As an instructor in Native Studies and anthropology, I get bombarded with having to explain why native peoples on the reservations live the way they live. People just do not understand why Native peoples live in such poverty and simply remain, seeming victims of their own culture. Students are surprised to discover that tribal people are not allowed to have an industry or commerce unless they gain approval from Congress to trade their goods beyond the reservation borders. Some tribes in the past have gained approval, Menominee and Klamath for Timber products, and Osage for oil are some of the better known and perhaps more successful examples of commerce. But that it sometimes takes decades to gain such a bill in Congress and this is why the Indian Gaming Regulatory Act (1988) was/is so important. Under one law all tribes could have commerce and industry which could easily and without much land or effort supply the funding to run tribal government affairs and give services and resources to members of tribes. The following is about the formation of the laws and policies from the beginnings of the U.S. Republic and is by no means comprehensive.
Indian Management Legislation, 1775-1846
The United States modeled its Indian management laws on European policies of Aboriginal land title. Essentially European nations “agreed that the American Indians were people able to reason and capable of conversion to Christianity.” Therefore “their rights in the land they occupied were to be given due consideration. The land was to be taken from them only by mutual agreement… [by] purchase… exchange… or lawful wars.”[i] Furthermore European sovereignties added another layer to their land-claims. Those European sovereigns who first discovered “new lands” were afforded the “Right of Discovery”. This principle gave the first European discoverers[ii] the right to be the first to treat with the Indigenous inhabitants, a principle that likely avoided many extensive military conflicts, between European explorer nations.[iii] An example of the European theory of “right of discovery” is found in the doctrine of Francisco de Vitoria, which states: “certain basic rights inhere in men as men not by reason of their race, creed, or color, but by reason of their humanity.” To individuals that claimed Indians were non-Christians, Vitoria reasoned “even heretics and sinners were entitled to own property… and that the Indians were at least as rational as some of the people of Spain.” And, in reference to “Title by Discovery” Vitoria reasoned that for lands they occupied that Indians “were the true owners, both from the public and private standpoint.”[iv]
The Vitoria doctrine gained papal support in the Bull Sublimis Deus (1537) of Pope Paul II, which decreed: “…the said Indians and all other people who may later be discovered by Christians, are by no means to be deprived of their liberty or the possession of their property… they may and should, freely and legitimately, enjoy their liberty and the possession of their property….”[v]
Felix Cohen writes, “Victoria’s Doctrine of respect for Indian possessions became the guiding principle of Spain’s Laws of the Indies:…Conquistadores, pirates, and even administrative officials sworn to obey the law have not always adhered to this high principle.”[vi] Cohen’s assertion may only relate to the United States and Canada as Victoria’s Doctrine was heavily debated in Spain by De Las Casas, where there was a question as to whether Indians were humans, and did not apply in Latin America.
When the United States was formed, the “Americans” used British land law as the basis of their national land laws. The original land-claims by the United States Government are found in the United States Constitution (May 25, 1787). One intent of the Constitution was to define the power of the national government over the state governments. The state governments were responsible for the laws within the state boundaries. The national government took the responsibility of making laws about issues that crossed borders. One of the key issues that crossed borders is trade, both inter-state and international trade. When the Constitution was written, the tribes were considered by many to be foreign nations. Tribal Nations had signed many treaties with the British, French and with individual states beforehand. But once the United States was formed, treaty-making fell to the National Government, so Thomas Jefferson added the famous “Commerce Clause” to a sentence of the Constitution which in effect the United States “took” upon itself the authority to regulate commerce between Indian Tribes without their consent,
“The Congress shall have the Power…to regulate Commerce with foreign Nations, and among several States, and with the Indian Tribes.”[vii]
The clause is important because it singles out Indian Tribes and places them on the same plane as states and foreign nations. In effect, the clause appears to consider Indian Nations as having the same powers and rights as any other nation. This gives tribal nations great power within the United States over their own sovereignty.
