4 YEARS OF ATTRITION
The century following the Marshall opinions were years of
diminution for the Indian people in the United States. The land
base dissolved, the population declined, and in some areas, as in
the buffalo plains, the very means of livelihood disappeared and
the people were threatened with final extinction.
The "liberal system of justice" advocated by Henry Knox
had been formalized by law and judicial opinion, but it remained
to be proven in practice. The fate of the Indian people,
as they tried to carry on life in their camps and villages, would
be determined by how well the system withstood the pressures
of agrowing nation.
The first major assault was directed at the tribes still living
east of the Mississippi River. The growing national population
needed room for expansion. In the southeast especially, agriculture
was beginning a spectacular growth, the impetus for
which was not limited to subsistence needs of the nation. Improved
mechanical devices for handling and processing raw
cotton resulted in the production of mounting surpluses. In the
69
70 NATIVE AMERICAN TRIBALISM
twelve-year period 1791-1803, cotton exports from the United
States jumped from 200,000 to 40 million pounds annually, and
that was only the start.
Georgia, at the heart of the cotton-growing country, supplied
the drive to bring about the removal of the Indians from
the eastern area.1
The lands first settled by Georgia colonists
were, for the most part, the poorer lands of the coastal plains
which, before the application of commercial fertilizer, were
regarded as of limited value for agriculture. The Creek and
Cherokee settlements were farther inland, where the soils were
deeper and richer. These Indian lands were coveted, not only
because of their great potential value, but because they figured
in a sttlement with the national government. Georgia's colonial
charter, like the charters issued to other colonies, made vague
references to a western boundary. During or immediately following
the Revolutionary War all the coastal states, with the
exception of Georgia, ceded to the national government their
ill-defined claims to western lands, and in return were forgiven
their share of national defense costs. Only Georgia held back,
demanding reimbursement for certain sums of money she
claimed it had cost her to acquire title or to defend herself
against Indian attacks. The condition was eventually accepted
in 1802 by the national government, but in the resulting agreement
Georgia further insisted that the government extinguish
"at their own expense, for the use of Georgia, as soon as the
same can be peaceably done on reasonable terms, the Indian
title" to any lands still in Indian possession.
Jefferson, who was President when the agreement was concluded,
viewed the Indian-white relationship in very much the
same light as had Knox and Washington. He expressed this
view in a letter to the agent to the Creek nation in 1803: "I
1. For events in Georgia, see U. B. Phillips, "Georgia and State Rights,"
Annual Report of the American Historical Association, Washington,
D.C., 1901,vol. 2.
YEARS OF ATTRITION 71
consider the business of hunting has already become insufficient
to furnish clothing and subsistence to the Indians. The promotion
of agriculture, therefore, and household manufacture,
are essential in their preservation, and I am disposed to aid and
encourage it. This will enable them to live on much smaller
portions of land. . . . While they are learning to do better on
less land, our increasing numbers will be calling for more land,
and thus a coincidence of interests" will occur.2
Looking to the future, he concluded, "Surely it will be better
for them to be identified with us, and preserve the occupation
of their lands, than to be exposed to the many casualties that
may endanger them while a separate people."
This was an argument for accommodation and gradual
change and eventual assimilation of the Indian people. It was
the very course which the Cherokee tribesmen had set for
themselves at about that time.
Georgia's representatives in Congress and her officials at
home were not satisfied with a policy of gradualism. A memorial
to Congress declared, "The State of Georgia claims a right
to the jurisdiction and soil of the territory within her limits."
It complained that the national government was not performing
on its promise to extinguish Indian title "as soon as the
same can be peaceably obtained."
By 1822, after twenty years, the Georgians thought it was
time to drop the idea of peaceable means and resort to force,
if necessary. The Cherokees, as it happened, had decided not to
relinquish any more land. They had ceded land on a number
of occasions, beginning in 1737, and had come to the conclusion
that they needed what was left for themselves and their
children.
Neither Monroe nor John Quincy Adams was willing to
force the issue, but this hesitancy vanished when Andrew Jack-
2. P. L. Ford, ed., The Writings of Thomas Jefferson, New York, 1892-
99, vol. 3, p. 214.
72 NATIVE AMERICAN TRIBALISM
son assumed the office of President in 1829. A few years earlier
he had written to the Secretary of War, "It appears to me that
it is high time to do away with the farce of treating with Indian
tribes."3
When Mississippi followed Georgia's lead in 1829 and enacted
legislation subjecting the Choctaw Indians to the laws of
the state, Jackson, in his first annual message to Congress, took
the position that he was powerless to act against the states, and
recommended to the Congress "the propriety of setting apart
an ample district west of the Mississippi River . . . to be guaranteed
to the Indian tribes as long as they shall occupy it," and
where they would be "secured in the enjoyment of government
of their own choice."
He sent agents to the Choctaws, Creeks, Chickasaws, and
Cherokees--all eastern tribes--instructing them, "Say to them
as friends and brothers to listen to their father, and their friend.
Where they now are, they and my white children are too near
to each other to live in harmony and peace. . . . Beyond the
great River Mississippi . . . their father has provided a country
large enough for them all, and he advises them to move to
it. There their white brothers will not trouble them, and they
will have no claim to the land, and they can live upon it, they
and all their children, as long as grass grows and waters run."
The Choctaw leaders, when they received the message, sent
back word that "We have no expectation that, if we should
remove to the west of the Mississippi, any treaties would be
made with us, that would secure greater benefits to us and our
children than those which are already made. The red people
are of the opinion that, in a few years the Americans will also
wish to possess the land west of the Mississippi."
In confidential instructions to his agents, Jackson advised
3. The details here are from Annie H. Abel, "The History of Events Resulting
in Indian Consolidation West of the Mississippi," Annual Report
of the American Historical Association, Washington, D.C., 1906.
YEARS OF ATTRITION 73
them not to hold general councils with the Indians and assured
them that the Indians had "demonstrated their utter aversion
to this mode" of negotiation; rather, the agents should use the
secret public funds he had provided to purchase gifts for the
"chiefs and influential men" and not to neglect "the children
of the chiefs."
Following up his recommendation to Congress, Jackson
caused to be introduced in both houses of Congress bills providing
for the removal of the eastern tribes. While the language
of the bills gave only discretionary power to the President
and did not authorize forceful removal, it was understood
that force would be used if necessary. The Indians had been
told, in fact, that the United States would not protect them if
they stayed in their present homes.
Strong protests were heard, in and out of Congress. Senator
Frelinghuysen of New Jersey ended a two-day speech with
the challenging question, "Is it one of the prerogatives of the
white man, that he may disregard the dictates of moral principles,
where an Indian shall be concerned?"
Congressman Storrs of New York spoke of the fallacy of pretending
to remove the Indians for their own good from a community
where they had pleasant homes, churches, and schools
to a wilderness where hostile tribes would be their only
neighbors.
The answer to both men, and to others who argued for the
Indians on grounds of morality and reason, was given by President
Jackson a year later, following the court ruling that
Georgia could not impose its laws on the Cherokees. By refusing
to honor the ruling, the President indicated that he
would use his high authority only to compel Indian submission.
Opposition failed and the Indian Removal Act was adopted
by the Congress and approved by the President on May 30,
1830.
In the succeeding ten years the Atlantic and Gulf states were
74 NATIVE AMERICAN TRIBALISM
cleared of the Cherokees, Choctaws, Chickasaws, Creeks, and
Seminoles. Some went resignedly, others at bayonet point.
Only the Seminoles resisted as a group, and in their Florida
swamps fought a war that lasted from 1835 to 1842 and cost
the United States some 1500 soldiers and an estimated $20
million.
The Ohio River and Great Lakes tribes were also rounded
up and removed, with the Sauk and Fox Indians making a last
desperate stand in Illinois against overwhelming numbers. All
were moved--Ottawas, Pottawatomies, Wyandots, Shawnees,
Kickapoos, Winnebagos, Delawares, Peorias, Miamis, and finally
the Sauk and Fox--all were sent out of their homes to
strange lands beyond the Mississippi. Only the Iroquois tribes,
except for fragments of the Oneidas and Senecas, remained behind.
Years later Cherokee stragglers returned to North Carolina.
Seminole survivors were found still living in their swampland
hideouts. And Choctaws returned to Mississippi. Today
these are vigorous groups again, living now in cramped quarters
in a land occupied by strangers.
Count de Tocqueville, as mentioned earlier, happened to be
on the bank of the Mississippi River at Memphis when a party
of Choctaw Indians was crossing over in mid-winter of 1831.
He spoke of the solemn silence that hung upon the freezing air
as the Indians moved into the waiting boats. "No cry, no sob,
was heard amongst the assembled crowd; all were silent."
"They were isolated in their own country," he commented,
"and their race only constituted a little colony of troublesome
strangers in the midst of a numerous and dominant people."4
The Choctaw spokesman was correct in his prediction that
the Indians would not find security in the lands west of the
Mississippi. Hardly had some of the tribes settled down in
Kansas, Iowa, and Nebraska when they were told they could
4. Alexis de Tocqueville, Democracy in America, Henry Reeves trans.,
New York, 1898, vol. 1, p. 448.
YEARS OF ATTRITION 75
not stay. The discovery of gold, first in California, then in
Colorado and the northwest, meant the opening of transcontinental
wagon roads and later railways. To secure the safety of
travelers the Indians were thrust north and south of the lines
of travel. New treaties were negotiated, new guarantees of
"perpetual" title and assurances of protection given.
