Text Content or SSML code:
At the time Madison wrote Monroe about the “red [race] on our borders,” the federal government had become the sole entity empowered to enter into agreements with tribes and establish policies affecting them. Some states, however, claimed the power to control the conduct of tribes located within their borders. The vast amount of territory acquired by the United States in the 1803 Louisiana Purchase and an 1819 treaty with Spain was primarily occupied by tribes, making the issue of who “owned” those lands more critical. Coastal states began selling what they called “preemptive” rights to unsettled lands within their borders, meaning that a settler buying land from the state had superior title to any other claimant. The basis for the title came from the state’s claim that it owned the land, either because of a colonial grant, discovery, or the conquest of a tribe. This practice raised the question of the legitimacy of what was termed an “Indian title,” one derived from a transfer of land “owned” by tribes to settlers. The legitimacy of “Indian titles” to land was considered by the Supreme Court in Johnson v. McIntosh (1823). Chief Justice John Marshall declared, on behalf of all his fellow justices, that when European nations had settled America they had obtained “fee simple” ownership of Indian lands (uncontested title to those lands) through discovery or conquest, so “Indian titles” amounted only to rights of occupancy. The decision assured that states did not have to formally purchase tribal lands before selling them to settlers. Johnson v. McIntosh was the first of three Marshall Court decisions in the 1820s and 1830s that marginalized the legal status of Amerindian tribes. Part of Marshall’s rationale for characterizing Indian titles to land as granting only occupancy rights was that Indians were “fierce savages” who stood in the way of settlement. However, as “savages” tribes presented a problem of governance as the American nation expanded westward into “Indian territory.” That problem was solved by making tribes wards of the federal government and removing them from states where their presence formed a barrier to settlement. Two Marshall Court decisions, Cherokee Nation v. Georgia and Worcester v. Georgia, justified these policies. Despite the fact that the Cherokee tribe had long been established within Georgia’s boundaries, that state’s legislature passed a series of laws abolishing Cherokee government and distributing Cherokee lands to white settlers. The Cherokees challenged the constitutionality of these laws, maintaining that treaties they had entered into with the federal government in which their rights to lands they occupied had been recognized should prevent Georgia from acting. They also claimed that article III of the Constitution, which gave the Supreme Court jurisdiction over cases involving “foreign states,” required the Court to hear their appeal, because the Cherokee nation, as evidenced by its treaties with the United States, was a foreign state. Cherokee Nation and the subsequent Worcester case, in which two non-Cherokee ministers were imprisoned under one of the Georgia laws for preaching within the Cherokee nation, posed difficulties for the Marshall Court. The Court’s narrow holding in Cherokee Nation was that it lacked jurisdiction to hear disputes between states and Indian tribes. Along the way, however, a minority of justices concluded that the Cherokee nation was a “domestic dependent nation”: it had territorial integrity and powers of self-government but was in a relationship with the federal government that “resembled that of a ward to its guardian.” The minority’s conclusion, articulated in an opinion by Marshall, announced that the federal government held a “trust” relationship with tribes, even though there was no constitutional basis for that claim. Marshall’s opinion in Cherokee Nation also intimated that the states had no power to regulate the affairs of Indian tribes within their borders or to enter into treaties or other legal agreements with them. That intimation was openly endorsed by the Court in Worcester: Marshall, for the Court, found that the sole governmental body authorized to regulate affairs with tribes was the federal government. Although Cherokee Nation and Worcester cemented the propositions that the federal government was the exclusive agent for dealing with tribes and that tribes were its wards, those conclusions were not based on the Constitution. Rather, they were based on the experience of settler-tribal interactions over two centuries of American history, which had resulted in tribal members losing their land, being reduced to marginal status in settler communities, and progressively retreating or being forcibly relocated to regions west of the line of frontier settlement. In the years after Worcester, the federal government took for granted that it was the exclusive agent for engaging in intercourse with tribes and managing tribal affairs. Third stage (1860s to 1940s) After Worcester, it was clear that states could not force tribes to give up their lands or force them out of state territory. Nonetheless, the federal government, mindful of the constant pressure from settlers to acquire tribal lands, confronted tribes with the threat of eventually losing their lands if they did not agree to relocate to western regions. The result was a series of treaties between the United States and tribes in which the tribes, in exchange for relinquishing land in states east of the Mississippi, were given large tracts of land in federal territories in the trans-Mississippi west. By the 1840s, “removal,” as it was called, had resulted in tribes possessing large areas of land stretching from Minnesota to Texas. Removal, however, proved only a temporary solution to the problem of tribes standing in the way of continued white settlement of the West. By the 1850s, after gold was discovered in California, settlers seeking routes to the West Coast poured into the trans-Mississippi west, and the railroad industry began to establish lines west of the Mississippi. The Bureau of Indian Affairs lacked the resources to prevent conflicts between settlers and tribes along emigration routes, and the idea of preventing settler emigration was never contemplated. Further relocation of tribes appeared to be the only solution. The idea of Indian reservations emerged out of settler demand for access to emigration routes in the trans-Mississippi west. Between the 1850s and 1880s, the federal government entered into agreements with tribes in which the tribes ceded large portions of land that had been allocated to them in previous treaties. In exchange the tribes “reserved” other portions of land, with distinct boundaries, for their own use. Those “reservations” of tribal land were designed to create autonomous regions where tribes would govern themselves, undisturbed by settlers. Although the idea of reservations originally had some humanitarian dimensions—proponents of the reservation model maintained that it would preserve tribal autonomy and afford the tribes secure possession of their land—the main purpose of reservations was to keep tribes out of the way of expanding settlement. By the 1880s, nearly all of the public land in the area between the Mississippi River and the Pacific coast had been acquired by the federal government and was dotted with reservations. The reservation system accomplished its purpose, clearing the way for white settlement of the trans-Mississippi west. But it encountered difficulties after the Civil War. The original humanitarian conception of Indian reservations allowed tribes space where they could retain their traditional ways of life without contact with settlers that disadvantaged them. But problems arose in maintaining that space. Boundaries were drawn every time a new reservation was created, but additional white settlement in areas adjacent to reservations put pressure on them, and eventually the federal government redrew them. In addition, many members of tribes were not inclined to remain within the boundaries of a reservation. By the 1880s, it had become clear that the fate of tribes on reservations resembled that of all the tribes that had had regular contact with white settlers since the first contact in America: a decline into poverty and degradation. Instead of becoming symbols of tribal autonomy, the reservations became illustrations of the inability of traditional tribal ways of life to adapt to a society now dominated by whites. Out of those concerns came a program of allotments, first instituted by the General Allotment Act (commonly known as the Dawes Act) of 1887. Allotment sought to replace the existing uses of land on reservations—tracts of communally owned land with no precise boundaries—with “allotted” land with distinct borders that individual tribal members would own. The allotment program drew on a long association in Anglo-American culture between fee simple ownership and efficient and productive uses of land, prosperity, and independence. By turning from communal ownership and use of land to individual use, proponents of allotment believed, tribe members would become more self-sufficient and prosperous. While some tribes supported allotment, most were unenthusiastic. Tribes pointed out that their communal uses of land were not inconsistent with productivity, that they were not interested in abandoning their traditional tribal ways for those of white American society, and that they were fearful that tribal fee simple ownership would tempt unscrupulous whites to purchase more tribal lands.