Part I - From Sovereigns to Wards

1 The Original American Governments

Babylon, Egypt, and Greece are among the first images conjured by “ancient civilizations.” North America is seldom considered; indeed, North America’s Indigenous inhabitants were widely considered “uncivilized” until the early twentieth century. However, North America had numerous civilizations prior to European arrival. These Indigenous North American civilizations developed complex governance systems, engaged in extensive social planning, and created long-range commercial networks. This chapter explores early American societies.

1.1 The First Americans

For hundreds of years, Europeans have wondered how Indians arrived in the Americas. In 1590, Fray José de Acosta hypothesized that early humans followed wild game from Asia into the Americas.¹ David Hopkins transformed the idea. Hopkins’ 1967 book, The Bering Land Bridge, helped validate the existence of a land bridge linking Asia to North America.² Ever since then, the Bering Strait Theory (BST) has been widely accepted. According to the theory, people crossed the land bridge connecting Russia to Alaska approximately 13,000 years ago.³ More recent evidence casts serious doubts on the BST.⁴

Settlements in the Americas predate the BST. For example, the Cooper’s Ferry site in Idaho is 16,000 years old. The archaeological finds at the site include stone tools and butchered animals. People likely reached Cooper’s Ferry by migrating from Asia along the coast then traveling down the Columbia River.⁵ Other sites in the present-day United States predate the BST.⁶ But the strongest archaeological blow to the BST is Monte Verde. This Chilean site was inhabited by humans between 14,500 and 18,500 years ago.⁷ These pre-Clovis sites indicate early humans entered the Americas by tracing the Pacific coast, known as the Kelp Highway Hypothesis.⁸ Following the coast is a logical migratory path because early humans had the ability to acquire marine food sources.⁹

Genetics have also undermined the mainstream BST. DNA samples suggest humans entered North America at least 20,000 years ago.¹⁰ Furthermore, DNA indicates three separate human migrations rather than the one-time migration under the BST.¹¹ Most interestingly, the DNA of Indigenous Amazonians is conclusively linked to the DNA of Indigenous Australians and Melanesians.¹² The language of the native inhabitants of Easter Island, off the coast of Chile, is also more closely related to Polynesian language groups than Indigenous South American languages.¹³

Although Australasian DNA and artifacts from Monte Verde proffer the possibility of an ancient oceangoing voyage, most archaeologists reject this idea.¹⁴ Instead, most experts believe humans crossed from northern Asia into the Americas. Proponents of the Kelp Highway Hypothesis, however, do believe watercrafts were used to follow the shoreline – which would have extended much farther into the Pacific Ocean thousands of years ago.¹⁵ According to the hypothesis, people sustained themselves by collecting the ample food resources along the coast. After entering North America, the earliest people on the continent would have been able to avoid group conflicts by simply moving to unclaimed lands.¹⁶ This begs the question: Why did the very first Americans migrate south so rapidly?

The answer may never be known, but the Americas’ earliest arrivals had the same inquisitive minds as contemporary humans. Hence, people may have merely been eager to explore uncharted lands.¹⁷ Whatever the reason, science has made clear that the ancestors of American Indians did not all enter North America simultaneously. What’s more, Indians were developing civilizations at similar rates as people in other parts of the world.

1.2 Early North American Civilizations

Ancient civilizations, such as Sumer in Mesopotamia, are well-known. Sumer formed around 4500 bce.¹⁸ Watson Brake, located in northern Louisiana, has been inhabited since approximately 4000 bce, and by the year 3500 bce, Watson Brake’s inhabitants began constructing mounds. There is evidence of minor agriculture, but Watson Brake’s residents subsisted primarily from marine life,¹⁹ as well as deer, turkey, and small mammals.²⁰ However, no evidence of long-distance trade or other commercial activity has been discovered at Watson Brake.²¹

Around 2000 bce, Poverty Point became North America’s first great trading center. Poverty Point is located in northeastern Louisiana along Macon Ridge. The elevated ridge kept Poverty Point residents dry despite the site’s proximity to major waterways. These waterways served as natural infrastructure to facilitate commerce, and Poverty Point was a vibrant commercial hub. Although Louisiana does not contain an abundance of natural stones, more than seventy tons of rocks and minerals were transported to Poverty Point during its existence. These include both stone in its raw form and premanufactured goods such as spear points, soapstone bowls, and jewelry. Items made their way to Poverty Point from as far away as Iowa and the Appalachian Mountains.²²

The high volume of long-distance trade transformed Poverty Point into North America’s first city. While most early Americans were still nomadic, hundreds of people resided at Poverty Point throughout the year. Hundreds of people living together in relative harmony requires a governance structure, so the governance structure at Poverty Point had to be sophisticated. There is no other way to explain the construction of the massive mounds there. The largest mound is 72 feet tall, 710 feet long, and 660 feet wide.²³

These mounds were constructed solely with Stone Age tools and human muscle – this required moving approximately 15.5 million baskets filled with soil.²⁴ Constructing each of the mounds at Poverty Point took roughly twenty-five generations. A significant degree of planning and social organization is required to orchestrate a project of this magnitude. For example, people cannot simultaneously procure food and build mounds. This means Poverty Point’s inhabitants understood the concept of division of labor. Moreover, designing a multigeneration project without written plans requires incredible vision and communication skills.

Commercial reach and its grand earthen mounds made Poverty Point culturally influential.²⁵ Thus, people visited it for both economic and spiritual reasons. On the economic front, Poverty Point’s comparatively large population provided increased opportunities for trade.²⁶ On the cultural front, people were likely mystified by the sizable mounds and associated this with divine power. The exact nature of spiritual and other cultural influence is difficult to discern due to the absence of written records; nevertheless, Poverty Point was undoubtedly a gathering place. Its great plaza appears to be a large ceremonial site, containing circles more than 200 feet across and postholes over two feet in diameter.²⁷

By the year 600 bce, Poverty Point was no longer a significant city. No Indigenous North American society would match Poverty Point’s grandeur for another thousand years. However, this does not mean societies completely vanished from the continent after the decline of Poverty Point. The archaeological record shows multiple cultures continued thriving elsewhere on the continent. For example, Snaketown, near modern-day Phoenix, emerged around 300 bce but would not reach its peak until approximately 1000 ce. The Hopewellian culture also began to take shape during the year 200 bce, which would eventually produce several significant cities.²⁸

The Hopewell culture gave rise to the largest and most significant precontact North American site, Cahokia, located just across the Mississippi River from present-day St. Louis, Missouri. Cahokia formed around the year 700 ce. Its population was likely around 1,000 people at this time, but by 1000 ce, Cahokia’s population exceeded 40,000 people. This means Cahokia was larger than most European cities of the era, including London and Paris. This large population was extremely cosmopolitan as DNA evidence reveals approximately one-third of Cahokia’s inhabitants were from places as far away as the Gulf of Mexico, the Rocky Mountains, and the Great Lakes.