The tribes from the southeast--designated as the Five Civilized
Tribes because of the progress they had made in adopting
the white man's culture, establishing schools, courts, tax systems,
and formal governments--they too found that perpetuity
had a short life. Several of the tribes, or factions within the
tribes, formed alliances with the South during the Civil War,
and at the war's end, in retaliation, the victorious North compelled
them to surrender the western half of the territory
which President Jackson had guaranteed would be theirs "as
long as grass grows." The surrendered lands were parceled out
to tribes brought in from the north, and the remainder was
opened for homesteading by white men.
Not surprisingly, a tone of cynicism entered the discussions
of Indian affairs in this period. When a general appropriation
bill containing funds to fulfill treaty provisions with several
tribes in the Great Plains was before the House of Representatives
during President Granťs first term, one member of the
House expressed doubt that such tribes existed, except "in the
minds of some Indian traders and speculators."
A quarrel had been in the making between the two houses of
Congress, brought on by the challenge of the lower house,
which insisted that its members be consulted prior to the confirmation
of Indian treaties. The federal Constitution empowered
the President to make treaties, "by and with the advice
and consent of the Senate." Members of the lower house argued
that the Senate had grown careless in the use of its discretion.
At the moment (1869), eleven separate treaties, requiring
an appropriation of $4.5 million, were under discussion.
76 NATIVE AMERICAN TRIBALISM
The treaties had been ratified by the Senate and approved by
the President, and the House, which must originate appropriation
measures, was considering the funding bill. The members
balked.5
One member condemned the reasoning that recognized Indians
as owners of the soil. "They never owned a foot of land.
They were roving savages. They never owned and could not
own land. They could not understand the title to land."
Another thought that Indian treaties were a sham and wanted
to insert the expression "so-called" before every reference to
treaty in the appropriation bill. He declared, "Every dollar appropriated
for Indians, tends to prevent the Indians from becoming
civilized, teaches them to live in idleness."
Still the Indians were not without defenders. One senator remarked,
"When we were weak and the Indians were strong,
we were glad to make treaties with them and live up to those
treaties. Now we have grown powerful and they have grown
weak, and it does not become this nation to turn around and
trample the rights of the weak."
Still another senator rebuked those who had attacked the absent
Indians: "I know what the misfortune of the Indians is.
Their misfortune is not that they are a dwindling race, not that
they are a weak race. Their misfortune is that they hold great
bodies of rich lands, which have aroused the cupidity of powerful
corporations and powerful individuals."
The House members had their way. They wanted to put
an end to the practice of negotiating formal treaties with the
Indian tribes. The Senate, after two years of debate, in which
no representatives for the Indians and no Indian spokesmen defended
the historic practice, yielded, with this rationalization
offered by the chairman of the Senate Committee on Indian
Affairs: "I have been of the impression for years that there
5. The debates are reported in Congressional Globe, 41st Congress, 1st
session, 1869, and 3rd session, 1871.
YEARS OF ATTRITION 77
was no necessity for negotiating and ratifying treaties with Indians;
that all our intercourse with them could be regulated by
law, by statutory provisions, just as well as by treaty; that on
the whole it was much safer to submit all these propositions to
both branches of Congress than to submit them only to the
Senate."
Ordinarily, substantive law is not incorporated into an appropriation
measure, but the Appropriation Act for 1871 contained
a rider, declaring, "Hereafter, no Indian nation or tribe
within the territory of the United States shall be acknowledged
or recognized as an independent tribe or power with whom the
United States may contract by treaty."
The action was not a denial of the Marshall thesis that Indian
tribes are "domestic dependent nations" with self-governing
powers. The United States continued to respect treaties previously
incorporated into the law of the land, and it entered
into formal "agreements" with respect to land and other
matters. In later years, indeed, the courts would award monetary
judgments to Indian tribes for actions taken in violation
of treaty stipulations.
Nevertheless, since 1871 it has been United States policy to
legislate in Indian matters, not to negotiate, often not even to
consult, no matter what effect the legislation might have on the
civil and property rights of the Indians. The policy enactment
was the recognition of a reality--that Indian friendship and support
were no longer needed by the nation come to power.
With this breach in the historic relationship accomplished,
the next point at which pressure was applied was the system
under which Indians held their lands. The treaties had set up a
barrier protecting the Indians in their traditional notions about
land and frustrating the normal acquisitive activities of white
men. The courts, in repeated cases, had held firm to aboriginal
possessory rights and to the terms of treaties recognizing those
rights. Thus one opinion reads, "So long as a tribe exists and
78 NATIVE AMERICAN TRIBALISM
YEARS OF ATTRITION 79
remains in possession of its lands, its title and possession are sovereign
and exclusive . . . Although the Indian tide continues
only during their possession, yet that possession has been always
held sacred, and can never be disturbed but by their consent.
They do not hold under the States, nor under the United
States; their title is original, sovereign, and exclusive."6
Land was not merchantable, in the European sense, among
any of the North American tribes. Individual right of occupancy
and use was recognized and protected, and under given
conditions trespass might be punished. Boundary lines were
respected, as between tribes, and between clans or other groupings
within the tribe.
That Indians recognized their non-merchantable possessory
rights as against outsiders was recorded as early as 1686 by an
Iroquois leader, who declared, "It is only by forbearance that
I have permitted the English the lands which were part of my
domain and for which they have paid me a price and for which
they will pay again each time they approach me."7
Such concepts were the cultural results of experiences which
differed from the experiences of Europeans, concepts that were
designed to serve a different kind of social purpose. They explain
why it was that, in effort after effort, the early Indians
tried to drive the settlers off land which previously they had
"sold"; why tribes sometimes turned upon certain of their own
headmen and destroyed them for giving away what belonged
to the group and could not be individualized. Tribal leaders
were also aware of the strategy often used against them by
government officials of negotiating with each tribe separately
and neutralizing their efforts to combine their forces. This explains
what lay behind the appeal of the Indian confederation
6. The subject is treated exhaustively in Felix S. Cohen, "Original Indian
Tide," Minnesota Law Review, vol. 32, no. 1, Dec. 1947, pp. 28-59.
7. Quoted in Native Rights in Canada, Indian-Eskimo Association of
Canada, Toronto, 1970,p. 54.
meeting at the mouth of the Detroit River in December 1786,
an appeal addressed to commissioners representing the United
States:
Brothers: we are still anxious of putting our plan of accommodation
[for reconciliation and friendship] into execution.
. . . The first steps towards which should be, in our
opinion, that all treaties carried on with the United States, on
our parts, should be with the general voice of the whole.
confederacy, and carried on in the most open manner, without
any restraint on either side; and especially as land matters
are often the subject of our counsel with you, a matter
of great importance and of great concern to us, in this case
we hold it indispensably necessary that any cession of our
lands should be made in the most public manner, and by the
united voice of the confederacy; holding all partial treaties
as void and of no effect.8
The Indian system of common ownership had never
understood or accepted by the white men who settled in the
New World. Europe and the white man's civilization had 1
grown to greatness on a system of private property in land, and
it must therefore be a proper system for any people.
So long as the Indian tribes could hold the policy-makers at
arm's length, as they managed to do through the treaty process,
they could determine for themselves what internat controls
they chose to exercise over land or other community interests.
With that barrier breached in 1871, only the judicial process
remained as a defense against encroachment. A countervailing
legislative process was needed and would soon be proposed.
The idea of individualizing Indian land holdings was suggested
at various times from the earliest days of settlement and
was even tried experimentally. The Massachusetts General
Court in 1633 authorized the settling of Indians on plots, "according
to the custom of the English." John Winthrop spoke
in support of the policy. Thomas McKenny, the first Comrnis-
8. American State Papers, ClassH,"IndianAffairs," vol. 1,pp.8-9.
80 NATIVE AMERICAN TRIBALISM
sioner of Indian Affairs (1824), in asking Congress for funds
in support of Indian schools, proposed that as Indian youths
"are qualified to enter upon a course of civilized life, sections
of land be given them."
Westward settlement gathered enormous momentum after
the Civil War, encouraged by the Homestead Act of 1862,
which permitted the individual settler to obtain title to a quarter
section of public land upon payment of a nominal fee after
five years of residence. Discharged soldiers and families from
older settled areas swarmed into the western prairies to claim
their share of the free land. Close behind them pressed a tide of
recent immigrants, anxious to put down roots. Out of a total
national population of 31444,000 in 1860, foreign-born residents
numbered more than four million, and a large part of
these had arrived during the 1840s and 1850s.
The discovery of gold, first on the Pacific Coast, then in the
Rocky Mountains, had an explosive effect in a population already
on the move. In this same epoch, plans for the construction
of transcontinental railroads were pushed both inside and
outside of Congress. The promoters sought, and obtained,
grants of public land along their projected rights-of-way as a
means of financing road construction.
All of these pressures, in their separate and combined effect,
resulted in demands to reduce Indian land holdings, to move
Indian populations out of the path of westward migration. The
device by which this would be accomplished was an act of
Congress adopted in 1887, called the General Allotment Act,
or the Dawes Act.
Not that the legislation was proposed and justified as a legal
means of driving Indians from their homes. It was not the gold
miners or the railway promoters who appeared in the halls of
Congress or wrote articles for the press in support of the measure.
The advocacy, often emotionally charged, came from responsible
public officials, from civic and religious bodies, and
YEARS OF ATTRITION 81
from organizations chartered to promote and protect Indian
interests.