End of the American Revolution
With the end of the Revolution, the United States had inherited the old unsolved western question – the problem of “empire” – with its complications of land, fur trade, Indians, settlement, and government of dependencies. Before the war, several colonies had had extensive and often overlapping claims to land beyond the Appalachians. The prospect of these states acquiring this rich territorial prize seemed quite unfair to those without claims in the west. Maryland, the spokesman of the latter group, introduced a resolution that the western lands be considered common property to be parceled out by Congress into free and independent governments. This idea was not received enthusiastically. Nonetheless, in 1780, New York led the way by ceding her claims to the United States. She was soon followed by the other colonies and, by the end of the war, it was apparent that Congress would come into possession of all the lands north of the Ohio River and probably of all west of the Allegheny Mountains. This common possession of millions of acres was the most tangible evidence of nationality and unity that existed during these troubled years and gave a certain substance to the idea of national sovereignty. Yet it was at the same time a problem which pressed for solution. (http://www.let.rug.nl/usa/outlines/history-1954/the-formation-of-a-national-government.php)
Articles of Confederation
This solution was achieved under the Articles of Confederation, a formal agreement which had loosely unified the colonies since 1781. Under the Articles, a system of limited self-government was applied to the new western lands and satisfactorily bridged the gap between wilderness and statehood. This system, set forth in the Northwest Ordinance of 1787, has since been applied to all of the continental possessions and most of the insular possessions of the United States. The Ordinance of 1787 provided for the organization of the Northwest Territory initially as a single district, ruled by a governor and judges appointed by Congress. When this territory should contain five thousand male inhabitants of voting age, it was to be entitled to a legislature of two chambers, itself electing the lower house. In addition, it could at that time send a nonvoting delegate to Congress. No more than five nor less than three states were to be formed out of this territory, and whenever any one of them had sixty thousand free inhabitants, it was to be admitted to the Union “on an equal footing with the original states in all respects.” Six “articles of compact between the original states and the people and states in the said territory” guaranteed civil rights and liberties, encouraged education, and guaranteed that “there shall be neither slavery nor involuntary servitude in the said territory.”
The national government should have had the power to lay whatever tariffs were necessary and to regulate commerce -but it did not. It should have had the authority to levy taxes for national purposes-but again it did not. It should have had sole control of international relations, but a number of states had begun their own negotiations with foreign nations. Nine states had organized their own armies, and several had little navies of their own. There was a curious hodepodge of coins minted by a dozen foreign nations and a bewildering variety of state and national paper bills, all fast depreciating in value. (http://www.let.rug.nl/usa/outlines/history-1954/the-formation-of-a-national-government.php)
(In short, the federal government needed a solution to inter-state conflicts over commerce and land claims and needed to take over such laws and policies. The Northwest Ordinance of 1887 began to manage that set of problems for new lands being claimed from tribal peoples).
In successive legislation, the United States built upon the original Commerce Clause and took greater rights in relation to the control and management of trade. The original Commerce Clause was too broadly focused and so the United States had to manage and refine what those rights were. Additional legislation refined which offices within the U.S. government will have the duty to manage Indian rights, and gradually whittled away some of the too-broadly defined rights of Indian nations. In addition, the Constitution grants to the President the power to make treaties with foreign nations and to control the public lands Indians occupied.[viii]
[the President] “He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the senators present concur.”[ix]
The following statement emphasizes the “sole” right of the United States federal government of regulation of trade with the tribes in 1786.
“…the United States in Congress…have the sole and exclusive right and power of regulating the trade, and managing all affairs with the Indians not members of any states…”[x]
Trade here becomes the right of Congress, similar to trade with any other foreign sovereignty. This statement unifies and solidifies the right of trade with Tribal nations under a central national government, and away from the states or commercial interests. It is also pointed out that many Indians were still not considered American citizens.
Henry Knox, Secretary of War for the United States understood the value of peaceful settlement with Indian Nations. Secretary Knox in 1786 set the tone for the next 60-70 years by abandoning the policy of “right of conquest” in favor of the British colonial practice of purchasing the right of the soil from Indian Tribes. Through this method was the means of gaining peaceful resolutions generated through the needs of Americans for land.[xi]
Following Knox’s policy, the closest the federal government approximated a mission statement for Indian Affairs is the Northwest Ordinance. The Northwest Ordinance is the original policy that guided the United State’s treatments of the Indians and was passed into law on July 13, 1787.
“The utmost good faith shall always be observed towards the Indians; their land and property shall never be taken from them without their consent; and in the property, rights, and liberty, they never shall be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity shall time to time be made, for preventing wrongs being done to them, and for preserving peace and friendship with them.”[xii]
Laws such as the Northwest Ordinance were generally ignored by the average American settler, rancher, and miner, which led to additional acts, policies, and laws which often respected the desires of the Americans to continue expansion.
The Northwest Ordinance of 1787
The Northwest Ordinance, adopted July 13, 1787, by the Confederation Congress, chartered a government for the Northwest Territory, provided a method for admitting new states to the Union from the territory, and listed a bill of rights guaranteed in the territory. Following the principles outlined by Thomas Jefferson in the Ordinance of 1784, the authors of the Northwest Ordinance (probably Nathan Dane and Rufus King) spelled out a plan that was subsequently used as the country expanded to the Pacific.