Cahokia’s large population was well-organized. Proof of social organization comes from the city’s size. The city covered six square miles and was filled with massive earthworks. Cahokia’s largest earthwork, the largest precontact structure in the continental United States, is known as Monks Mound. Monks Mound is larger than the Great Pyramid at Cheops.²⁹ It rises 100 feet above the ground, is nearly 800 feet wide, and is over 1,000 feet long.³⁰ More than 100 smaller mounds lie within Cahokia’s borders. Tools were stone; plus, there were no beasts of burden. Accordingly, constructing even the smallest of these mounds required a considerable labor force working nonstop for a decade.³¹ In addition to the earthworks, Cahokia contained large buildings such as the capitol building atop Monks Mound, which was 100 feet long, 50 feet wide, and 50 feet tall.³² Some mounds were also encircled by defensive palisades consisting of approximately 20,000 logs.³³ At Monks Mound, guard towers sat atop the palisade.³⁴

Cahokian society was likely highly stratified. Monks Mound was probably where the Cahokian elite lived, and Cahokian leaders clearly had the power to decree death sentences as there are mass graves that suggest human sacrifice.³⁵ The planning and logistics necessary for Cahokia’s sizable construction projects seem impossible without centralized government. Indeed, Cahokia had zoned neighborhoods.³⁶ Moreover, the Cahokian government likely provided subsidies to laborers.³⁷ These subsidies may have contributed to Cahokia’s large immigrant population. After all, life in a small, ancient society can be fraught with uncertainty over meeting life’s basic needs. Trading labor for a meal would have been a rational decision.

The lower classes of Cahokia presumably worked hard; however, Cahokia provided many benefits outside of a steady meal. Cahokia’s large population offered individuals the opportunity to specialize in a particular occupation,³⁸ and specialization leads to higher quality goods and services. The large population also meant there were substantial market opportunities. In fact, goods from as far west as the Pacific Ocean,³⁹ as far east as the Atlantic Ocean, as far south as the Gulf of Mexico, and at least as far north as the Great Lakes,⁴⁰ reached Cahokia. In addition to commercial benefits, Cahokia’s social life was vibrant.

Cahokia’s social and spiritual magnetism may have been more enticing than the city’s economic opportunities,⁴¹ as there appears to have been no permanent marketplace within the city.⁴² Some contemporary researchers think ancient religions believed water was a bridge between the living and the dead; thus, Cahokia’s watery geography could have been theologically significant.⁴³ If Cahokia’s leaders were thought to be divinely imbued, this would have justified their authority over the populace. Beyond religion, there were tremendous social events, including athletic contests, at Cahokia’s Grand Plaza, which could hold more than 10,000 people at once. There is evidence of 2,000 deer being consumed at a single event, and considering the deer were not farmed, this is a herculean logistical feat.⁴⁴

Cahokians ate well, too, as evidence shows their diet was diverse. Fish was the primary source of protein for Cahokians, but they also consumed deer, small mammals, birds, and reptiles.⁴⁵ Cahokians grew a variety of plants, and diversity offers nutritional benefits. But perhaps more importantly, variety provides food security because multiple different crops are unlikely to fail simultaneously.⁴⁶ Although maize eventually became the predominant crop,⁴⁷ Cahokians continued gathering wild plants too,⁴⁸ but even wild crops were aided by human intervention such as controlled burnings, which help rid the land of undesirable vegetation and pests.⁴⁹ Trade was another source of food. For example, Cahokians consumed large quantities of yaupon beverages for ceremonial purposes. Yaupon is North America’s only indigenous source of caffeine, and the plant primarily grows in what is today the southeastern United States.⁵⁰

Cahokia’s influence began to fade around the year 1300. One possible explanation is climate change. Cahokia’s population boomed during a period when the climate was particularly good for agriculture. The pendulum swung to floods and droughts during the 1300s. As a result, supplying a large population with food became increasingly difficult. Similarly, the sizable population strained local resources. There is evidence, though it is debated, that Cahokia’s demand for timber diminished forests and triggered natural consequences, including soil erosion and depleted wild game. Another possibility is war. After all, Cahokians would not have built fortifications if there was no external threat.⁵¹ Whatever the causes, Cahokia was largely abandoned by the year 1400, although people began repopulating the area by the year 1500.⁵²

Around the same time Cahokia flourished in the American heartland, Chaco Canyon bloomed in the American Southwest. Though people have lived in the Four Corners region since at least 300 bce,⁵³ the population surged in approximately 875 ce. Monumental construction projects began a century later.⁵⁴ The buildings at Chaco Canyon were among the largest in North America until the late 1800s.⁵⁵ Some of the buildings were five stories tall and had up to 700 rooms.⁵⁶ In fact, Pueblo Bonito was the world’s largest apartment building until 1882.⁵⁷ Constructing these buildings required importing more than 200,000 trees from over 50 miles away – with no horses, vehicles, or major waterway.⁵⁸ Moreover, the structures at Chaco Canyon are largely stone, which required tremendous effort to move by human muscle alone. Aside from its scale, the buildings are perfectly aligned with the cardinal directions and tracked astrological events, including solstices and the nearly twenty-year cycle of the moon.⁵⁹

Logistical challenges did not end with construction. Chaco Canyon was located in the middle of a high desert climate. Scorching hot days combined with bone-chillingly cool nights are suboptimal conditions for human habitation.⁶⁰ Modern research suggests only about 100 acres of land at Chaco Canyon were farmable, and even with wild game, the local resources would barely have been able to sustain a population of 2,000 people.⁶¹ Nevertheless, 2,000 people is the lowest estimate for Chaco Canyon’s population. The maximum estimate was 6,000 people.⁶² Thus, extensive trade was necessary for Chacoans to comfortably survive, and there is abundant evidence of Chacoan trade. Items such as macaw feathers and cacao beans from more than a 1,000 miles away were present in the ancient city.⁶³

The food supply is only one of Chaco Canyon’s mysteries. At the most fundamental level, how were Chacoans able to produce such monumental structures? Chacoans were preliterate, and erecting the buildings in the middle of the desert required an extreme amount of intergenerational logistics.⁶⁴ There is also the question of why people with such sophisticated engineering skills would choose to build in the middle of the desert. Chaco Canyon’s purpose is also unclear. Some believe it served as the seat of a military empire. Others think it was primarily a commercial hub. Yet others theorize Chaco Canyon was a ceremonial site that was hardly ever populated. Regardless of the answers to these questions, Chaco Canyon was abandoned by the year 1250.