Carl Schurz, the intellectual political refugee of the collapsed
German revolution of 1848 who had become Secretary of the
Interior in President Granťs cabinet, set the moral tone of the
campaign with his statement in 1877 that "the enjoyment and
pride of the individual ownership of property is one of the
most civilizing agencies."9
The Commissioner of Indian Affairs
in 1878 reported that the principle of allotment was "endorsed
by all true friends of the Indians, as is evidenced by the numerous
petitions to this effect presented to Congress from citizens
of the various states."
An agent to one of the Sioux tribes expressed the opinion
that "as long as Indians live in villages they will retain many
of their old and injurious habits. Frequent feasts, heathen ceremonies
and dances, constant visiting--these will continue as
long as people live together in close neighborhoods and villages.
I trust that before another year is ended they will generally
be located upon individual land or farms. From that date
will begin their real and permanent progress."
The idea had its strong opponents as well. Senator Teller of
Colorado characterized the bill when first introduced in the
Senate in 1880 as "a bill to despoil the Indians of their lands and
to make them vagabonds on the face of the earth."
Later he admonished his colleagues, "If I stand alone in the
Senate, I want to put upon the record my prophecy in this
matter, that when thirty or forty years will have passed and
these Indians shall have parted with their title, they will curse
the hand that was raised professedly in their defense to secure
this kind of legislation, and if the people who are clamoring for
it understood Indian character, and Indian laws, and Indian
9. D. S. Otis, "History of the Allotment Policy,"in Hearings Before the
Committee on Indian Affairs, House of Representatives, 73rd Congress,
2nd session, 1934.
82 NATIVE AMERICAN TRIBALISM
morals, and Indian religion, they would not be here clamoring
for this at all."
On the House side, when a similar bill was under consideration,
a minority report of the Committee on Indian Affairs protested,
"However much we may differ with the humanitarians
who are riding this hobby, we are certain that they will agree
with us in the proposition that it does not make a farmer out of
an Indian to give him a quarter section of land. . . . The real
aim of this bill is to get at the Indian lands and open them up
to settlement. . . . 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 like ourselves, whether he will or not,
is infinitely worse."
Adoption of the measure was delayed by its critics, but after
eight years of intermittent debate it passed into law on February
8, 1887.
Its promises were great, as it seemed to offer what many
friends of the Indian people had long been seeking-a formula
which would induce Indians to turn away from their own past
and accept a place in the white man's society. To make such a
transition, it was reasoned, Indians needed to become competitive,
they needed to acquire a passion for self-improvement.
Senator Dawes, the principal proponent of the measure, was
blunt about it. Indians, he said need tobecorne selfish.
The essential features of the legislation were (1) the President
was authorized to divide tribal lands and assign or allot
160 acres to each family head, 80 acres to single persons over
eighteen and orphans under eighteen, and 40 acres to each
other single person under eighteen. (2) Each Indian would
make his own selection, but if he failed or refused, a government
agent would make the selection. (3) Title to the land was
placed in trust for twenty-five years, or longer, at the Presidenťs
discretion. (4) Citizenship was conferred upon all alYEARS
OF ATTRITION 83
lotees and upon other Indians who abandoned their tribes and
adopted "the habits of civilized life." (5) Surplus tribal lands
remaining after allotment might be sold to the United States.
The effect of the law in operation was almost exactly what
its opponents anticipated--it became an efficient mechanism for
separating the Indians from their lands and pauperizing them.
In 1887, approximately 140 million acres were owned in joint
tenure by the Indians of the United States. The Allotment Act,
as amended in succeeding years, set up procedures which resulted
in the transfer of some 90 million acres from Indian to
white owners in the next forty-five years.
Most efficient in reducing Indian land holdings was the provision
permitting the government to purchase so-called surplus
tribal lands. Sales could also be made by individual Indians after
the initial trust period expired, or as later provided, the Secretary
of the Interior could issue a "certificate of competency"
indicating that the individual was qualified to manage his own
affairs. The Indians' creditors or anxious land buyers could be
counted on to assist an Indian in submitting an application and
supporting the request with proper affidavits testifying to the
applicanťs competency.
The lands that went first were the most valuable: agricultural
lands, rich grasslands on the high plains, virgin forests in the
Great Lakes region. What remained was desert or semi-desert.
The Sisseton Indians of South Dakota, a branch of the Sioux
nation, learned first hand how effective the law could be in reducing
Indian acreage. The tribe had been moved several times,
but finally it came to rest on a modest empire of 918,000 acres.
The land was a deep black loam, scattered through with lakes
and pleasant groves.
The tribe was among the first to have its lands allotted, and
as it worked out, the 2000 members of the tribe were able to
retain 300,000 acres, which left approximately 600,000 acres in
the surplus category. This was promptly made available for
84 NATIVE AMERICAN TRIBALISM
homesteading by white men. The agent stationed among the
Sissetons in 1892 composed a pleasant report on the situation:
"The Sissetons and Wahpetons no longer hold their land in
common. . . . This reservation was thrown open to settlement
under the Homestead Law, and today the houses of white
settlers dot the prairie in every direction, while a number of
towns have sprung into existence, and the red and the white
men will hereafter harvest their crops and herd their stock
side by side, and when, as the wheels of progress roll on and
churches and school houses take the place of the old time
dance houses--which last are already unpopular among these
honest people--it will be forgotten they were ever classed as
savages."
By 1909 two-thirds of the land retained in separate allotments
had passed out of Indian ownership. The trust had been
removed and the land was sold. Only 35,000 acres remained to
the original allotment holders and 80,000 acres had been distributed
to heirs, in diminishing parcels.
The Sisseton Indians did not disappear as the land was sold.
They used up the proceeds, then were homeless. Moreover,
they increased in numbers. The 2000 tribal members who received
allotments in the 1890's had increased to 3000 by 1944.
Of this larger population, only 500 had moved away, and now
2500 were trying to subsist on a vanishing land base. No part
of the surplus lands had been held in reserve for the descendants
of the original allotment holders.
A congressional committee investigating Indian conditions
stopped at Sisseton in 1944 and reported, "One of the most disgraceful
situations in America. . . . People living under impossible
conditions, worse than the places in which we keep
livestock."10
1o.ĎArcy McNickle, "Rescuing Sisseton," in The American Indian,
Journal of the Association on American Indian Affairs, vol. 3, no. 1,
1946.
YEARS OF ATTRITION 85
If the Allotment Act had been proposed as a device for separating
the Indians from their land, its successful operation
should have satisfied the most hopeful expectations, but the
emphasis had been on the educational value of individualized
ownership and the corollary value that would accrue from the
dissolving of tribal bonds.
The Indians did not become farmers, not of the kind envisioned
by the lawmakers. Many Indians had been farmers from"]
a time that antedated the countries of modern Europe. But they
farmed to eat, not to exploit a market. In this, they remained
unchanged.
Tribal existence became more difficult, as at Sisseton, but it
persisted. The reason for this was perhaps best expressed at a
gathering of Indians held in Indian Territory (now Oklahoma)
in the very year that the Allotment Act was adopted. Fiftyseven
representatives from nineteen different tribes discussed
the new law, which they opposed by unanimous voice. They
explained their opposition: "Like other people the Indian needs
at least a germ of political identity, some governmental organization
of his own, however crude, to which his pride in man- /
hood may cling and claim allegiance. . . . This peculiarity in
the Indian character is elsewhere called 'patriotism,' the wise
and patient fashioning of which will successfully solve the
question of civilization. Exclude him from this, and he has little /
elseto live for."11
What is remarkable about this statement, apart from the anguish
of which it speaks, is its clear recognition of the function
of "ethnic boundaries" long before the concept entered the
literature of social science. It is a plea to the lawmakers of the
day to accept cultural diversity as an element of democratic society.
The plea, of course, came prematurely, in an era when
public policy was generated by a belief in the infallibility of
power.
11. Quoted in Report of the Commissioner of Indian Affairs, 1887, p. 117.
86 NATIVE AMERICAN TRIBALISM
In Canada, it could be said that there was less official hypocrisy.
The Indians, once placed on their reserves, were not subjected
to schemes for a further reduction of their holdings. But
in fact the original reductions brought about by the treaties
were so severe that any subsequent reduction could only have
left the Indians homeless. In either case, the native peoples of
the United States and Canada were impoverished by their trustees
in these years of attrition.
5 A TIME OF REASSESSMENT
The Indian condition deteriorated greatly as the nation prospered.
The United States Court of Claims, in reviewing an Indian
case at the end of the last century, indicated frank puzzlement.
The court found the legal situation anomalous, a situation
"unknown to the common law or the civil law or to any
system of municipal law. [The Indians] were neither citizens
nor aliens; they were neither persons nor slaves; they were
wards of the nation, and yet, . . . were little else than prisoners
of war while war did not exist."
An investigation of Indian administration conducted by an
independent private organization in 1915 reported that "the Indian
Superintendent is a tzar within the territorial jurisdiction
prescribed for him. He is ex officio both guardian and trustee.
In both of these capacities he acts while deciding what is
needed for the Indians and while dispensing funds."1
Over the years Congress had enacted a great body of law,
much of it sterile, but some enactments aimed at correcting
1. Bureau of Municipal Research.
87
88 NATIVE AMERICAN TRIBALISM
specific abuses at the time of their passage became devices for
restricting the Indian's freedom of decision and action. The
1790 law which prohibited the purchase of Indian land except
through a duly executed public treaty derived basically from
the British Proclamation of 1763; in later years it developed
into an instrument giving government officials exclusive control
over the management, use, and disposition of Indian property
of whatever nature.
