Federal Indian Law and Policy
History of Indian Law and Policy
While this section provides the historical background for Indian law and policy, numerous legal principles and policies, which were established in the 17th, 18th, and 19th centuries, are still in effect today. Treaties, the U.S. Constitution, and Supreme Court decisions form the foundation of federal Indian law and shape the federal-tribal relationship.
From the early 1800s to the present day, there have been several shifts in federal policies which have affected Native Americans, and the federal-tribal relationship. In some cases, these eras overlap.
The Treaty Making Era (1778-1871)
Treaties established the earliest pattern of legal and political interaction between the U.S. government and Indian tribes.
Europeans signed the first treaties with Indian tribes in the early 1600s. In 1778, the U.S. signed its first treaty with an Indian tribe: the Delaware Indians. In 1871, when the treaty making era formally ended, the U.S. had signed more than 350 treaties with Indian tribes. Even after 1871, there were many written agreements between tribes and the United States which functioned like treaties.
The Removal Era (1830-1850)
Indian Removal Act policies during the time period between 1830 and 1850 removed many tribes from their eastern homelands to lands west of the Mississippi River, especially into the area known as Indian Territory, which is now the State of Oklahoma. These mass removals included the "Trail of Tears," a long journey traveled primarily on foot by the Cherokee, Choctaw, Creek, Chickasaw, and Seminole, during which many died.
The Reservation System (1850-1891)
Removal policies later gave way to the reservation system. Between 1850 and 1891, numerous treaties and other written agreements were made that required tribes to relocate to distant territories, or confined them to smaller areas that were "reserved" portions of the tribes' aboriginal territories. These reservations were created by treaties, statutes, and executive orders.
The Allotment and Assimilation Era (1887-1934)
The General Allotment Act, also known as the "Dawes Act," was passed in 1887. It broke up communal reservation lands and assigned individual parcels, called "allotments," to tribal members. These parcels were to be held in trust for 25 years, although this time period was often extended or shortened by the federal government. Because of the parcels' trust status, they could not be sold or otherwise conveyed by their Indian owners without federal approval. After the trust period expired, titles to the parcels were to be converted to fee simple status, giving the owners the ability to sell their parcels without federal approval. The remaining reservation land, which had not been allotted to tribal members, was declared "surplus," and was opened to non-Indian settlement. The Indian Reorganization Act (see below), enacted in 1934, ended the creation of allotments, eliminated time limitations on trust status, and allowed existing allotments to remain in trust status indefinitely. Allotments which remained in trust in 1934 are still Indian country.
In 1924, U.S. citizenship was granted to all Native Americans.
The Reorganization Policy (1934-1953)
The next phase of the federal government's policy supported the reorganization of Indian tribes. The Indian Reorganization Act of 1934 ended the allotment of reservations, ensured that any allotted parcels still held in trust for individual Indians would not convert to fee simple status, and reaffirmed that tribal governments had inherent powers. The Act also provided a mechanism for the formalization of tribal government through written constitutions and charters for tribes that would agree to federal oversight.
The Termination Era (1953-1968)
During this period, many of the reorganization era reforms were reversed, primarily by the U.S. government's decision to terminate the federal recognition of many Indian tribes. The Termination Policy was intended to further promote the assimilation of Native Americans into mainstream American society. In some cases, termination led to a loss of federal services and resources for those tribes. Some tribes terminated during this period have successfully petitioned to have their federal recognition restored. In 1953, a statute known as Public Law 280 transferred federal criminal jurisdiction, and some civil jurisdiction, to certain states over tribal lands that lay within their boundaries.
The Self-Determination Era (1968 to the present)
In the late 1960s and early 1970s, federal Indian policy began to support the concept of Indian self-determination. Various laws and presidential policies strengthened support for tribal governments and reaffirmed federal acknowledgment of tribal sovereignty.