Cahokia and Chaco Canyon are the best-known precontact North American cities, but there were others. Spiro, in eastern Oklahoma, was one of those cities. The inhabitants of Spiro engaged in a tremendous amount of commerce, collecting goods from the Gulf of California, South Florida, the Great Lakes, and the Atlantic coast.⁶⁵ Etowa, in Northern Georgia, was another large, precontact North American society that archaeologists know engaged in extensive trade and possessed a complex governance structure.⁶⁶ Located in southern Colorado, the Anasazi thrived and built stone structures at Mesa Verde that rivaled the Giza Pyramids in sophistication.⁶⁷ The Anasazi successfully engaged in agriculture in the desert climate, developed extensive trade networks, and even domesticated turkeys.⁶⁸ Several other early North American sites exist.⁶⁹

But like in the contemporary United States, most North Americans resided in small towns. Residents of these Indigenous towns lived in a variety of immobile dwelling structures including longhouses in the northeastern United States. Longhouses were made of wood, and some were more than 300 feet long.⁷⁰ Tribes along the Gulf of Mexico made huts of palmetto. The Mandan, Hidatsa, and Arikara lived in partially subterranean earth lodges, engineered to keep those inside warm during frosty Great Plains winters.⁷¹ Pueblo Indians in the southwest built homes of stone and brick that have stood for centuries.⁷² Some of these sedentary societies made seasonal migrations to capitalize on seasonal changes, much as modern-day New Englanders flock to Arizona in the winter.

1.3 Indigenous Institutions

Sedentary societies meant most tribes invested their energy into developing local resources. Hence, most Indians consumed diets that were predominantly plant-based prior to European arrival, and Indians were highly skilled farmers.⁷³ Although Indigenous technology may have been simple by today’s standards, Indians had a thorough understanding of agricultural science. For example, Indians carefully selected the seeds they planted, and this enabled Indians to develop diversity within a single species. As a result, Indians would select particular lakes and ponds to grow different varieties of “wild” rice.⁷⁴ Indians also took measures to ensure seeds had a fertile environment to grow, such as building irrigation systems,⁷⁵ as well as strategically burning land to enrich the soil.⁷⁶ Likewise, the Indigenous three-sister crops of corn, beans, and squash were grown together not merely as a matter of mythology but for efficient crop production. Science now shows the three-sisters system provides optimum growing conditions for the plants and also sustains the land.⁷⁷ Scientists have recently discovered that many of the plants growing “wild” in North America’s forests are actually the product of deliberate Indian action.⁷⁸

Indians were willing to make deliberative efforts to improve the land because tribes respected property rights. Property is a complex topic, but fundamentally, property refers to those who can assert authority over a thing. All tribes had territories they recognized as their own. Tribes would take measures to delineate borders, like the Houma, who used a red stick to mark their boundary with the Bayougoula at the site of present-day Baton Rouge – French for “red stick.” Even nomadic tribes recognized territorial rights. For example, a particular tract belonged to the Dakota when it was buffalo season while the same tract was under Chippewa control during deer season.⁷⁹ A natural derivative of this was tribes would charge tolls to cross their land.⁸⁰

As with any people, boundary disputes arose among tribes. Border conflicts could be resolved through war;⁸¹ hence, many Indian villages were surrounded by palisades.⁸² Tribes also built moats around villages to slow enemy advances.⁸³ In addition to war, tribes resolved territorial disputes through war proxies. Many tribes on the Great Plains considered counting coup the highest military honor. Counting coup was accomplished by merely touching or disarming one’s enemy then letting them go. Counting coup may seem odd to western sensibilities; however, it is a rational territory marker. Survivors can return to their tribes and tell their comrades that another tribe claims the tract of land. Furthermore, a warrior with the capacity to successfully count coup will likely prevail if the combatants meet in another round of fighting.⁸⁴ Tribes located in the eastern portion of the contemporary United States referred to stickball, a game much like modern-day lacrosse, as “the little brother of war.” Stickball was a very physical and violent sport. Participants usually did not die; nevertheless, stickball prowess would have been a strong indicator of military aptitude.⁸⁵ Thus, stickball and counting coup were efficient, nonlethal means of resolving intertribal disputes.

Within tribes, individual Indians held property rights to land and other items. Agricultural tribes recognized individual ownership interests in specific tracts of farmland; hence, the Cherokee used rocks to mark the boundaries of their personal property.⁸⁶ Algonquian tribes recognized private property rights in hunting territories.⁸⁷ Tribes in the Pacific Northwest recognized private property rights in fishing territories.⁸⁸ Individual Ottawa families privately owned trade routes.⁸⁹ The nomadic tribes of the Great Plains generally did not recognize private property rights in land because the tribes were constantly moving. Nevertheless, these tribes did recognize individual rights to cultivated land.⁹⁰ Private property rights usually entailed some degree of alienability, including the ability to sell land. Similarly, Indians privately owned improvements made to their land such as crop storehouses, clam gardens, and fishing platforms. All of an Indian’s personal property was privately owned, and Indians also privately owned intellectual property in songs, stories, and crafts.⁹¹

Property was only one of the areas governed by Indigenous law. Tribes recognized tort actions. For example, a property owner would owe damages to persons who slipped and fell if the Indian owner was found negligent.⁹² Tribes recognized contract rights. To facilitate commerce, Indian merchants would allow items to be purchased on credit, charge interest, and offer warranties on goods – even healers were expected to reimburse patients if their proposed cure failed.⁹³ Tribes developed secured transactions mechanisms including intermarriage, the calumet ceremony, and pledges.⁹⁴ These laws would have been enforced through private actions. Some matters would be resolved through public judicial process, and sometimes through a process much like present-day arbitration.⁹⁵

To facilitate commerce, tribes did more than develop legal institutions. Tribes used currencies including wampum, dentalia, and feathers. Like currencies throughout the world, some Indigenous currencies appear to have suffered from inflation. Tribes may also have developed systems analogous to fractional reserve banking.⁹⁶ Uniform systems of measure were used by Indigenous merchants, too. The magnitude of commerce with diverse peoples led to the emergence of Indigenous trade languages, like Chinook in the northwest and Mobilian in the southeast. Additionally, a pan-Indian sign language enabled communication across almost all of North America’s numerous and diverse precontact cultures.⁹⁷