The restriction of Indian freedom was strikingly demonstrated
in 1934, when twelve statutes, dating from the very beginnings
of national government, were repealed. These included
prohibitions against sending seditious mesages to Indians
or inciting Indians to revolt, later used to suppress opposition
to government policies. Government officials might remove
from an Indian community persons deemed "detrimental to the
peace and welfare of the Indians." The President might employ
the military to enforce the decisions of an official hostile to Indian
interests. Religious freedom had been denied; dances and
ceremonies banned as pagan and immoral. School children were
punished for speaking a native language.
Until the third decade of the present century Indian policy
was rooted in the assumption that the Indians would disappear.
Authorities responsible for policy continued to refer to a diminishing
population long after the growth had turned upward.
Given this premise, it seemed not to be a serious consequence
that Indian land was shrinking or that the revenues
credited to the tribes from land sales and treaty payments were
dissipated in administrative costs and small doles, while nothing
was invested in the development of tribal and individual
resources.
Then, in 1933, at the outset of the Roosevelt Administration,
Congress undertook a radical revision of Indian policy. The reversal
did not occur spontaneously. Evidence that Indian affairs
had been badly managed became notorious in the 1920s as a reA
TIME OF REASSESSMENT 89
sult of information made public by official inquiries and private
action.
One of the turning points was an incident that might have
gone unnoticed, had it not been for the efforts of concerned
individuals. The incident involved an attempt to divest the
Pueblo Indians of New Mexico of lands which they held under
grants originating with the Spanish crown. The situation had
been a long time in the making. It began inconspicuously in a
Supreme Court decision in 1877, which held that Pueblo Indians
were citizens, not wards of the national government like
other tribes, because they had been made citizens of Mexico by
a ruling of that government when it assumed sovereignty of
New Spain. The Treaty of Guadalupe Hidalgo at the close of
the war between Mexico and the United States provided that
Mexican nationals would become citizens of the United States
unless they exercised their option to remove themselves from
territory ceded to the United States. The effect of the Courťs
ruling was to remove trust protection from Pueblo Indian
lands, rendering them taxable and alienable. The law prohibiting
unlawful entry on Indian lands did not apply. Some 3000
families, representing an estimated 12,000 individuals, moved
onto Pueblo land. In some instances a buyer in good faith purchased
a presumed title from a Pueblo official or individual,
while others filed for homestead entry, in the belief they had
settled on the public domain.
In 1913 the Court reversed itself and held that the Pueblo
lands were properly defined as Indian country; the Pueblos
were domestic, dependent nations under the protection of the
United States, and they could not dispose of their assets without
the approval of the government. All transfers or entries involving
Pueblo lands were outlawed.2
2. William A. Brophy, "Spanish and Mexican Influences . . . ," paper prepared
for 1st Inter-American Conference on Indian Life, Patzcuaro, Mexico,
1940.
90 NATIVE AMERICAN TRIBALISM
The non-Indian claimants applied to Congress for relief, and
in 1922 legislation was introduced which would throw upon
the Indians the burden of proving ownership. Failure to establish
proof would vest title in the claimant. It was a difficult and
costly burden for the Indians to assume.
The iniquitous legislative proposal drew the fire of private
citizens and citizen groups, who entered the controversy to
help the Indians organize a common defense. Most active in
the group was John Collier, who within a few years would
become Commissioner of Indian Affairs and a leader in a national
movement to reform the governmenťs policy.
In November 1922, encouraged by the citizens groups, all the
pueblos sent delegates to Santo Domingo, one of the larger of
the nineteen New Mexico pueblos. It was the first time they
had acted together since 1680, when they drove the Spanish
out of their country. In the name of the newly formed All
Pueblo Indian Council, an appeal was issued to the American
people and a delegation visited a number of American cities to
explain the issue and appeal for financial support. The tactic
not only brought about the defeat of the Bursum bill, as the
legislation was called, but led to the creation by Congress of
the Pueblo Lands Board and an equitable procedure for determining
ownership of the disputed lands.
The action served an even wider purpose by bringing the
plight of the Indians to the attention of the public. The citizen
group, once engaged, found abundant opportunity to use
the skills of its members in investigating and publicizing the obscurities
of the Indian situation. Such had been the pernicious
effects of the policies in force in the previous fifty years that
Indians were living in the direst poverty; the death rate was
about twice that of the general population; they were heavily
afflicted with tuberculosis and trachoma; such schooling as
was provided was sub-standard; and few Indians remained in
school long enough to profit. In the words of the Court quoted
A TIME OF REASSESSMENT 91
above, their status was neither that of a citizen nor that of an
alien. They were prisoners of war when no state of war existed.
Indians were actually citizens by that time. Congress in 1924
had conferred citizenship on all Indians born within the territorial
limits of the United States as an acknowledgment of the
country's gratitude for Indian participation in World War I.
They had not been subject to military draft, yet thousands had
enlisted voluntarily. Citizenship was not sought by the Indians
as a group; indeed, many leaders objected to the measure when
they learned about it, fearing that it might somehow impair
their tribal relationship. Their experiences in dealing with the
government had been such that citizenship was not a possession
of great promise. Relatively few individuals made use of the
franchise in the first years after the passage of the citizenship
act.
Meantime, the efforts of private groups continued until, in
1926, the government authorized an economic and social study
of Indian conditions. The Secretary of the Interior, Hubert
Work, requested the Institute for Government Research, a privately
endowed foundation, to conduct the investigation. Lewis
Meriam and a group of associates were appointed.
The result was a report of findings which, for the first time,
provided a detailed and objective analysis of what had happened
to the Indian people under the governmenťs trusteeship.
A program of remedial action was proposed, which required
the repudiation of the attitudes as well as the practices then
prevailing. The allotment policy, in particular, was cited to
exemplify how the government had failed the Indians in its
role astrustee and mentor.
"Not accompanied by adequate instructions in the use of
property," the report found, with respect to the allotment policy,
"it has largely failed in the accomplishment of what was
expected of it. It has resulted in much loss of land and an enormous
increase in the details of administration without a com-
92 NATIVE AMERICAN TRIBALISM
pensating advance in the economic ability of the Indian. . . .
It almost seemed as if the government assumed that some magic
in individual ownership would in itself prove an educational
civilizing factor, but unfortunately this policy has for the most
part operated in the opposite direction."3
Perhaps the most valuable contribution of the Meriam investigation
was the formulation of a basic concept of the task of
administration which would advance the economic position of
the Indians and foster social adjustment. The problems of poverty,
disease, inadequate shelter, low educational achievement,
and general discouragement all derived from the failure to provide
assistance in these related areas. Solutions could not be
pursued separately, but must all be part of a concerted effort.
Hence the report recommended that "The fundamental requirement
is that the task of the Indian Service be recognized
as primarily educational in the broadest sense of the word, and
that it be made an efficient educational agency, devoting its
main energies to the social and economic advancement of the
Indians, so that they may be absorbed into the prevailing civilization
or be fitted to live in the presence of that civilization at
least in accordance with a minimum standard of health and
decency" (italicssupplied).
Until then, it had not been recognized that there could be an
alternative to assimilation. Even the tolerant Henry Knox, in
urging "a liberal system of justice," assumed that the Indians
would be quietly transformed as their hunting grounds disappeared,
and he was not dismayed by the prospect; it seemed to
be an appropriate solution. The idea that the Indian people
might "be fitted to live" within the dominant society without
being obliterated by it was, indeed, unprecedented as a statement
of possible national policy. At the time, and indeed for a
number of years afterwards, the idea was not pursued. It re-
3. Lewis Meriam, et al., The Problem of Indian Administration, Wash-,
ington, D.C.: Brookings Institution, 1928.
A TIME OF REASSESSMENT 93
mained for the Indian people themselves, a full generation later,
to plead the case for self-determination.
The Meriam formula was also notable as a repudiation of
the philosophy of administration which had prevailed since
1871, when the government adopted the thesis that it could
legislate Indians into white Americans. It was a recognition that
freedom of choice is an essential ingredient of a democratic society,
a freedom that cannot be exercised unless true alternatives
are available.
The Roosevelt administration, coming into office in 1933,
accepted the radical concept that the Indian race was not
headed for early extinction. The population trend had already
begun its upswing, and a growing body of ethnological studies
offered evidence that cultural survival was indeed extensive.
The reforms adopted by the administration were designed to
repair some of the damage which had been done, to add to the
resource base, and to involve and utilize surviving native institutions
and leadership. The new purpose was many times stated
--a 1938 summary will suffice here:
Our task is to help Indians meet the myriads of complex,
interrelated, mutually dependent situations which develop
among them, according to the very best light we can get on
those happenings.
We, therefore, define our Indian policy somewhat as follows:
so productively to use the monies appropriated by the
Congress for Indians as to enable them, on good, adequate
lands of their own, to earn decent livelihoods and lead selfrespecting,
organized lives in harmony with their own aims
and ideals, as an integral part of American life. Under such a
policy, the ideal end result will be the ultimate disappearance
of any need for government aid or supervision. This will not
happen tomorrow; perhaps not in our lifetime; but with the
revitalization of Indian life due to the action and attitudes
of this government during the last few years, that aim is a
probability.4
4. Report of the Commissioner of Indian Affairs, 1938,p. 210.
94 NATIVE AMERICAN TRIBALISM
The program, which Commissioner John Collier directed,
issued as a conscious purpose from the idea of the educational
process. It was given statutory support by the enactment of the
Indian Reorganization Act of June 1934. The Act was permissive,
and tribes had the option of accepting or rejecting it by
majority vote. Such a choice had never before been offered,
and some tribes evidently cast an adverse vote in the belief that
acceptance of the law would entail further submission to the
government.
