So, to briefly describe why I'm posting this... I recently enrolled at the Northwest Indian College. I am taking their Native Studies Leadership program, which deals heavily with the history of the U.S. federal policy regarding U.S.-Tribal relations, among a number of other things. The current class I am taking now requires me to write some decent sized papers and I figured it would make great content for the sub. That being said, I have decided to turn it into a series for the sub.

It has been reformatted for your viewing pleasure.

When big decisions are made by those in charge, let’s say of a country, the decision is often considered in the context of how the country will be affected as a whole. It might consider an area of special interest, a sector here or there, but ultimately, one area does not necessarily dictate entire decisions. Only pressing matters usually sway the course of a decision. This is evident in practically all national decisions and it is certainly evident in the United States since it emerged onto the world stage.

In order to demonstrate the above statement, one has to look no further than Indian policy. Yes, within this complex system of rules, regulations, and doctrines, the establishment of what has become cemented in law is obscured, but evident. To make sense of this system, we need to begin with our understanding of how Indians and Indian tribes were seen by the framers of the United States Constitution – the so-called Founding Fathers.

Two major articles in the history of the United States begin to formulate the basis that would lead to later legislation, federal court cases, and executive action that build upon these articles. Here, we will consider the impact of these two articles.

The Northwest Ordinance of 1787

Under the Articles of Confederation, the Congress of the Confederation began the task of organizing their new country, the United States of America. This included establishing a form of government that would work efficiently. This was of great concern to those who would later conceptualize the Constitution, an article that would replace the Articles of Confederation. ^[1]

Part of this organization and great concern of the governing was the land that lay just north and west of the Ohio River. Several states had long-standing claims to this area and the argument arose as to how these lands could be incorporated into the new nation while maintaining the proper course that the leaders wanted to follow. These arguments are demonstrated in the published essays known as The Federalist Papers. The idea of how the United States should operate as a republic and if a national government should be formed by the new constitution was the primary concern for debate in these essays.

In 1787, parts of these worries were addressed. The concern was not that the United States would not eventually expand. This was already the idea. Leaders were concerned over how extensive the states would become in terms of the nation due to their understanding of the collapse of states because of size when it came to the republic form of government. Therefore, the Northwest Ordinance of 1787 helped to rectify some issues. It made provisions under a new procedure for accepting new territories as states. First, it would be governed by federal officials as a “territory” (read: colony). Second, once the population reached a sufficient size, a state legislature could be organized and take over portions of governance from the federal body. Finally, once the population had increased again to a certain level, the territory could apply for statehood and admission into the union. ^[1]

What this ordinance neglected, like many other pieces of legislation, was the question of the Indians who resided in their territory. While it touched on the subject in a couple of sections, it was largely created with the idea that the Indians would no longer be present at a future time. The Founding Fathers made this evident on numerous occasions, with George Washington believing settlers did not have to fight the Indian, but rather wait them out. As expansion occurred, they would be slowly pushed out like the wild animals. ^[2]

This ordinance assumed that land would be purchased from the Indian tribes, but no consideration was given as to where they were to go if said lands were purchased. In one of the two places Indians are mentioned, Article 3 of the ordinance does say this:

“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.” ^[3]

The implication is that the land the Indians retained was to be their land and it was not to be taken. Rather, the Indians would be treated with the “utmost good faith” and that decisions regarding the land had to be dealt with via Congress. This “good faith” was only applied to those who remained, not ones who were seen as having to be moved. It is important to note, however, that this matter fell to the federal government. ^[1] In the above quoted section, this ordinance describes what has become known as the preferred relationship that the federal government has with the Indians.

While Indians were allowed to retain land, this ordinance did not stop the inclusion of Indian land into state boundaries or the theft of Indian lands. Section 8 of the ordinance acknowledges that the Indian title to certain lands have been extinguished, a concept propelled by the Doctrine of Discovery. It was believed that if these lands were fully excluded from the founding of new states, a lawless area would be created and prove difficult for the state to handle. ^[1]

The United States Constitution of 1789

In 1789, Congress adopted a new constitution that replaced the Articles of Confederation. In this same year, the concept of the Northwest Ordinance of 1787 was carried over and replaced with the Northwest Ordinance of 1789, with only some slight modifications. The new constitution, however, built upon the understanding already established from both the previous ordinance and the tradition of dealing with Indian tribes since the coming of the first colonists of European rule.

Indians are mentioned in two sections of this new constitution. While Native Americans played a big role in the early history of the United States, when it came to the formal construction of the country, they had little place in these writings. This has led us to where we are today, without a clear distinction in the legal realm and with a convoluted idea of what this policy truly is.

The Constitution “provides” for Indians in two main categories: explicit clauses and implicit clauses. Regarding explicit powers, we have the following.

Section 2, paragraph 3 states regarding taxes (bold mine):

“Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.” ^[4]

This phrase makes specific the distinction between Indians having no relationship to states and individual Indians were considered regular citizens over whom the states might extend tax liabilities. If this sounds confusing, that’s because it is. The phrase makes a distinction, but not a clear one. [1]

The next section in which Indians are mentioned is probably the most pertinent to most Indian affairs. That is the Indian Commerce Clause. Article I, section 8, clause 3 states:

“The Congress shall have Power … to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” ^[4]

It is from the interpretation of this clause that most litigation dealing with Indians revolves around. This statement establishes tribes as sovereigns in the same line as states and the federal government. What it does not establish, though, is how the Constitution was to be applied to Indians. Really, what this does is indicate is that the relationship between tribes and the states and feds is an external matter for all involved. [1] Furthermore, it placed the responsibility of dealing with the tribes on the federal government and that dealing was in the context of trade and “commerce,” something that the states could not handle as an internal affair.