Tribes built physical infrastructure to facilitate travel and trade. Many roads in the contemporary United States trace these Indigenous roads. However, waterways served as Indians’ major commercial transportation. Waterways were so valuable to tribes that they dug canals to connect natural waterways to expedite travel. Indians also designed a wide variety of boats, some capable of carrying several tons of goods across treacherous waters. Seaworthy watercraft enabled Indians on present-day Vancouver Island to make trade expeditions up to Alaska and Siberia.⁹⁸

Tribes also developed methods of punishing crimes. Some tribes, like the Sioux and Yurok,⁹⁹ focused on restorative justice. Accordingly, crimes – including murder – were not dealt with through retribution. In a restorative justice model, families of the perpetrator would offer compensation in money or property for the crime.¹⁰⁰ Payment constituted complete settlement of the matter.¹⁰¹ But the compensation was not “blood money,” payment in lieu of revenge. Rather, the indemnity was an act of contrition to restore tribal harmony. Consequently, families often granted clemency while refusing remuneration.¹⁰²

Some tribes had more punitive justice systems. Among the Cherokee, clans were responsible for punishing their members who harmed people from other clans. A clan’s failure to discipline the wrongdoer authorized the victim’s clan to avenge crime against any member of the perpetrator’s clan. Therefore, clans had an incentive to prevent malfeasance and punish their members.¹⁰³ Possible punishments from Indigenous justice systems included floggings, banishment, facial scarring to notify the world of the wrongdoer’s crime, and execution.¹⁰⁴

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The archaeological record is replete with examples of well-established, sophisticated, Indigenous societies in North America prior to Columbus’ arrival. Early Americans were well aware of these facts too, but they refused to believe Indians could have created these civilizations. For example, the five-story castle carved into a limestone cliff near Phoenix, Arizona is called Castle Montezuma because non-Indians refused to believe the United States’ Indigenous inhabitants could construct a structure so complex – thus, it must have been the Aztecs.¹⁰⁵ Similarly, the remnants of an ancient city in Wisconsin were named Aztalan because non-Indians believed the Aztecs were responsible for the constructions rather than the local Indigenous population.¹⁰⁶ And in the 1880s, Congress appropriated money to study Indian mounds in hopes of proving the mounds were constructed by people other than Indians; however, the study determined Indians built the mounds.¹⁰⁷ To this day, people still have a hard time believing ancient pre-Columbian Indians developed governments, constructed buildings, and engaged in trade. The simple Indian prototype is no accident.

2 “Discovering” and “Founding” America

The Americas’ Indigenous inhabitants “discovered” America, and the Americas’ Indigenous Peoples developed the Americas’ original governments. North Americans existed with no knowledge of Europe, and Europe had no knowledge of the Americas for most of history. When Europeans arrived in the Americas during the Age of Discovery, they rewrote history. Though they were not in North America first, European nations claimed they “discovered” it. And through the magic of discovery, the sovereignty of the original American governments began to wane.

2.1 Voyaging to America and the Law of Discovery

While hundreds of civilizations existed in North America for thousands of years, Christopher Columbus is widely credited with “discovering” America in 1492. Not only does attributing “discovery” of America to Columbus disregard Indigenous existence but Columbus was not even the first old world denizen to contact the Americas. Some believe the Irish monk St. Brendan sailed from Ireland to Labrador around the year 500 ce. While this cannot be disproved, there is little evidence verifying St. Brendan’s American expedition.¹ The Polynesians also may have arrived in the Americas before Columbus. DNA evidence indicates contact between Polynesians and coastal Columbians and Ecuadorians circa 1200 ce.² The sweet potato was also prominent among Polynesians when Britons first contacted them in 1769, and the sweet potato is indigenous to the Americas.³

The Vikings, however, verifiably ventured into North America before Columbus. Viking settlements in Newfoundland have been discovered dating back to the year 1000 ce. Indigenous People already inhabited the island, and there is evidence of trade between the two groups. Despite commercial relations that appear to have been consensual, the Vikings clearly did not think much of Newfoundland’s Indigenous People, referring to them as skraelings, meaning “wretched people.”⁴ Vikings abandoned their settlement soon after creating it. Researchers are not sure why, but according to Viking lore, hostilities with the Natives forced the Vikings to withdraw.⁵

Although Columbus was not the first person from foreign shores to see the Americas, he is the most consequential. Columbus was born during the Age of Discovery, a time when European nations began looking beyond the Mediterranean. Portugal led the race to claim new lands. In 1436, the pope granted Portugal the exclusive right to colonize the Canary Islands because the Indigenous Canary Islanders were deemed simple heathens. Portugal’s claim was extended to all of Africa in 1455 for the same reason. By papal decree, Portugal was authorized:

[T]o invade, search out, capture, vanquish, and subdue all Saracens [Muslims] and pagans whatsoever, and other enemies of Christ wheresoever placed, and the kingdoms, dukedoms, principalities, dominions, possessions, and all movable and immovable goods whatsoever held and possessed by them and to reduce their persons to perpetual slavery, and to apply and appropriate to himself and his successors the kingdoms, dukedoms, counties, principalities, dominions, possessions, and goods, and to convert them to his … use and profit … [and to] possess, these islands, lands, harbors, and seas, and they do of right belong and pertain to the said King Alfonso and his successors …⁶

Portugal grew wealthy because of this papal edict, which was premised upon the Doctrine of Discovery.

The Doctrine of Discovery emerged during the Crusades in the late eleventh century.⁷ The general idea was simple. Catholic Europe believed the pope was God’s chosen representative on Earth. Accordingly, the pope was responsible for humanity’s spiritual welfare. In the words of Pope Innocent IV, “The pope can order infidels to admit preachers of the Gospel in the lands that they administer, for every rational creature is made for the worship of God… If infidels prohibit preachers from preaching, they sin and so they ought to be punished.”⁸ This sentiment justified the Crusades as well as the Age of Discovery. Furthermore, this ideology validated the pope’s endowing Africa to the Portuguese.

Portugal’s neighbor, Spain, wanted its own source of colonial wealth. Since Africa was already Portugal’s property, Spain had to look elsewhere for colonies. Enter Christopher Columbus, a Genoese sailor who promised a western, seaward route to Asia. Columbus’ western route avoided contact with Africa; hence, there would be no interference with Portugal’s claim over the continent. Additionally, a successful voyage to Asia would give Spain rights over the non-Christian continent. The Ottoman Empire closed the Silk Road a few decades earlier, so no Asian goods were entering European markets.⁹ Thus, a claim to Asia meant a fortune for Spain, so Spain agreed to fund Columbus’ Asian expedition.