The following three principal provisions were ordained in the document: (1) a division of the Northwest Territory into “not less than three nor more than five States”; (2) a three-stage method for admitting a new state to the Union—with a congressionally appointed governor, secretary, and three judges to rule in the first phase; an elected assembly and one nonvoting delegate to Congress to be elected in the second phase, when the population of the territory reached “five thousand free male inhabitants of full age”; and a state constitution to be drafted and membership to the Union to be requested in the third phase when the population reached 60,000; and (3) a bill of rights protecting religious freedom, the right to a writ of habeas corpus, the benefit of trial by jury, and other individual rights. In addition the ordinance encouraged education and forbade slavery.
In addition, the NWO set the policy for treating tribes:
Art. 2. The inhabitants of the said territory shall always be entitled to the benefits of the writ of habeas corpus, and of the trial by jury; of a proportionate representation of the people in the legislature; and of judicial proceedings according to the course of the common law. All persons shall be bailable, unless for capital offenses, where the proof shall be evident or the presumption great. All fines shall be moderate, an no cruel or unusual punishments shall be inflicted. No man shall be deprived of his liberty or property, but by the judgment of his peers or the law of the land; and, should the public exigencies make it necessary, for the common preservation, to take any person’s property, or to demand his particular services, full compensation shall be made for the same. And, in the just preservation of rights and property, it is understood and declared, that no law ought ever to be made, or have force in the said territory, that shall, in any manner whatever, interfere with or affect private contracts or engagements, bona fide, and without fraud, previously formed.
Art. 3. Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged. The utmost good faith shall always be observed towards the Indians; their lands and property shall never be taken from them without their consent; and, in their property, rights, and liberty, they shall never be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity, shall from time to time be made for preventing wrongs being done to them, and for preserving peace and friendship with them.
(note- article two does not state “all citizens,” so this would technically include native peoples?)
The Indian Intercourse act of 1790 set up the initial policies for regulating trade with tribes, including an internal structure of commissioner, superintendents, and agents in claimed territories. This is all to be managed under the President of the US, who later assigns the responsibility to the Department of War, then even later to the Interior Department.
Initially, the States had more governmental authority over their affairs than today, and so the United States sought ways to raise funds to run the central federal government. One of the results was to pass laws that would regulate trade between the states. These tax laws were a touchy subject because of the fact that most Americans fought against “taxation without representation” by the British, yet still the young country needed funds to support a military, to carry on affairs with foreign countries, and to manage affairs between states. One of these acts, The Trade and Intercourse Act of 1834, “that all that part of the United States west of the Mississippi and not within the states of Missouri and Louisiana, or the territory of Arkansas, . . . . be taken and deemed to be the Indian country.” Essentially the act defines Indian Country, proscribes the contracts with Indians, and empowers the Commissioner of Indian Affairs to regulate traders and the prices of goods sold to Indians.[i]
The Northwest Ordinance and the Trade and Intercourse Acts (1790, 1793, 1796, 1799, 1834) set the tone for the policies and management of tribal nations within the boundaries of the United States. This series of laws was intended to regulate and control the non-Indians who were taking advantage of tribes through land exchanges. The acts actually became the bedrock for much of what we know to be Indian Policy today. The Trade and Intercourse Acts managed how land policies, economic activities, settlements by non-Indians, and established criminal and civil court systems. Within these larger concepts lies the bulk of what is Indian Law in the United States. Essentially tribal nations are sovereign nations within and dependant upon another sovereign nation and the Trade and Intercourse Act seeks to define that relationship.
1790: “An Act to Regulate Trade and Intercourse with the Indian Tribes”
Section 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That no person shall be permitted to carry on any trade or intercourse with the Indian tribes, without a license for that purpose under the hand and seal of the superintendent of the department, or of such other person as the President of the United States shall appoint for that purpose; which superintendent, or other people so appointed, shall, on application, issue such license to any proper person, who shall enter into bond with one or more sureties, approved of by the superintendent, or person issuing such license, or by the President of the United States, in the … sum of one thousand dollars, payable to the President of the United States for the time being, for the use of the United States, conditioned for the true and faithful observance of such rules, regulations and restrictions, as now are, or hereafter shall be made for the government of trade and intercourse with the Indian tribes. The said superintendents … shall be governed in all things touching the said trade and intercourse, by such rules and regulations as the President shall prescribe. And no other person shall be permitted to carry on any trade or intercourse with the Indians without such license. … No license shall be granted for a longer-term than two years. Provided nevertheless, That the President may make such order respecting the tribes surrounded in their settlements by the citizens of the United States, as to secure intercourse without a license, if he may deem it proper. (https://www.encyclopedia.com/history/encyclopedias-almanacs-transcripts-and-maps/us-congress-act-regulate-trade-and-intercourse-indian-tribes)
Trade and Intercourse Acts, by year (summarized and abridged)
|July 2, 1790||
|March 1, 1793||
|May 19, 1796||
|March 3, 1799||Minor changes only|
|June 30, 1834||Education of Indians|
The chart represents a summary of the larger issues covered by the Trade and Intercourse Acts. The acts also sought to begin the process of assimilation of Indians into American society. From the earliest act of July 2, 1790, the U.S. began an assimilation process of “civilizing” the Indians through the application of state and federal laws within Indian lands. This is in effect a re-education of Indians or acculturation into American society by changing the very laws they lived by, in effect changing their culture. When that policy was not effective The Intercourse Act of June 30, 1834, developed further the civilization and educational policy for the Indians and established the original intentions of removal of the tribes west of the Mississippi to Indian Country.