Regarding implicit powers, the issue becomes even more confusing. In order to execute these explicit powers, Congress needed a way to work around issues that were not specifically addressed by the written clauses. This gave rise to what are called implicit powers. These powers are based on former acts and the history of former dealings. In the case of Indians, it was past interactions with tribes that were considered. The federal government therefore assumes that a certain implicit power can apply because it was used before. If confronted with a new situation, federal agencies can imply that an existing power can be used to justify and authorize actions that are contemplated. ^[1]

The biggest issue with this procedure is that the control or limitation of such powers is now vested in one of the three branches of the government, not the Constitution. If one of the branches does not have a particular interest to uphold regarding Indians, implied powers can go unchallenged when one branch feels that it needs to violate tribal sovereignty. A prime example of this goes back to the situation created by the Northwest Ordinance of 1787 (1789).

From the beginning, it was assumed that the power to make treaties was applicable to Indian tribes since they were considered nations in legal tradition, regardless if they retained their legal title to the land they lived on. The biggest difference between foreign nations and the tribes was that no diplomatic mission had to be sent to establish relations with the tribes – the tribes lived on the same land. When Indian lands were not excluded from state boundaries in the Northwest Ordinances, they started to be seen as a matter of domestic concern. They were seen as geographically domestic and their legal and political lifestyles were discredited, even though they were foreign to the United States.

Consequently, under this understanding, Congress used their implied powers of dealing with the tribes to prohibit the recognition and treaty making process with Indian tribes in 1871 for all further treaties. This action was not challenged by either the judiciary or executive branches and became law. The other branches figured it was up to Congress to deal with the Indians. ^[1]

Authority, Responsibility, and Treaties

Ultimately, these two documents make it clear that it is the responsibility of the federal government to deal with Indian tribes, not the states. In the Supreme Court case of Lone Wolf v. Hitchcock, ^[1] the Supreme Court ruled that the federal government has “plenary powers” over Indian lands, property, and Indian affairs and has always had these powers. Despite the historical record of dealings with the tribes, this case was upheld.

Therefore, it is further documented that while it is disputable, it is the federal government who is to deal with tribes and supposedly have authority over them. The states are not to have authority over the tribes or reservations. Unfortunately, this has not and is not always the case. Certain laws and rulings have affected the way the tribes are to be interacted with and the states have been allowed to infringe upon tribal sovereignty from time to time.

Fortunately, what the tribes can use to retain and advance their sovereignty are the previous treaties. Article 6, clause 2 of the United States Constitution declares that “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme law of the land.” Even though the treaties the tribes made gave up land, they secured rights that are vital to our existence in the United States. Because treaties are the supreme law of the land, it stands to say that this includes the treaties made with Indian tribes. It is through these treaties that we can argue our rightful place in this country. These treaties form the main legal basis we have of retaining, and hopefully furthering, our sovereignty as the original inhabitants of these lands. ^[1]

Assumptions of Control

The effects of the implied powers of Congress are far-reaching. Ultimately, they produce certain attitudes and assumptions that work their way into the interactions between the federal government and the tribes. Briefly, I will discuss three examples.

The first assumption relates back to the preferred treatment of Indians as put forth in the Northwest Ordinance of 1787. Within that ordinance, it is presumed that Congress is to act in “good faith” toward Indians and that the acts are to serve the interests of the Indians. This assumption is exemplified in the same ordinance. While it was proclaimed that Indian lands were to be protected, natives were later declared “incompetent” in many instances and their lands were expropriated because it was assumed that they could not manage their lands properly. ^[1][5][6]

A second assumption results from the paternalistic role and powers of Congress. It is assumed that Indian problems can be fixed by a simple adjustment of an already existing program or system. These programs are assumed to work and just need correction for when they fail. Things such as their origins are never considered. A prime example is the General Allotment Act of 1887. While initial goals of this act were accomplish, one of the unforeseen consequences was that it resulted in fractionation, the splitting and dividing of parcels of land into extremely unorganized sectors and causing difficulties in the administration of lands held in trust. ^[5]

A third assumption of Congress’ control over Indian tribes is that because tribes are lost in some kind of legal limbo, reservations and communities are seen as laboratories which can be used to test various theories of social engineering. Specific tribes who experienced termination provide examples of this. The Menominee tribe of Wisconsin suffered greatly at the hands of termination and was used as a chance to experiment with “Economic Darwinism.” This resulted in many detrimental effects, even the deaths of tribal members. ^[6]

Conclusion

After all this, what have we learned? While the federal government is trusted with our care, they have muddied the situation so bad since the beginning that it is no wonder the federal Indian Policy is hard to understand. Between who controls what, who can do something, and where we are supposed to live, the federal government has most certainly neglected their trust responsibility.

REFERENCE NOTES

1. Deloria, Vine Jr. Wilkins, David E. Tribes Treaties, & Constitutional Tribulations. Pages 21-31. USA: University of Texas Press, 1999.
2. George Washington. Letter to James Duane, 7 September 1783.
3. Northwest Ordinance of 1787.
4. Constitution of the United States. 1789.
5. Deloria, Vine Jr. A Better Day for Indians. Pages 5-11. New York: Field Foundation, 1977.
6. Deloria, Vine Jr. Custer Died For Your Sins. Pages 31-35; 65-72. New York: Macmillan, 1969.