As to those tribes which adopted the Act, it prohibited any
further division of tribal lands into individual allotments and
the Secretary of the Interior might return to tribal ownership
lands which had been withdrawn for homestead entry but had
not been taken up. It authorized an annual appropriation for
land purchase and a revolving credit fund for economic
development.
At the heart of the Act were the sections authorizing tribes
to operate under governments of their own choice, either formalized
by written documents or following customary usage,
and to establish business corporations for the management of
their resources. This made explicit in statutory law for the first
time the principle, which the courts had followed since Justice
Marshalľs rulings in the 1830s, recognizing the residual right
of Indian tribes to govern themselves.
In this respect the 1934 act was an integral segment of the
humanistic tradition started by Spain, advanced by England,
and incorporated into the early laws and court decisions of the
American republic.
The upward swing which retrieved the Indian population
from peril in the first decade of the century was followed in
the 1930s by a saving augmentation of physical resources and
human spirit. The opportunities offered in the Indian Reorganization
Act brought into use the capacity for social action
which had never died in the Indian people, though it had been
A TIME OF REASSESSMENT 95
obscured. The start was slow in many instances, since the
written constitutions introduced ideas and procedures which
had not been part of customary practice. The idea of majority
rule, taken for granted in Anglo-Saxon governing bodies, was
at first a divisive rather than a unifying principle in Indian
groups, where action is customarily delayed until all the people
are in agreement, or at least until the dissidents agree to
stand aside. Also, in the beginning, so accustomed were the
tribes to wait on the decision of a federal official, they were reluctant
to act on their own in exercising the powers contained
in their portfolios
The tribes that made the most effective use of their political
powers became, in effect, operating municipalities--managing
property, raising revenue for public purposes, administering
law and order, contracting for the services of attorneys and
other professional advisers, and promoting the general welfare
of the people.
Other gains were made. The record of tribal operations in
borrowing from the revolving credit fund was particularly
gratifying. The lack of investment capital, and more seriously
the lack of experience in handling money, had been one of the
great deterrents to Indian advancement. Credit money made it
possible for the tribes to increase significantly the acreage they
farmed and grazed--lands which, for lack of capital, they had
formerly leased to white operators.5
These were all positive gains. Their tribal governments were
training schools, and after a few years local leaders began to
travel beyond the borders of their own tribes to join others in
forming inter-tribal organizations on a state-wide or regional
basis. In native America, the tribes had kept to themselves
within their recognized territories. Sometimes alliances were
made for a specific, temporary purpose and then dissolved.
More rarely, two or more tribes might remain in close associ-
5. Report of the Commissioner of Indian Affairs, 1948, pp. 371-72.
96 NATIVE AMERICAN TRIBALISM
ation for a period of years. These were the exceptions. When
in 1944 representatives of forty-odd tribes came together to
form an all-Indian body, the National Congress of American
Indians, nothing in their traditions supported such action. The
fact that the organization continued in existence and grew in
acceptance among Indians, as well as in effectiveness in representing
Indians before the public, was a real measure of Indian
adaptation when opportunity opened to them.
6 RETURN TO NEGATION
A basic debate over Indian policy developed in the years immediately
after World War II. The debate was at first a minor
play within a general dialogue concerned with government
spending and the growth of "big government." It began as a
demand that trusteeship over Indian property be curtailed and
that some functions of the Bureau of Indian Affairs be transferred
to other agencies, but it soon broadened into a full attack
on the Indian reform program. In and out of Congress
there was an increasing tendency to view trusteeship as a failure.
It had not provided a method by which the United States
might bring its responsibilities to an end. It had not even earned
the United States a good name for its efforts.
A leader in this counter-movement was Senator Arthur V.
Watkins of Utah, who as chairman of the
Affairs in the Senate exerted a powerful influence on congressional
policy during the administration of President Eisenhower.
It was his view that Indians could not hope to have an
identity separate from the mainstream of American life, and
103
104 NATIVE AMERICAN TRIBALISM
that those who encouraged such hopes by helping Indians to
develop their communities were doing a mischief. He regarded
the Indian programs of the Roosevelt administration as misdirected
social experiments that perpetuated the illusion of a future
for Indians as Indians. He looked to Congress as the
agency to deliver the Indians out of bondage and free their
property from government surveillance. As he summarized the
situation, "Unfortunately, the major and continuing congressional
movement toward full freedom was delayed for a time
by the Indian Reorganization Act of 1934, the WheelerHoward
Act. Amid the deep social concern of the depression
years, Congress deviated from its accustomed policy under the
concept of promoting the general Indian welfare. In the postdepression
years Congress--realizing this change of policysought
to return to the historic principles of much earlier
decades."1
While this statement leaves unidentified the "historic principles"
to which he alluded, the course pursued by Senator
Watkins made explicit his determination to restore the process
of attrition set in motion during the closing years of the last
century. Indian property was again to be made accessible for
appropriation; tribal autonomy even in the limited areas remaining
was to be further reduced and ultimately extinguished.
The concern for Indian freedom which the Senator frequently
expressed was in effect a concern to have the United States
freed of any legal or moral responsibility for what might
happen to Indian people as a consequence of congressional
action.
Out of such attitudes held by the Senator from Utah and
others in and out of Congress during President Eisenhower's
administration was fashioned the policy of "termination," as it
1. Arthur V. Watkins, "Termination of Federal Supervision: The Removal
of Restrictions over Indian Property and Persons," in The Annals,
vol. 311, May 1957,pp. 47-55.
RETURN TO NEGATION 105
came to be called. Two measures adopted by Congress in the
summer of 1953 prepared the way for almost a decade of turmoil
that paralyzed community action, destroyed two major
tribes, and both frightened and angered Indians throughout the
nation.
The first was an act (Public Law 280) transferring jurisdiction
over criminal and civil law to certain specified states and
authorizing all other states in which Indian reservations were
located to assume similar jurisdiction, without reference to the
views of the Indians.
Prior to that enactment, state law did not apply within an
Indian reservation, and except for certain major crimes, Indian
tribes exercised police powers within reservation boundaries.
State jurisdiction had been requested in good faith by tribes
lacking the resources to maintain law-enforcement agencies
among their own people, but the Congress, without seeking the
views of tribes not parties to the request, replied with legislation
of general application. The Indians protested, since they
saw the action as a threat to one of the remaining areas in
which they exercised local autonomy; and beyond that lay the
possibility that the states would want to tax Indian lands, a
power the states had sought for some time. The protest brought
no relief.
The second measure produced even greater alarm. This was
a policy statement (Concurrent Resolution 108 of the Eightythird
Congress) declaring it to be "the sense of Congress that,
at the earliest possible time," Indians should be freed from federal
supervison and control. Going still further, the Resolution
directed the Secretary of the Interior to review existing laws
and treaties and recommend what amendments or nullifications
were needed to release the United States.
A suggestion that their treaties might be denounced brought
consternation to the Indians, for the treaties, like the land base
itself, had acquired a symbolic value with which the tribes
106 NATIVE AMERICAN TRIBALISM
could associate their continuing existence. The treaties made
them a distinctive people, the abrogation of which would cut
them off from their own past. Even the threat of such action was
enough to create anxiety throughout the Indian population.
In 1954 Congress moved to implement its policy declaration
by authorizing the United States to terminate its responsibility
for two major tribes--the Menominee of Wisconsin and the
Klamath of Oregon--and several smaller groups. The Menominees
and Klamaths possessed extremely valuable timber resources,
the orderly exploitation of which provided a sound
economic base for the tribal members.
The scale of the decision thrust upon the Klamath Indians is
indicated by the statistics of the situation. Of a tribal membership
numbering slightly more than 2000 persons, few had progressed
in school beyond the eighth grade; a few had received
some college training, but none could be classified as professionally
trained; even skilled workmen were uncommon. The
reservation contained just under one million acres of land,
mostly forested. The value of the merchantable timber was appraised
at $120 million. A per capita division of this property,
if liquidated, would yield an estimated $50,000 share for each
man, woman, and child.
By the terms of the congressional mandate, the tribal members,
poorly educated and with little experience in money
matters, were given three years in which to settle their affairs.
Within that brief span they were required either to create a
corporate entity to which their property would be transferred
for management, or failing that, agree to liquidate and distribute
the assets. Refusal on their part only meant that the Secretary
of the Interior would make the decision for them. In either
event, regardless of who made the decision, at the end of three
years the trusteeship exercised by the United States would
terminate. The Indians protested at every stage as the legislation
progressed through Congress, without affecting the outRETURN
TO NEGATION 107
come. The three-year period was extended when it became
apparent that the required procedures would not be consummated
in the allotted time, but the postponement did not diminish
the consequences of terminating the trust responsibility.
The question of choice was finally submitted to a tribal
plebiscite. Enticed by the prospect of quick wealth, and seeing
no alternative, 77 per cent of the adult tribal members voted
for liquidation. When it was realized that payment of their pro
rata shares to some 1600 members would entail the immediate
marketing of 3.5 billion board feet of timber, the Pacific northwest
lumber industry protested anxiously. Among the protesters
were business and civic leaders who previously had
urged the government to release the Indians from trust protection
and allow them to control their own affairs. But when
these leaders realized that their own economic welfare might
be jeopardized by the policy they had advocated, they urged
the Congress to practice moderation. Congress then further
amended its course by providing that the federal government
might purchase the bulk of the tribal estate and, by converting
it into a national forest, control the timber harvest. The Congress,
understandably, since the Klamath tribe presented no political
threat, was responsive to business interests, while insisting
that the Indians accept its mandate.