“In that time, from the nature of the country, and of the products raised by them, they can subsist themselves by agricultural labor, if they choose to resort to that mode of life; if they do not, they are upon the skirts of the great prairies, where countless herds of buffalo roam, and a short time suffices to adapt their own habits to the changes which a change of the animals, destined for their food, may require. Ample arrangements have also been made for the support of schools; in some instances, council houses and churches are to be erected, dwellings constructed for the chiefs, and mills for common use. Funds have been set apart for the maintenance of the poor, the most necessary mechanical arts have been introduced, and blacksmiths, gunsmiths, wheelwrights, millwrights, &c., are supported among them. Steel and iron, and sometimes salt, are purchased for them; and ploughs, and other farming utensils, domestic animals, looms, spinning wheels, cards, &c., are presented to them. And besides these beneficial arrangements, annuities are, in all case, paid, amounting, in some instances, to more than thirty dollars for each individual of the tribe; and in all cases sufficiently great, if justly divided and prudently expended, to enable them, in addition to their own exertions, to live comfortably. And, as a stimulus for exertion, it is now provided by law that “in all cases of the appointment of interpreters, or other persons employed for the benefit of the Indians, preference shall be given to persons of Indian descent, if such can be found who are properly qualified for the discharge of the duties.
“Such are the arrangements for the physical comfort, and for the moral improvement, of the Indians. The necessary measures for their political advancement, and for their separation from our citizens, have not been neglected. The pledge of the United States has been given by Congress, that the country destined for the residence of this people, shall be forever “secured and guaranteed to them.’ A country, west of Missouri and Arkansas, has been assigned them, into which the white settlement are not to be pushed. No political communities can be formed in that extensive region, except those which are established by the Indians themselves, or by the United States for them, and with their concurrence. A barrier has thus been raised, for their protection against the encroachments of our citizens, and guarding the Indians, as far as possible, from those evils which have brought them to their present condition. Summary authority has been given by law, to destroy all ardent spirits found in their country, without waiting the doubtful result and slow process of a legal seizure. I consider the absolute and unconditional interdiction of this article, among these people, as the first and great step in their amelioration. Half-way measures will answer no purpose. These cannot successfully contend against the cupidity of the seller, and the overpowering appetite of the buyer. And the destructive effects of the traffic are marked in every page of the history of our Indian intercourse.”
The Trade and Intercourse Acts, while setting into law by the United States, were generally ignored by questing Americans who moved westward toward greater freedom and opportunity. As well, the United States was not always diligent in adhering to the letter of the laws as white settlement of Indian lands and murdering of tribes was ignored, while Indians who made lesser acts like thievery from whites were dealt with extremely harshly. In the Intercourse Act of 1834 we see the origins of an assimilation program by the federal government. The integration of Indians into American society through education in jobs where they can gain employment in the United States presents the initial stages of an assimilation program meant to help integrate Indian peoples.
The assimilation program of the United States begins the process whereby Indians are to be civilized and therefore saved from their savage and non-christian lifeways. That is the argument which appears in most of the early justification of civilizing acts. It is the policy which, before being fully crystallized, attempts to use force to make the Indians stop living as Indians, by kidnapping children from their homes and making them attend boarding school where they may never again see their families, or by training tribes of people to subsist on farming, within the worst lands and using unfamiliar methods. The assimilation program failed at every stage within every new generation of politicians to produce assimilated peoples and so the U.S. government continue to modify its methods to great effectiveness. Assimilation is the central principle behind the justification for the elimination of Indian rights. It is a false justification because assimilation-ness assumes that Indian rights are lost once a person stops living in the Indian way, that culture equates with legal and political rights. The United States exploited this assumption and changed the policies and definitions of what it took to be an Indian until the Indian people appeared to be assimilated and thus undeserving of further Indian rights, rights which they inherited from their ancestors who signed the treaties. Therefore assimilation is an important concept which we will follow through the chapters parallel with land and sovereignty rights.