Columbus departed from Spain in August of 1492. He spent a few months in the Canary Islands finalizing preparations for his journey then set sail for Asia. Remarkably, Columbus landed in the “Indies” in October of 1492 almost exactly as planned.¹⁰ Columbus named the island San Salvador, in the present-day Bahamas.¹¹ Although Columbus thought he was in Asia, this was reasonable based upon the information available to Europeans at the time. Columbus wrote of San Salvador’s natural beauty, but the island’s Indigenous People were what captivated Columbus.

2.2 Spain and Indigenous People

Columbus called the Indigenous Americans he encountered “Indios,” or in English “Indians,” because Columbus believed he was in the Indies,¹² and the Indigenous People can be broadly placed in two groups: the Arawak and Caribs. Of the Arawak, Columbus said, “They are the best people in the world.” The Arawak greeted Columbus with gifts, and Columbus believed they lived a very simple, idyllic life. Columbus wrote about how easily the Arawak could be conquered, enslaved, and forced to adopt Spanish ways. Contrarily, Columbus demonized the Caribs as ferocious cannibals. Columbus likely vilified the Caribs because they sternly resisted Spanish conquest. There is little evidence of the Caribs being cannibals either.¹³ Though Columbus was not fond of the Carib, he described them as more industrious than the Arawak.¹⁴

Although Columbus’ descriptions of the Americas’ Indigenous People were largely erroneous, he was right about one thing – they were not Christian. Accordingly, Columbus had lawful authority pursuant to the papal bull to do with the island’s Indigenous People as he pleased. He originally hoped to enslave the Caribs, but Carib military might made subjecting them impractical. Thus, Columbus turned his attention to the Arawak.

Columbus forced the Arawak to mine for gold and produce cotton. Conditions were appalling. The Arawak were routinely tortured, and many chose to end their own lives rather than live as Spanish slaves. European diseases also wreaked death on the island’s Indigenous People. From an estimated population of 100,000 when Columbus arrived in the Indies, the Indigenous population plummeted to approximately 200 by 1542. Short on local labor, Spain began importing African slaves to fill the Indigenous labor void.¹⁵

Spain soon reached beyond the Indies and launched conquistadors into the American mainland. Juan Ponce de León invaded Florida in 1513.¹⁶ Conquistadors toppled the Aztec and Inca empires by 1533.¹⁷ Spain made contact with the Pueblo Indians of present-day New Mexico by 1539.¹⁸ Hernando de Soto crossed the Mississippi in 1541.¹⁹ These conquistadors described rich and large Indigenous nations,²⁰ but were able to thunder through the Americas thanks to their superior military technology: steel weaponry, gunpowder, and horses. Moreover, European diseases obliterated Indigenous populations.²¹

The papal-sanctioned Doctrine of Discovery validated Spain’s conquest of the Americas; however, Spain sought to further legitimize its colonial efforts. Even Columbus acknowledged the Indigenous islands were inhabited by rational beings. Hence, murdering people and stealing their possessions contradicted cardinal biblical teachings. Spain solved this problem with the Requerimiento. The Requerimiento was an offer to Indigenous Americans to accept the one true God, the pope, and the Spanish throne as the rightful sovereigns of America or:

[W]ith the help of God, we shall powerfully enter into your country, and shall make war against you in all ways and manners that we can, and shall subject you to the yoke and obedience of the Church and of their Highnesses; we shall take you and your wives and your children, and shall make slaves of them, and as such shall sell and dispose of them as their Highnesses may command; and we shall take away your goods, and shall do you all the mischief and damage that we can, as to vassals who do not obey, and refuse to receive their lord, and resist and contradict him; and we protest that the deaths and losses which shall accrue from this are your fault, and not that of their Highnesses, or ours, nor of these cavaliers who come with us.²²

This, of course, was a mere formality because Indigenous People did not speak Spanish. Conquistadors often read the Requerimiento far from the Indigenous People’s earshot, so no Indigenous People ever heard it. The Requerimiento was purely a legal formality.

Colonization was further legitimized through the encomienda system. Through the encomienda, the Spanish Crown granted conquistadors and other Spaniards control over Indigenous People in order to save their souls.²³ In practice, encomenderos – those granted control over Indigenous People in a given area – did little in the name of promoting spiritual welfare. Rather, encomenderos forced Indigenous People to labor and subjected them to egregious abuses. Thus, the encomienda was essentially slavery.²⁴ Life under the encomienda was so grim that Indigenous women killed their own children rather than let them experience Spanish cruelty.²⁵

The brutality of Spain’s Indian policy did not go unnoticed. Francisco de Vitoria was the foremost critic of Spain’s Indian policy. Vitoria was a Dominican theologian and a legal scholar; indeed, Vitoria is widely recognized as the father of international law and federal Indian law. As a natural law scholar, Vitoria believed Indians possessed natural rights.²⁶ This perspective inspired his lecture, De Indies, which states, “From the standpoint of the divine law a heretic does not lose the ownership of his property.”²⁷ While Vitoria thought the Indians “were unintelligent and stupid,” he believed this was a consequence of their environment rather than a genetic defect. Accordingly, Spain had no right to conquer the Americas for these reasons. Nevertheless, Vitoria did believe Spain could lawfully wage war if Indians did not engage in commerce with Spain or prohibited Spain from spreading the gospel. These exceptions essentially rendered the Indians’ natural rights moot; however, bare recognition of Indians’ basic humanity was progress.²⁸

Vitoria’s views were shared by many, and Bartolomé de Las Casas was Vitoria’s best-known contemporary.²⁹ Las Casas believed Indians possessed natural rights, including ownership of the land. Although Las Casas thought Spain should strive to make Christians of the Indians, he believed conversion should not be forced through violent means. In 1515, Las Casas journeyed from South America to Spain to petition for better treatment of the Indians.³⁰ The Spanish monarch Charles I was moved by Las Casas’ plea and charged him with reforming the encomienda system in 1519.³¹

Las Casas returned to the Americas, but the Spanish beneficiaries of the encomienda thwarted his efforts.³² Indians opposed Las Casas, too, as they had no desire to live under Spanish dominion,³³ for Indians had their own governments, customs, and traditions. Unsuccessful at implementing reform, he returned to Spain and published several works critiquing the encomienda, which resulted in Charles I freeing Indian slaves in 1542.³⁴ Nonetheless, the Spanish continued their colonization of the Americas and began settling in what would become the United States.