It will be a matter of years, perhaps a generation, before an
accurate assessment can be made of the impact upon the Klamath
community of the "solution" imposed by law. The immediate
result was described in stark terms by a committee of
the United States Senate after visiting what remained of the
reservation in 1969. The committee reported, "The termination
of the Klamath reservation in Oregon has led to extreme social
disorganization of that tribal group. Many of them can be
found in state mental and penal institutions."2
2. Committee on Labor and Public Welfare, U.S. Senate, Report No.
91-501, 91st Congress, 1st session, 1969, p. 17.
108 NATIVE AMERICAN TRIBALISM
At the national level, the Senate committee found that "the
fear of termination has poisoned every aspect of Indian affairs,
has undermined every meaningful attempt at organizational reform,
and has been a major psychological barrier to Indian
socio-economic development."
The experience of the Menominee tribe of Wisconsin, the
second major tribe to be subjected to the congressional dismantling
process, added to the uncertainty and fear encountered
by the same Senate committee. The Menominee was one
of three tribes at the beginning of the Eisenhower administration
that was able to pay its own cost of administration. The
tribally owned sawmill not only manufactured lumber but provided
employment for tribal members in the woods and in the
milling operation. The tribe contracted for its own health services
at a local private hospital. It paid the cost of most of its own
welfare needs which, because of the job opportunities at its
lumber mill, were less than those of neighboring communities.
It had maintained through a relatively long history of contact
with traders, missionaries, and government functionaries a
strong tradition of independence.
In 1951 the tribe won from the government a judgment of
some $8 million as compensation for mismanagement of the
tribal forest. The money award was paid into the United States
Treasury--a circumstance that was to have disastrous consequences
for the Menominees. They could obtain their money
only by a congressional appropriation, and when tribal officials
appeared in Washington to present their request, they found
Senator Watkins of Utah standing in the way.
The money would be paid to them, they were told, only if
the tribe agreed to legislation which would terminate the trust
relationship and free the United States of future responsibility.
The question was eventually submitted to a vote of the membership,
in circumstances which almost predetermined the decision.
Individual Menominees, in need of ready money, were
RETURN TO NEGATION 109
anxious to obtain their per capita share of the award. The tribe
also had planned to make improvements in the sawmill, to expand
community services and employment opportunities, and
to modernize the local hospital facility. All of these reasons
served to persuade the tribal members that unless they complied
with Senator Watkins's ultimatum, their court-awarded funds
would be denied them indefinitely. They voted for termination.
The resulting legislation, adopted in 1954, set impossible
deadlines, as did the legislation for the Klamath tribe, and this
resulted in hasty decisions, premature agreements, and mounting
tensions.
One of the terms required the Menominees to decide whether
the reservation area should be divided into several parts and annexed
to adjoining counties or whether it should remain an
integrated territory with status as a county in the state of Wisconsin.
The latter choice, which the tribal members preferred,
required authorizing legislation by the state. This was granted
in 1961,but neither the tribe nor the state was able, within the
time allowed, to study in depth the consequences of such a
move.
It soon became evident that the new county lacked an adequate
revenue base to meet the cost of public services. To keep
solvent, the tribe, now operating as Menominee Enterprises,
Inc., sold cottage sites to summering visitors who found the
Menominee woods and lakes a refreshing change from sweltering
in their city homes. In this fashion, land once held in common
by the tribe passed out of Indian ownership and the
Menominees found themselves providing menial labor for the
"cottagers" who displaced them.
The tribal sawmill, now operated as a revenue-producing
enterprise, installed automatic machinery that eliminated jobs
and reduced the payroll. This in turn increased the number of
unemployed and the welfare load, at a time when the new
county was already in financial difficulty.
110 NATIVE AMERICAN TRIBALISM
What was probably the severest shock to the Menominee
people was the loss of control in the management of their community.
Their government had consisted of a general council,
what in another society would be termed a village or town
council, composed of all adult citizens, with officers elected in
open meeting. It was a public forum, in which the problems and
concerns of the people were openly discussed.
This traditional institution was replaced by Menominee Enterprises,
Inc., as noted above, control of which was placed in a
nine-man board of directors, five of whom were to be outsiders.
Membership on the board was determined by an intermediary
seven-man "voting trust," not directly by tribal members, and
the voting trust in fact managed the property and was the primary
decision-maker. Control was further removed from the
Menominee people by transferring to a private trust company
the control and management of the shares owned by minors and
incompetents. Since this group constituted approximately 20 per
cent of the tribal population, the private bank by voting its entrusted
shares as a block effectively controlled Menominee Enterprises.
The adult members, having scattered to surrounding
urban centers in search of employment, left an open field for
outside manipulation.
A student of Menominee affairs, after reviewing these events
in detail and noting how the people were driven into opposing
camps as they faced precipitated issues, observed, "Experienced
leaders, young intellectuals with new ideas, potential leaders
with experiences outside the colonial situation that could be put
to good use, and the Menominee people as a whole are prevented
from getting together. The social damage done the
Menominees by termination is fully as great or greater than the
substantial, quantifiable material damage."3
Such were the consequences for two tribes of the "full free-
3. Nancy Oestreich Lurie, "Applied Anthropology," unpublished paper,
June 1971.
RETURN TO NEGATION 111
dom" policy imposed upon them by the Senator from Utah.
The ultimate destruction of Indian property holdings and social
cohesion must certainly have resulted if the policy had been
extended to all tribes, as was contemplated by the authors of the
Concurrent Resolution.
The Secretary of the Interior during that period, in full accord
with the congressional mandate, moved purposefully to
abandon trusteeship even where Congress had not legislated.
By lifting restrictions on individual Indian allotments--a procedure
that had been severly restricted during the Collier administration--land
was allowed to pass out of Indian ownership at a
rate that threatened disaster.
Senator Murray of Montana became so disturbed by this departure
from previous policy that he called upon the Secretary
in May 1958 to halt the process until its effects upon the Indian
economy could be studied. It was then discovered that land had
been taken out of trust, and invariably sold, at an accelerating
rate. More than 2.5 million acres were disposed of during the
ten-year period 1948-57, but 1.8 million acres of this total had
gone on the market during the years 1953-57. The lands sold
were usually the most desirable tracts, controlling a water
source or other key feature, the loss of which adversely affected
the surrounding Indian community.4
A retired field officer of the Bureau of Indian Affairs, commenting
on this development, observed, "Tribal officials in the
Dakota country are deeply concerned about the loss of Indian
land. They know that when an individual has sold his land and
used up his money, he does not stop being an Indian. He simply
becomes alandless Indian."5
4. Committee on Indian and Insular Affairs, Indian Land Transactions:
An Analysis of the Problem and Effects of Our Vanishing Indian Land
Base,1948-57, 85th Congress, 2nd session, 1958.
5. W. O. Roberts, "The Vanishing Homeland," in Indian Affairs, newsletter
of the Association of American Indian Affairs, New York, Jan.
1957-
112 NATIVE AMERICAN TRIBALISM
Fortunately, legislative detribalization proceeded no further.
After two years of hearings and debates in Congress, the drive
lost momentum. In that interval a considerable section of public
opinion had rallied to the side of the Indians, and the Indians
themselves recovered from their initial shock and spoke out.
These Indian protests added to the growing disillusionment
with the Eisenhower administration, which produced changes
in the political composition of Congress following the elections
of 1956, 1958, and i960. When Senator Watkins lost his Senate
seat in 1958, the Indian people all across the nation shared a
sense of reprieve.
A bureaucracy is rarely responsive to a climate of opinion
and yields to change only under compulsion. In this instance,
the Bureau of Indian Affairs, having embarked upon a program
of divesting itself of the responsibility of stewardship, persisted
in furthering the alienation of Indian land and in denying credit
loans for the development of Indian property. When a new
Secretary of the Interior in 1958 declared, "No Indian tribe or
group should end its relationship with the federal government
unless such tribe or group has clearly demonstrated--first, that
it understands the plan . . . and second, that the tribe or group
affected concurs in and supports the plan proposed"6
--officials
of the Bureau ignored the pronouncement of their senior officer.
For a while longer the rule of negation prevailed.
6. Fred A. Seaton, in a radio broadcast of Sept. 1958.
7 THE TRIBAL WORLD
In their resistance to the policy of withdrawing or terminating
federal responsibility, the Indian tribes were not expressing a
desire to continue indefinitely in a state of dependency, although
an obdurate Senator Watkins might make that charge.
They would not acknowledge themselves to be dependent in
any respect. The protection of their lands and of their right of
community control, which outsiders took as evidence of backwardness,
was seen by Indians as a contractual relationship not
terminable by unilateral decision. And with respect to their
trust-held lands and tribal governments, Indian leaders had for
some years been urging the federal government to relax its restrictive
controls and permit greater participation in planning
and decision-making. This, of course, was the promise of the
Indian Reorganization Act.