The Indian Removal Act of 1830, Provided for the removal of the Cherokees west of the Mississippi, to “Indian Country”. This act set into motion the general policy of the United States of the removal of Indian Tribes from regions to be claimed by White Americans. However, the Cherokees challenged this law in the Supreme Court, Cherokee Nation v. Georgia. On March 18, 1831, Chief Justice John Marshall delivered a decision where he found that The Cherokees formed “a distinct political society, separated from others, capable of managing its own affairs and governing itself”, that the relations of the Cherokees to the United States was not one of a “foreign state” but something different. Justice Marshall said that the Cherokees were capable of maintaining the relations of peace and war and of being responsible for violations of their political engagements as recognized by the treaties. Finally, that Indians were members of “domestic dependant nations” that the Indian nations were in “a state of pupilage. Their relation to the United States resembles that of a ward to his guardian.”[i] Cherokee Nation did not deliver a victory for the Cherokees and appeared to support President Jackson’s removal policy. The Cherokees challenged again in Worcester v. Georgia (March 3, 1832), where they won the decision allowing them to remain in Georgia. Georgia ignored the court’s decision, and with the support of President Jackson, the Cherokees were forced on the Trail of Tears. Thus, herein is an example of how the United States ignored its own laws that were purported to support Indian land-claims.
The divesting of the Indian owned lands was accomplished through a series of laws and policies, all of which the federal government reasoned, were to help, free or otherwise aid the Indians in their plight. What the federal legislation actually did was manage to divest the Indians of their lands, their rights, their sovereignty, and their identities. Several times, the Senators and Congressmen called their new policies “an experiment.”[ii] The results of these experiments were the elimination of aboriginal title and the nearly complete disempowerment of Tribal Nations.
In this manner, well before the United States held sole claim to the Oregon Territory of the south, Tribal nations were divested of their rights, without their knowledge, without consultation, without their approval, and without a right to accept or deny any of these laws and policies after being occupied for decades by American settlers. Settlers ignorant of the rights of the tribes, uncaring of their effect on the tribes, took land under what has been called manifest destiny. Never an official policy, Manifest Destiny in light of the series of laws divesting tribes of their sovereignty appear to me to be a way to ignore the actions of the federal government and to blame instead American settlers for their whimsical religious dreams of a better life, wealth and happiness.
[i] Tyler, S. L. (1973). A History of Indian Policy. Washington, D.C., United States Department of the Interior, Bureau of Indian Affairs.
[ii] Discovery meant the first European to set foot on the soil, make some measurements of the geography, and making statements formally claiming the “newly” discovered land.
pp 19, clearly the “new lands” were not new to the indigenous peoples, only to Europeans.
Pp 20, Cohen, Felix. “Original Indian Title,” Minnesota Law Review December 1947. De Indis II, De Indis III.
Pp 20-21. Cohen, Felix. “Original Indian Title,” Minnesota Law Review December 1947.
Pp 21. Cohen, Felix. “Original Indian Title,” Minnesota Law Review December 1947.
[vii] United States Constitution Article 1, section 8, Paragraph 3 (emphasis added).
[viii] Brophy, W. A. and S. D. Aberle (1966). The Indian: America’s Unfinished Business, Report of the Commission on the Rights, Liberties and Responsibilities of the American Indian. Norman, University of Oklahoma Press.
[ix] United States Constitution, Article 2, section 2, Paragraph 2.
[x] Ordinance for the Regulation of Indian Affairs, August 7, 1786, 1st paragraph.
[xi] Ibid pp 35.
[xii] Brophy, W. A. and S. D. Aberle (1966). The Indian: America’s Unfinished Business, Report of the Commission on the Rights, Liberties and Responsibilities of the American Indian. Norman, University of Oklahoma Press.
[i] Prucha, F. P. (1986). The Great Father: The United States Government and the American Indian. Lincoln, University of Nebraska Press.
[ii] Washburn, W. E. and Mexico. (1975). The Assault on Indian Tribalism : The General Allotment Law (Dawes Act) of 1887. Philadelphia, Lippincott.
A version of this essay was a chapter of my dissertation completed in 2007, which was eventually taken out of the dissertation to make room for more relevant chapters. I have lectured about the impact of the Trade and Intercourse acts for years.