Spain largely abandoned the idea of colonizing the region north of the Rio Grande after Francisco Vázquez de Coronado’s quest for gold came up empty in 1542. However, hope for riches remained, and the Church was eager to convert the region’s Indigenous inhabitants to Christianity. Efforts to colonize the Rio Grande were revived in the late 1500s,³⁵ and conquistador Don Juan Oñate led a contingent of more than 500 soldiers into present-day New Mexico in 1598. Oñate greeted the Puebloans with the standard Spanish pronouncement of submit or suffer. Acoma Pueblo did not accept Christianity, so Oñate slaughtered its inhabitants. Survivors were enslaved, and Oñate severed a foot from every Acoma Pueblo male over twenty-five years of age. Pueblos converted to Catholicism, at least outwardly, and were forced to labor under the newly imposed encomienda system. Spanish oppression caused the Pueblos to successfully revolt in 1680, freeing themselves from Spanish overlordship. During the eighty years of Spanish rule, the Pueblo population plummeted from 80,000 to 17,000.³⁶

2.3 Britain’s American Colonies

Other European powers did not just watch as Spain grew rich from its American colonies. England would become Spain’s greatest rival. England acquired discovery rights in the Americas in 1497, when the Italian-born English navigator John Cabot made landfall around present-day Newfoundland.³⁷ However, the turmoil surrounding the Protestant Reformation slowed England’s imperial ambitions.³⁸ As a result, England did not authorize American colonization until 1584, when Queen Elizabeth I granted Sir Walter Raleigh permission to “discover search find out and view such remote heathen and barbarous lands Countries and territories not actually possessed of any Christian Prince and inhabited by Christian people.” With this decree, Raleigh sailed to Roanoke, off the coast of present-day North Carolina, in 1585. Little is known about what happened at Roanoke, though it appears the English settlers’ relations with the local tribes deteriorated. By 1590, the colony had vanished.³⁹

England established its first permanent American colony in 1607 at Jamestown, located in present-day Virginia,⁴⁰ but Jamestown was far from the first government in the area. Forty tribes called the area home, and thirty of these tribes were united under a confederacy led by Chief Powhatan.⁴¹ Powhatan was leery of the English and other white men due to the region’s previous encounters with the Spanish.⁴² Although Powhatan’s confederacy could have easily exterminated the paltry group of English settlers – John Smith wrote as much in his journal⁴³ – Powhatan chose to provide the English with food and gifts.⁴⁴ By engaging in diplomatic relations, Powhatan hoped to acquire European weapons and tools for his own advantage.⁴⁵ This did not work out for Powhatan.

The English became dependent on Powhatan for food. When he refused to continue his welfare, the English turned violent. Powhatan tried to maintain amicable relations with the English until his death in 1618.⁴⁶ More English moved into Jamestown, and Indians were rapidly crumbling from old world diseases.⁴⁷ The English became more determined to clear Indians from the land. English-tribal relations were hostile until a treaty ended the violence in 1646.⁴⁸

England was motivated by the prospect of precious metals and a desire to propagate Christianity among the Indians; however, England’s primary goal was establishing permanent settlements in America.⁴⁹ The colonies would be a source of raw materials, such as wood and fur. Moreover, England began enclosing common lands in the late 1500s. This deprived villagers of grazing and gathering rights.⁵⁰ Consequently, many English poor were forced to America.⁵¹ American colonies also provided prime launching points for attacks on Spain’s American commerce.⁵² England would go on to establish thirteen American colonies. But establishing colonies presented England with the same dilemma as Spain – people were already living on the land in well-established societies; obtaining the land by murder and theft would be sinful; what was an aspiring colonial power to do?

While Protestant England was not bound by papal fiats, England adopted the same colonial principles as Spain and Portugal. In Calvin’s Case, decided in 1608 by Sir Edward Coke, one of the most influential legal minds in the history of the English law, the Court of the King’s Bench declared:

All infidels are in law perpetui (d) inimici, perpetual enemies (for the law presumes not that they will be converted, that being remota potentia, a remote possibility) for between them, as with the devils, whose subjects they be, and the Christian, there is perpetual hostility, and can be no (a) peace.⁵³

Others, like English preacher Robert Gray, used a similar rationale for taking Indian land. Gray believed Indians sacrificed their own children in order to worship the devil; therefore, Gray concluded, “[T]he chil∣dren of Ioseph haue an expresse commaundement here in this place, to destroy those Idolaters, and possesse their land.”⁵⁴ Gray even held Christopher Columbus as a model for how to treat Indians.⁵⁵ Similarly, Governor John Winthrop of the Massachusetts Bay Colony believed the English had the right to eject Indians from the land because Indians were nonagricultural.⁵⁶

These assertions were false. Reports had reached Europe by the early 1600s that Indians were farmers;⁵⁷ after all, Indian agriculture kept the Jamestown colony alive. Likewise, Jamestown’s Captain John Smith wrote how meticulously Indians respected individual rights in land. Others made similar observations.⁵⁸ Roger Williams, the founder of Rhode Island, was a staunch advocate of Indian rights. Williams spent substantial time with Indians and published the first dictionary of Indigenous languages.⁵⁹ Based upon his experience, Williams wrote, “The Natives are very exact and pun∣ctuall in the bounds of their Lands, belonging to this or that Prince or People, (even to a River, Brooke) &c. And I have knowne them make bargaine and sale amongst them∣selves for a small piece, or quantity of Ground.”⁶⁰

Although colonists had to pretend Indians did not recognize property rights, there was some support for their theological superiority over the Indians – disease interpreted as divine will. Indians were dying of smallpox, bubonic plague, measles, and other old world diseases at incredible rates. These diseases began to spread in the New England area about a century before Jamestown’s founding as European fishing vessels made contact with the area, often to perform slave raids.⁶¹ Furthermore, tribal trade networks accelerated the spread of disease by rapidly transporting items carrying European pathogens.⁶² While the exact figure may never be known, approximately 90 percent of the Americas’ Indigenous Peoples were killed by European diseases between 1492 and 1650.⁶³ The pious English interpreted the heathen Indians’ extraordinary death rate as a sign from God that it was the colonists’ destiny to be in America.⁶⁴

The English reveled in the suffering Indians endured from disease, but words cannot capture the trauma experienced by Indians. Nine out of ten people each Indian knew were suddenly dead. Dead from an invisible enemy that had only appeared in conjunction with the arrival of Europeans. This magnitude of death caused extreme disruption to Indigenous governments.⁶⁵ In addition to perishing from disease, individuals afflicted with ailments or injured in war could not participate in planting, harvesting, and hunting.⁶⁶ Consequently, food security became an issue, which hindered recovery for the sick and wounded. Survivors fled from Indian cities, and the refugees amalgamated into new nations.⁶⁷ Drastic depopulation spurred the formation of decentralized Indigenous governments.⁶⁸ Looser social organization meant collective labor was more difficult to muster; thus, Indians did not build many major mounds or fortifications after the early 1600s.⁶⁹ European maladies devastated Indian nations. Without the epidemics, Europeans may not have colonized the Americas.⁷⁰

