The General Allotment Act of 1887

“The real aim this bill is to get at the Indian lands and open them up to settlement. The provisions for the apparent benefit of the Indians are but the pretext to get at his lands and occupy them. … If this were done in the name of greed, it would be bad enough; but to do it in the name of humanity, and under the cloak of an ardent desire to promote the Indian’s welfare by making him lie ourselves, whether he will or not, is infinitely worse.” – Senator Henry M. Teller ^[1]

The above quote by Senator Teller is regarding the General Allotment Act of 1887, also known as the Dawes Act. While many would have you believe that the purpose of this act was to “help” Indians, it was an effective way to work toward their detriment.

Many purposes were intended with the passing of this act. Because Indian communities held their designated lands in common, something seen as the complete opposite of what is proper, part of the aim of this bill was to eliminate this holding and divide the Indian lands into individual plots of 160 acres, known as “allotments,” as a way to “civilize” the Indians. This imposed the concept of private ownership of property on the tribes. Private ownership was seen as an essential part of civilization because it encouraged the development of those lands by their occupants in order to sustain themselves and remain in one place rather than living a nomadic lifestyle. It worked to incorporate Indians into the capitalistic system of the United States. ^[2][3][4]

Another goal of the GAA was to break up Indian lands that were seen as being neglected. In other words, after the allotment process took place, the remaining lands, declared “surplus lands,” were bought by the federal government and sold to non-Indians and opened to homesteading – effectively extinguishing the Indian title to the land. This dramatically reduced the size of Indian reservations and lands because the total amount of their lands typically exceeded the total population of tribal members. The allotted lands would then be used for all generations after the original allottees obtained their parcel of land. The result of this act was the assimilation of the Indian people and the destruction of the tribes as polities. ^[5]

Effects on Reservations and Treaties

Several issues arose almost immediately after allotting began to take place. Natives who were encouraged to accept their allotment often had a choice of land for their personal allotment. This meant that individual Indians could spread out over a reservation and take lands that were separate from established communities. When several amendments were later made to the GAA, some Indians lost their allotments by leasing from the secretary of the interior due to reasons such as age, infirmity, and declared incompetency. And because the surplus lands only satisfied settlers for a short period of time, indiscriminate selling of remaining reservation lands took place, causing “fractionation” among these lands. This created a “checkerboard” pattern within Indian lands.

To add to the stresses stated above, fractionation was made worse after 25 years. Once an allotment was given out, the individual Indian was not allowed to sell the parcel of land because it retained its “trust” status for 25 years, which allowed the owner of the land to have continued access to federal programs and services provided as part of the federal trust responsibility. After this time was up, however, the land lost this status and became a “free simple” tract of land, meaning the owner have full title to the land. This further increased the checkerboard pattern on maps and created areas of mixed former allotments and trust lands, thus creating difficulty for what lands were considered “Indian Country,” reservations, and trust lands in terms of civil and criminal jurisdiction, tax exemptions, federal recognition, and treaty rights. ^[3]

For example, regarding judicial jurisdiction over civil and criminal matters, states began to impose their authority on reservations within their boundaries after allotment on fee simple lands – lands that were no longer considered “Indian Country” or reservation lands after the 25-year period of trust. However, they would call upon the federal authorities to resolve matters that happened on allotments still declared as trust lands. Due to fractionation, this made for an administrative and organizational nightmare. Because of these issues, some states relinquished their claims of jurisdiction to the federal government, even over fee simple lands. ^[3]

This issue sparks another controversy regarding earlier treaties that established that tribes would have the right to administer judgment against those who entered their lands, lands that would be defined as “Indian Country” and that the aboriginal title had not been extinguished. One treaty that brings this out is the 1785 Treaty of Hopewell, signed with the Cherokees. Yet, as time went on, the definition of “Indian Country” changed more and more, resulting in the redefining of jurisdictional boundaries and who is to administer punishment. ^[3]

Indian Country and Allotment

As noted by now, one of the core elements of Indian Affairs is Indian Country. What is Indian Country? How is it defined? How is it interpreted?

Today, Indian Country is defined by federal statue 18 U.S.C. 1151, which makes the provision that Indian Country includes all land, regardless of ownership, within the exterior boundaries of federally recognized Indian reservations. It is applied to judicial jurisdiction as well for both civil and criminal cases. Pueblo lands, which are not held in trust, are also counted as Indian Country. ^[6]

In the past, however, this was not always the case. Indian Country shifted throughout times as being defined by cultural and racial boundaries, but later by geographical boundaries. At times, by legal standings. ^[3]

When it comes to allotment, the process becomes even more complicated. Initially when allotment was proposed, Indian lands that constituted Indian Country were defined by a Trade and Intercourse Act amendment in 1834. Prior to this, Congress had adjusted the boundary of Indian Country whenever a change in the tribal-U.S. boundary was made by a treaty. The new definition, however, replaced this and defined Indian Country as “the part of the United States east of the Mississippi and not within the states … or territory … and, also that part of the united States east of the Mississippi river, and not within any state to which the Indian title has not been extinguished.” ^[3]

This meant that the lands that were not included within a state’s boundaries and that retained federal trust status (thus Indian title) as established by treaty or executive order would count as “Indian Country” and could fall under tribal jurisdiction, pending circumstances such as allotment or reservation status.

When allotment took place on Indian lands, this meant that allotments within trust were declared Indian Country, but would later lose this classification when the 25-year period of trust ended. This also meant that all surplus lands that were sold by Indians to the federal government for public and/or private use would lose their status as Indian Country as well.

Land Buyback

In order to fix problems on reservations caused by the General Allotment Act of 1887, the federal government has established a federal program to help tribes reclaim lands from individuals willing to sell their lands back to the government to be placed in trust for tribal use. Personally, I believe these methods are good measures to help fix fractionation and give tribes back lands that they more than likely did not intentionally sell. It should be encouraged and hopefully, can lead to an increase of tribal sovereignty.

REFERENCE NOTES

1. Pommersheim, Frank. Broken Landscape: Indians, Indian Tribes, and the Constitution. Page 128. Oxford University Press. 2012.

2. Deloria, Vine Jr. The Indian Affair. Pages 16-19. New York: Friendship Press, 1974.

3. Deloria, Vine Jr. American Indians, American Justice. Pages 59-79. 1st ed. University of Texas Press. 1983

4. Indian Land Tenure Foundation. History of Allotment. https://www.iltf.org/resources/land-tenure-history/allotment

5. Oklahoma Historical Society. Allotment. http://www.okhistory.org/publications/enc/entry.php?entryname=ALLOTMENT

6. Wilkinson, Charles. Indian Tribes as Sovereign Governments. 2nd ed. Pages 30-31. California: American Indian Lawyer Training Program, 2004.