Resistance went deeper. It had to do with psychological
readiness and the realities of the inner life which Indians share
among themselves. By mid-century most Indians of the United
States and Canada had had extended contact with the society
113
114 NATIVE AMERICAN TRIBALISM
beyond their traditional boundaries, and this experience had
been varied. Some adjusted to the dominant society in a positive
and useful way. Others, by far the greater number, were satisfied
with a mixed participant-observer relationship and limited
their contacts to the traders, missionaries, teachers, government
people, and casual visitors who came across their horizon. Even
among the few who succeeded in making the transition to urban
life, only rarely was the tie of relatedness completely and
finally severed. They tended to commute between the traditional
world and the impersonal urban world. This was one of
the realities of Indian existence. It had nothing to do with government
subsidies or government control over tribal resources.
The termination of trusteeship would add to the difficulties of
maintaining a community intact, asthe Menominees discovered,
but the reality would continue to influence response.
The lack of readiness in the Indian people is often charged to
the failure of government to provide enough of the right kind
of schooling. The criticism would have greater validity if, by
itself, the "right" education could accomplish what the critics
expected of it. As early as 1609 the Englishman Robert Gray,
writing on the bright prospects of colonizing Virginia and civii
lizing the natives, declared, "It is not the nature of men, but the
education of men, which makes them barbarous and uncivil,
and therefore change the education of men, and you shall see
that their nature will be greatly rectified and corrected."1
For the seventeenth-century European so recently brought
to awareness of non-European societies, Gray's concept of the
process of human development is understandable, perhaps defensible.
But as a basis for policy and action, which it became,
it was a pernicious denial of the moral right of indigenous societies
to perpetuate themselves. To "rectify" and to "correct"
in this formula was to "Europeanize." Members of a native
1. Quoted in Roy Harvey Pearce, The Savages of America, Baltimore:
Johns Hopkins University Press, 1953,p. 10.
THE TRIBAL WORLD 115
community might desire to improve their knowledge and skills,
to extend their control over the environment--as Indians demonstrated
by quickly adopting the horse, steel tools, and the
gun--but the only choice allowed under the formula was to
move out of the community entirely; they could not become
better Indians, they could only become something else. When
Indians resisted and continued to function in a society of their
own kinsmen, they were answered with more coercive and
more encompassing "educational" devices, until they were
wholly encumbered by alien controls.
Governments, of course, agreed with their critics, and in response
to criticism they did more of what they had been doing,
without discovering why they had so little success with their
educational policy. When the nature of the Indian was not rectified,
the administration, the men, and the method came under
attack. No one challenged the philosophy. By keeping intact
the invisible boundary which permitted them to recognize who
they were and how to respond to each other, the Indian people
evaded the ultimate assimilation intended for them.
The failures of the so-called termination policy, as so grossly
experienced by the Klamath and Menominee tribes, produced
counter movements, both in the United States and in Canada,
which revealed how vital and deep-running was the tribal view
of self.
The year 1961was akind of watershed in Indian affairs. First
of all, there was a new national administration, led by the
youthful and spirited President Kennedy. In one of the early
actions of the administration, the new Secretary of the Interior,
Stewart Udall, appointed a task force which toured the Indian
country extensively, listened to old complaints and bright new
proposals, and by mid-summer issued areport which disparaged
without clearly disavowing termination as an objective and
urged a program of "maximum development" of reservation
resources. A private study, sponsored by the Fund for the Re-
116 NATIVE AMERICAN TRIBALISM
public, covered much the same ground and reached similar
equivocal conclusions about the destructive efforts of the Eisenhower
termination legislation. This report did, however, contain
an ominous reminder: "Repeatedly in the past, congressional
action in such matters has cost the United States large
sums in the later settling of claims or in defending law suits.
Error or oversight in a termination today may tomorrow call
for the payment of unanticipated indemnities."2
An event in that same summer had possibly greater significance
for the Indian people than the courses pursued by government.
This was a conference convened by the University of
Chicago and participated in by almost 500 Indians from all parts
of the nation, including Alaska, and observers from Canada and
Mexico. A Declaration of Indian,Purpose was issued at the end
of a week of discussion, and while the document was important
as an expression of Indian thought, it was the process of arriving
at the joint statement which contributed most to a changed
outlook.
To understand better the importance of the Chicago conference,
it must be realized that Indians do not constitute a monolithic
society. The ethnic boundaries which maintain group
identity and functions are essentially tribal in nature. Except for
the short-lived efforts of the Pueblo Indians in 1680 and of Pontiac
and Tecumseh in the eighteenth and early nineteenth century,
inter-tribal alliances have not characterized Indian political
experiences. The autonomous tribe, or band, or village,
which seems best to describe the political constituency, is a projection
of the autonomous individual. No Indian individual,
even within his own family, speaks for another individual. No
tribe presumes to speak for another tribe. To act otherwise is to
act discourteously, if not indecently.
2. The quotation is from the Summary Report of the Commission, Albuquerque,
New Mexico, 1961,p. 7.
THE TRIBAL WORLD 117
The representatives of the seventy tribes at the Chicago conference
had in common a sense of being under attack, and it
was this shared experience which drew them together. Even in
the presence of a common danger, however, collaboration was
not sponetaneously achieved. Indians from traditionalist communities
were fearful of finding themselves associated with
ideas or actions which might betray their interests. Reservation
Indians were especially distrustful of their urbanized kinsmen,
whom they suspected of scheming to liquidate tribal resources
and claim their share. In the absence of traditional channels for
inter-tribal communication, the conferees had as their only
guiding experience their generations of negotiating with the
white man, an experience that had taught extreme wariness and
distrust. At several critical moments the conference stood ready
to dissolve, but on each such occasion an acceptable base for
continuing discussion was found. And so the conference remained
in session until it put together the Declaration of Indian
Purpose, which a special sub-committee of the United States
Senate some years later described as "forecful and eloquent."
The conference was significant not only because the tribal
participants found it possible to work their way through divisive
counter moves, but out of their deliberations emerged issues
and personalities which in the next few years would
greatly affect the forces operating in Indian affairs. A noticeable
element throughout the conference was the young adult
group, mostly college students, who infused a spirit of militancy
into the discussions and before the conference ended had
taken the first steps toward the formation of a National Indian
Youth Council. This group, after some initial awkwardness in
sorting out leadership problems, soon became an effective rallying
force for young dissidents. Members of the group joined
the poverty march on Washington in 1963 and were soon using
the term "Red Power" as an assertion of their commitment to
118 NATIVE AMERICAN TRIBALISM
political action. In this they were voicing their impatience with
their elders, who traditionally withdrew from open conflict and
preferred silent opposition or passive obstructionism.
The Kennedy-Johnson administration engaged in a major effort
to deal with the problems of poverty, marked by decaying
rural areas and exploding urban ghettoes. In creating an organizational
structure to cope with critical economic and social derangements,
Indian reservations were listed among the nation's
most deeply depressed areas, and this in turn led to the establishment
of agencies and programs that were without precedent
in the administration of Indian affairs. Credit for introducing
the fresh ideas and working methods cannot be ascribed to the
Bureau of Indian Affairs, however, since that agency had first
to overcome the ill will it had engendered by sponsoring termination
policies. The impetus for change came rather from other
branches of government, and specifically from administrative
bodies newly created to deal nationally with poverty issues.
A major consequence for Indian communities was the adoption
of the Econornic_Qpportunity Act in 1965, which authorized
funds for programs adapted to Indian needs. Among
these, the Head Start program provided early education experiences
within the home community for Indian children, many
of whom come from non-English speaking homes and homes
having limited contact with the dominant culture. These children
ordinarily spend the first school years in social isolation
and never quite catch up with their English-speaking peers.
The Upward Bound program, designed to encourage students
to complete their secondary schooling and continue into college,
was a major factor in accelerating the recent trend toward
professional training. VISTA, the domestic counterpart of the
Peace Corps, brought youthful volunteers from all parts of the
nation to Indian reservations as community workers. The involvement
of outsiders in work projects largely defined by
THE TRIBAL WORLD 119
tribal leaders helped to reduce the barrier of unfamiliarity
which ordinarily insulates an Indian community from outside
society. Of less importance, perhaps, were the physical accomplishments
of the VISTA workers.
The outstanding innovation of the period was the establishment
of Indian Community-Action Programs, which brought to
reservation communities technical services and financial assistance
for which tribes had always been dependent upon the Bureau
of Indian Affairs. The Office of Economic Opportunity
which administered the new law had no paternalistic tradition
to inhibit its procedures, and it invited tribal officials to prepare
and submit plans for local projects. Once a plan was approved,
OEO contracted with the tribal organization to operate the
project, and it advanced the budgeted funds. This transferal of
authority and responsibility for decision-making to the local
community was an administrative feat which the Bureau of Indian
Affairs, after more than one hundred years of stewardship,
had never managed to carry out.
The contrast in method did not go unnoticed in Indian communities,
where local leaders responded promptly to the opportunity
for improving living conditions. By the end of the
decade the leaders of Indian reservations in seventeen states,
with technical assistance from outside advisers, had created
sixty community action programs, each of which consisted of a
variety of separate but related enterprises. The major universities
of the western states responded to requests for technical
help in training community workers and in designing operating
procedures. The very tasks which over the years the Indian
bureau failed to accomplish, explaining away its failure as a reflection
of the incapacity or inexperience of Indian leadership,
were found not to be insurmountable. Indian communities
quietly took control of their own advancement.
The manner in which the Rough Rock community of the
120 NATIVE AMERICAN TRIBALISM
Navajo reservation in Arizona assumed responsibility for the
education of its children exemplified this development. The
people of Rough Rock, very few of whom had been exposed
to formal schooling and were non-English speaking, were asked
to take over the management of a newly constructed school.