2.4 The Pequot War

Given the distress European arrival caused Indians and the English colonists’ view of epidemics among the Indians as divine will, conflict was inevitable. New England’s first major European-Indian clash was the Pequot War. The Dutch established the New Amsterdam colony at the site of present-day Manhattan in 1624.⁷¹ Eager to control trade with the Dutch, the Pequot subjugated other tribes in the region.⁷² As the English began moving into the area, tensions ran high between tribes, the Dutch, and the English. Conflict erupted in 1634, when citizens of a tribe under Pequot dominion killed Englishman John Stone, who by all accounts was an unsavory character.⁷³ The Pequot and English settlers entered a treaty in hopes of calming the situation but failed to accomplish this goal.⁷⁴

The Pequot War officially began in 1636. Jack Oldham, who had been expelled from Plymouth, sailed to Block Island to trade with Manisses Indians.⁷⁵ The Manisses killed Oldham. The exact circumstances of Oldham’s death are unclear, but it is plausible that Oldham provoked the Manisses.⁷⁶ Nonetheless, the English settlers refused to let the murder stand.⁷⁷ Massachusetts Governor Henry Vane dispatched John Endicott to sack Block Island. Endicott led a raiding party of ninety colonists and killed every Indian male on Block Island. Endicott sold the women and children into slavery.⁷⁸

Deeming war imminent, the Pequot approached an English fort and challenged its defenders to come out and fight. The English accepted the challenge but quickly retreated into the fort upon encountering the ferocious Pequot advance.⁷⁹ After the engagement, the Pequot approached the Narragansett, their rival, about entering an alliance against the English. The Pequot warned the Narragansett that the English would become adversaries of the Narragansett one day. Nevertheless, the Narragansett entered a treaty with the English. The English colonists also allied with the Mohegan.

A series of skirmishes ensued, but the war’s apex occurred at the Battle of Mistick Fort on May 26, 1637. The English stormed the Pequot stronghold at night in hopes of preserving the Pequot valuables for plunder. However, the Pequot repulsed the English onslaught, so the English decided to torch the wooden fortress. Fire quickly engulfed the wigwams. More than 400 Pequot men, women, and children fled only to be slaughtered by the English and their Indian allies in less than an hour.⁸⁰ The Pequot Nation was nearly eradicated,⁸¹ and at the war’s conclusion, the English became the dominant power in the Northeast.⁸² The path was cleared for further English expansion.⁸³

2.5 King Philip’s War

The most consequential event for European-Indian relations occurred nearly forty years after the Pequot War. To this day, King Philip’s War has the highest death toll by percentage of the population of any United States’ conflict. Ironically, the Wampanoag and Pilgrims – the pairing that created Thanksgiving⁸⁴ – were the key players in the war.

Massasoit, the Sachem of the Wampanoag, managed to maintain relatively stable relations with the English. Upon his death in 1661, his eldest son, Wamsutta, known by the English as Alexander, assumed leadership of the Wampanoag. Wamsutta was arrested by the English soon after his ascension for allegedly planning to attack the English.⁸⁵ Immediately after his interrogation, Wamsutta died of unknown causes.⁸⁶ The Wampanoag suspected the colonists had poisoned Wamsutta.⁸⁷ The colonists believed the Wampanoag, under the leadership of Wamsutta’s younger brother Metacom, or Philip to the English, would respond with war.⁸⁸

Although Wamsutta’s mysterious death exacerbated the situation, Metacom likely would have revolted anyway.⁸⁹ He was offended by the English settler’s paternalism – they frequently summoned him, demanded he obtain the colony’s consent prior to selling his nation’s land, and routinely transgressed Wampanoag jurisdiction.⁹⁰ The final straw occurred when the English implicated Metacom in the murder of a Praying Indian, a term used to describe Indians who had essentially assimilated into the colonies. Three of Metacom’s citizens were executed by the English for the offense, though there was no real proof of their guilt.⁹¹ Metacom desired revenge.⁹²

In June of 1675, Metacom led the Wampanoag and their tribal allies against the English. Metacom’s forces scored several victories in the opening months of the war.⁹³ War quickly spread through New England.⁹⁴ The English colonies were at risk of defeat until the Mohawk refused Metacom’s request for an alliance and instead inflicted severe casualties on Metacom’s army.⁹⁵ With Metacom’s military weakened, the English colonies started to prevail.⁹⁶ The English colonies also began incorporating Indian warriors into their militias. The war was all but over when Metacom was killed in battle on August 20, 1676.⁹⁷

King Philip’s War was a decisive point in American history. Never again would tribes come so close to evicting the colonists from America. Furthermore, the colonists’ tactics and treatment of Indians during the war set the precedent for how Indians would be dealt with in later conflicts with the United States. For example, Metacom’s corpse was hanged, quartered, and his head posted on a pole at the entrance to Plymouth as a signal to the tribes: submit or die.⁹⁸ Some Indians who survived the war were enslaved or forced into indentured servitude. Other Indian survivors of the conflict often sought relations with France in hopes of avenging their defeat. Additionally, the near defeat caused England to restrict the colonies’ autonomy, planting seeds that would later blossom into a colonial revolt.⁹⁹

✦✦✦

European arrival shook the foundations of Indigenous North American societies. Over the ages, tribes developed sophisticated governments capable of constructing grand monuments, like Monks Mound at Cahokia, and feeding thousands of people. Following European arrival, these Indigenous governments were cast into turmoil as countless tribal citizens died from European plagues. Indigenous susceptibility to disease was exacerbated by European doctrines legitimizing Indigenous subjugation. Indigenous survivors were forced to begin life anew. They moved to new locations, forged new governments, and used European technologies to transform their cultures.

