often changed in congress to push them through to ratification. These changes were detrimental to the Indians as the changes were usually to reduce funding or benefits for the Indians.
REMOVAL AND RELOCATION (1828-1887)
Europeans at this time believed Indians would eventually assimilate and become civilized Christians. However the cultural divide between the two communities fostered abrasive relationships. Realizing that integration was not working, President Andrew Jackson suggested voluntary removal of the Indians as a solution, after there was no movement the Indian Removal Act was passed by congress in 1830 to force the migration of Indians to the western plains.
ALLOTMENT AND ASSIMILATION (1887-1928)
The idea behind allotment and assimilation was that the Indians would assimilate if each were to take up a piece of land and farm it; this would bring them closer with their Christian neighbors and allow them to appreciate the lifestyle of the Europeans. This would first breakup millions of acres of land the Indians held that the American government wanted and it would also assimilate Indians into civilized life.
The General Allotment Act of 1887, also known as the Dawes Act, was passed giving the president the power to allot any reservation land if it benefited the Indians, needless to say this policy benefited the government and was used extensively. An amendment to this Act gave the secretary of the interior almost complete power over the allotments giving him discretion to intervene at any point if he did not agree with the use of the land, he could then lease it to whomever he pleased.
Other laws to assist in assimilation were the Major Crimes Act which stripped the Indian judicial system of their power to hear major felonies. The Indian Citizenship Act in 1924 gave citizenship to any Indian who had served in the military during the First World War. The Act of July 31, 1882 provided vacant Army posts and barracks to be used as schools for Indian youths.
REORGANIZATION AND SELF-GOVERNMENT (1928-1945)
As the failures of the allotment policies were apparent it wasn’t until the publication of a study called The Problem of Indian Administration, that the government would admit their mistakes. The study conducted by a nongovernmental agency examined the conditions on the reservations for Indians, the report was critical of the government and the insufficient funds allotted to provide services for the Indians. Additionally the report included many proposals to improve Indian life, all of which were eventually adopted.
Indian revitalization was introduced under President Franklin D. Roosevelt, the idea being to legitimize the tribes by returning power to their governments. However, many of the historical traditions were already lost and the prospect of self-governance proved to be difficult for many tribes.
TERMINATION (1945-1961)
After the Second World War the federal budgets were cut and many programs were evaluated to see if their benefits were worth the financial burdens. The Indian programs were to be reorganized and responsibility was to be transferred from the federal government to the states, furthermore it was recommended that all assistance to the Indians be eliminated. This plan was very similar to past failed policies, namely the Allotment Act; both situations brought dramatic change with little regulation and expectations that the Indians could assimilate on their own terms.
As the termination of federal assistance to Indians proceeded, little resistance in congress was expressed. The government went further to dissolve the autonomy of the reservations by removing their control over civil and criminal issues. The government also became increasingly involved in Indian education.
The tribes were able to maintain their hunting and fishing rights and their tax exemption status of their land was maintained even as the government was to provide law and order services.
President Nixon in 1970 ended the policies of termination as solutions to the tragic Indian situation. The policies had a dramatic effect on the culture of Indians, not necessarily destroying it but damaging it forever.
SELF-DETERMINATION (1961-PRESENT)
The programs passed in the sixties and seventies for the most part were moot, the first significant piece of legislation to pass congress since the end of the termination era was The Indian Self-Determination and Education Assistance Act. This act allowed the tribes to decide if they were going to take part in any program as opposed to some other form of government forcing tribes to participate. But this too was very similar to an earlier program that was never fully realized.
The self-determination era ended with the conservative Reagan administration and the imposed budget cuts were reminiscent of the times following the Second World War.
After the tribal governments were battered during the twentieth century they did emerge in a better position then when they entered the century. Unfortunately the tribes’ fundamental infrastructure has been damaged and the current system of government resembles the systems of the American government as opposed to their traditional system. So the Indians have been able to adapt their government to survive and maintain some of their cultural identity but at a cultural cost.
Date created: June, 2002
Last modified: March, 2008
Copyright ©2003, 2004, 2005, 2006, 2007, 2008
George R. Spangler