The Bureau of Indian Affairs, which built the school, was at the
point of recruiting teaching staff and administrative personnel
when the Office of Economic Opporunity offered to assist
the Navajo community in assuming the management role. An
agreement was reached by which the two federal agencies
would advance the normal operating funds and provide supplementary
grants for developmental purposes.
The important factor in this agreement was not the transfer
of the school facility but the shift in the educational philosophy
which the transfer made possible. The notion that an educational
system, devised to answer the social needs of a given culture,
could "rectify and correct" the way of life of people of
another culture, which had prevailed since the seventeenth century,
could now be challenged.
The Rough Rock school was founded on these assumptions:
(1) aschool must involve the people of acommunity, not just the
professional and custodial personnel recruited from the outside,
and involvement must mean responsibility for success and failure;
(2) a school must contribute to the development of a community,
which meant that adults as well as children should find
learning opportunities; (3) a school should be part of a process
by which the way of life of a people is transmitted to the
young--the school which is concerned only with importing the
culture of an alien society robs the community of its natural
increase; and 4. a school operating in a non-English speaking
community should treat English as a second language to be mastered
after the child acquires a basic competency in his mother
tongue. These assumptions, as will be recognized, represented a
THE TRIBAL WORLD 121
radical departure from the patterns of schooling provided by
colonial, then national, governments.
It must be added that these conceptual generalizations reflect
the experience and aspirations of this particular community of
traditional, non-urbanized Navajo tribesmen; they are not abstractions
derived from academic literature. A member of the
all-Navajo seven member school board which operates the
Rough Rock school expressed very clearly his understanding
of what was being attempted. Speaking in answer to the criticism
that the school was educating for the past, not the present,
and by such backward-looking methods was doing an injury to
the children, the unlettered board member declared, "We are
not educating for today; we are educating for tomorrow. The
way a person can live successfully in tomorrow's world is to
have confidence in himself and have an inner strength which
comes only from a positive picture of himself. This school is
designed not to teach the children to walk on this road or that
road but rather to give them the tools to make intelligent
choices."3
The transfer of authority at Rough Rock was not an isolated
affair, but must be seen as an event in a growing movement for
self-determination. This movement took various programmatic
forms, and in addition it was verbalized in demands for still
other programs and for policy changes. In the educational
theater, profiting from the Rough Rock example, independent
school districts serving an Indian or a mixed Indian and white
community were established for the Rocky Boy reservation in
Montana, the Blackwater district on the Gila reservation in Arizona,
the Tama Indian community in Iowa, and the Ramah
3. The Rough Rock experiment is discussed in a statement by Dr. Robert
A. Roessel, Jr., in "Indian Education," Hearings Before the Committee
on Labor and Public Welfare, United States Senate, 90th Congress,
1st and 2nd sessions, part I, 1969, pp. 12-25.
122 NATIVE AMERICAN TRIBALISM
Navajo district in New Mexico. These pioneering efforts were
important as demonstrations of Indian community resourcefulness
and equally important in encouraging other communities
to negotiate contractual relationships with agencies of govern-
ment.
The national concern with civil rights in the 1960s expressed
in riots, protest marches, court orders, and political debates
caught up the Indian cause, not always with complete Indian
collaboration. Some of the issues involved in the civil rights
struggle were not Indian issues. Segregation, which the black
man protested so bitterly, was not seen as a denial of social
status by Indians. They had never aspired to a place in the
white man's society, except as individuals might make that
choice for themselves. What Indians as tribal members desired
was the good faith performance by the national government of
the contractual obligations and reciprocities incorporated in
treaties. In addition to which, since their resources were under
trust restrictions and not convertible into risk capital, tribal Indians
demanded development funds to improve their communities
asplaces to live.
These represented civil rights of a different order, and to the
extent that they were understood as such they found support
from citizen groups, from agencies of government other than
the Indian Bureau, from within Congress itself, and finally from
Presidents Johnson and Nixon. Public opinion generally, as
voiced in major news media, repudiated the negativism of the
Eisenhower legislative program and encouraged the Indian
quest for a continuing identity within the major society. For
the first time since the creation of the Bureau of Indian Affairs
in 1824, it seemed possible at the opening of the seventh decade
of the twentieth century that Indian communities would be
permitted to adapt to the necessities of their environment without
submitting to conditions that violated traditional values.
THE TRIBAL WORLD 123
As an instance of the new attitude that came into existence
among the agencies working with the Indian people is a report
published by the Department of Labor in 1969. The report reflected
the experiences of members of that department who had
been engaged in a survey of the employment needs of the Indian
population. With remarkable candor, the reporting team declared,
"We grew to admire the Indians tremendously as a
group, to marvel at their courage and dignity even in the midst
of abject poverty, and to appreciate their lack of aggressive acquisitiveness.
Even their reserve appeared to be the symbol of
an inner strength as well as an insulation against the deteriorating
influence of white society. . . . We realized what a tremendous
loss to mankind would be the obliteration of this culture,
call the obliteration process what one will--assimilation,
acculturation, or termination. We became strong partisans of
the belief that the Indians should be encouraged and helped to
preserve their culture. . . . This position is consistent with a
great body of enlightened opinion in this country, and with
prevailing opinion among the Indians themselves."4
Two presidential messages, addressed to the Congress somewhat
more than two years apart, were without precedent in
United States history. Chief executives had made passing references
to the Indian people in their annual messages, but none
had addressed himself to the subject at such length as did Presidents
Johnson and Nixon. The effect of these official communications
was to bring the condition of the Indian people to national
attention in a manner never before attempted. It moved
the discussion of Indian needs and Indian aspirations out of the
committee rooms of Congress and out of the private offices of
civil servants into the arena of public concern. It had the fur-
4. Toward Economic Development for Native American Communities,
Joint Economic Committee, Congress of the United States, vol. 1, part I,
91st Congress, 1st session, 1969, p. 125.
124 NATIVE AMERICAN TRIBALISM
ther effect of openly repudiating the policy of negativism and
giving support to a policy of democratic pluralism. Thus, President
Johnson in his message of March 6, 1968, declared:
There can be no question that the government and the
people of the United States have a responsibility to the
Indians.
In our efforts to meet that responsibility, we must pledge
to respect fully the dignity and the uniqueness of the Indian
citizen.
That means partnership--not paternalism.
We must affirm the right of the first Americans to remain
Indians while exercising their rights as Americans.
We must affirm their rights to freedom of choice and
self-determination.
We must seek new ways to provide federal assistance to
Indians--with new emphasis on Indian self-help and with
respect for Indian culture.
And we must assure the Indian people that it is our desire
and intention that the special relationship between the Indian
and his government grow and flourish."5
The Nixon message of July 8, 1970, offered a thoughtful and
critical view of government policy--in itself an unusual function
for an executive document to assume. The statement was
explicit in its denunciation of the termination policy of the
Eisenhower administration, in which Richard Nixon served as
Vice President.
In presenting this opposing view, the message recapitulated
the long history of government-Indian relations. It stated,
"Termination implies that the federal government has taken on
a trusteeship responsibility for Indian communities as an act of
generosity toward a disadvantaged people and that it can therefore
discontinue this responsibility on a unilateral basis whenever
it sees fit. But the unique status of Indian tribes does not
5. "Indian Record," newsletter of the Bureau of Indian Affairs, Washington,
D.C., 1968.
THE TRIBAL WORLD 125
rest on any premise such as this. The special relationship between
the Indians and the federal government is the result instead
of solemn obligations which have been entered into by
the United States government. Down through the years,
through written treaties and through formal and informal
agreements, our government has made specific commitments to
the Indian people. For their part, the Indians often surrendered
claims to vast tracts of land and have accepted life on government
reservations. In exchange, the government has agreed to
provide community services such as health, education, and public
safety, services which would presumably allow Indian communities
to enjoy a standard of living comparable to that of
other Americans."6
The message noted further that forced termination, as a practical
policy, had been harmful in its effects; it "produced considerable
disorientation among the affected Indians and has left
them unable to relate to a myriad of federal, state, and local assistance
efforts."
In affirmation of national responsibility in this sector, the
message declared, "This, then, must be the goal of any new national
policy toward the Indian people; to strengthen the Indian's
sense of autonomy without threatening his sense of community.
We must assure the Indian that he can assume control
of his own life without being separated involuntarily from the
tribal group. And we must make it clear that the Indians can
become independent of federal control without being cut off
from federal concern and federal support."
The principal instrument proposed by the President for enabling
Indian tribes to become independent of federal control
was a system of contractual relationships. He remarked, "In the
past, we have often assumed that because the government is
obliged to provide certain services for Indians, it therefore must
6. Message from the President of the United States, House of Representatives
Document No. 91-363,91st Congress, 2nd session, July 8, 1970.
126 NATIVE AMERICAN TRIBALISM
administer those services . . . but there is no necessary reason
for this assumption. Federal support programs for non-Indian
communities--hospitals and schools are two ready examplesare
ordinarily administered by local authorities. There is no
reason why Indian communities should be deprived of the privilege
of self-determination merely because they receive monetary
support from the federal government. Nor should they
lose federal money because they reject federal control."
Such declarations and affirmations, if projected into law and
administrative practices, carry the promise of restoring to the
tribal world the capacity of adapting to change in an orderly
manner. A society left to itself normally responds to a changing
environment. To interfere with the process by imposing the
values of an alien experience is to destroy human capacity--
what we have come to know as genocide. To grow beyond the
seventeenth century in this respect is the great challenge of our
day.