3 Commerce and Culture

Although European arrival brought plagues and slaughter, the settlers brought new technology to the Americas. Tribal cultures, generally speaking, have always been open to outside influences. After all, tribes developed trade languages to enable exchange with distant and diverse tribal governments long before Europeans entered the Americas. Indians’ natural, human desire for new and better things led them to greet Columbus with commercial efforts. Of course, this good will quickly morphed into hostile relations; nonetheless, Indians were willing to trade with Europeans when the opportunity presented itself. Early colonists on the Eastern Seaboard knew Indians permitted the colonies to exist solely to procure European goods.¹

For those tribes who encountered the Spanish, trade was not an option. Spain sailed across the Atlantic for the express purpose of claiming mineral riches and converting the Indigenous populations. Spain had the capacity to achieve both by force and did; hence, Spain made little effort to trade. England had similar desires, but England also hoped to establish colonies. Owing to the colonies’ weakness relative to the Indigenous populations in New England, England had to trade. Plus, the French and the Dutch had nearby colonies, which enabled the tribes to play European nations off against each other. As a result, Indians and the European colonists traded. Exchanges usually consisted of the Indians providing Europeans furs, food, and slaves in exchange for old world goods. Of the new items available to Indians, the gun and horse were the most transformative.

3.1 Indians and Guns

The French explorer Samuel de Champlain was among the first people to fire a gun in North America. France had claims to present-day Canada dating back to Jacques Cartier’s 1534 voyage into the St. Lawrence River;² however, France had not established any significant settlements, only trading posts. Champlain had been dispatched to create a permanent colony in North America and succeeded in establishing Quebec City in 1608.³ Like the Frenchmen before him, Champlain developed friendly, commercial relations with the Algonquin. The Algonquin tribes were archrivals of the powerful Haudenosaunee, better known as the Iroquois. While these rivals had warred for ages, conflicts had become fiercer and more frequent since European arrival.⁴

In hopes of strengthening commercial ties, Champlain and nine of his French compatriots joined their Algonquin allies in an assault on the Mohawk, a member tribe of the Haudenosaunee.⁵ Eventually, Champlain and his allies encountered a Mohawk force of 200 warriors. The factions taunted one another while proceeding to build defensive fortifications. The platoons approached the battlefield in the morning. Champlain noted the Mohawk warriors were “in appearance strong, robust men” possessed of calm and courage. The troop was led by three chiefs, who were equipped with wooden shields. As forces advanced toward one another, Champlain fired his arquebus.⁶

The flash, bang, and smoke must have been horrifying for the Mohawk, who had never experienced gunfire before. More jarring than the pyrotechnics, two Mohawk chiefs were dead in an instant. The third was mortally wounded. Their shields proved useless. Furthermore, the Mohawk had likely never seen men killed so quickly. Arrows are lethal, but they do not kill instantaneously. In the midst of the Mohawks’ astonishment, another Frenchman loosed his arquebus, causing the Mohawk to flee the battlefield.⁷ Indians may have been in awe of the arquebus’ theatrics, but they immediately realized the weapon’s capacity. They set about acquiring firearms.

Indians were keenly aware of how markets work. They wanted guns, so they knew they had to supply gun merchants with something the sellers desired. Tribes were happy to supply two things New Englanders desired: furs and slaves. Although eastern tribes had long agricultural histories, tribal economies shifted to meet market demands. Indian men became less involved with agriculture and more devoted to hunting and war. This likely contributed to the European belief that tribes were nonagricultural.

On the military front, tribes had long warred with other tribes. Hence, tribes fortified cities dating back to at least 1000 ce. But unlike in other parts of the world, wars between Indian tribes were not usually about territorial acquisition. Rather, intertribal wars often arose from blood feuds. Consequently, avenging a death was the campaign objective instead of subjugation of a rival people. Intertribal wars also presented opportunities for young men to gain prominence as warriors. Individuals captured during intertribal wars were often incorporated as citizens of the rival tribe. Thus, tribal wars were typically low casualty, highly ritualized affairs.⁸ Tribes’ desire for guns altered Indigenous battle. War’s purpose became procuring captives to exchange for firearms.

Obtaining firearms gave tribes a military advantage over their unarmed rivals. Although a bowman could fire several arrows while a gunman was reloading his arquebus, even primitive firearms could slay an enemy up to approximately 100 meters out. This was farther than Indians’ bows; hence, guns provided users with a range advantage.⁹ Similarly, the tiny lead ball launched from an arquebus transmitted six times the kinetic energy of an arrow into its target. Arquebus, and later musket, ammunition could shatter bone and cause severe internal injuries; whereas, arrows primarily cause puncture wounds.¹⁰ Additionally, tribal warfare was often premised on ambushes. The attacking party could fire at its unsuspecting adversary then rush in to finish the conflict at close quarters. Survivors could be traded as slaves for more guns and ammunition.¹¹ Consequently, tribes began raiding other tribes in order to acquire the currency to procure arms for self-defense. The Haudenosaunee used their abundance of guns to drive other tribes from their region.¹²

Furs were the other item Indians used to purchase guns. While many tribes were primarily agricultural, Indians possessed hunting skills. Indians developed myriad techniques to kill their prey, including stalking, the use of decoys, and even very sophisticated traps. As a Dutch observer of the Haudenosaunee noted in 1653, “In a word, they are clever hunters, well trained to capture all kinds of game in various ways.”¹³ Indians used guns to become even better hunters.

Guns significantly increased Indians’ hunting efficiency. Since guns have a longer range than bows, Indians were able to kill from farther away, resulting in fewer opportunities for the creature to discover the hunter and abscond. Arrows are also easily interrupted by tree branches or a mild breeze. Gunshots are impacted less by these factors, leading to greater accuracy. Plus, firearms are far more powerful than bows. For example, a deer struck with an arrow will often run 100 yards or more before passing, and tracking the wounded animal can be difficult. But a clean gunshot can drop a deer instantaneously.¹⁴ This means the hunter can spend time pursuing new quarry rather than chasing wounded animals. More time in pursuit of game results in higher pelt counts, which in turn enabled Indians to acquire additional guns and ammo.

Indians were highly adept at procuring furs, and they had been trading them with European fishermen since the 1500s. However, Russia was Europe’s primary fur source. Coincidentally, the Russian fur supply became depleted around 1600 – right as Europe began to colonize New England and Canada. Indians readily acquired furs to purchase European goods. In fact, Indians began aggressively harvesting the beavers within their tribal territories, devoting less time to agriculture and more to collecting furs to trade. Thus, men spent more time hunting while women devoted more time to processing animals.¹⁵ Indians responded directly to market forces, harvesting greater quantities of fur when fur prices rose.¹⁶ Indians’ hunting exhausted fur supplies in New England and Canada by the mid 1600s.

Beaver depletion was not a product of the tragedy of the commons or the lack of tribal property rights regimes. Rather, tribes did not value beaver as a commodity before European arrival, so tribal property systems did not evolve to address extreme demands for animal furs.¹⁷ In response to the fur trade, some tribes strengthened their property systems to prevent overhunting.¹⁸ On the other hand, the depleted fur supplies within the powerful Haudenosaunee’s territory inspired it to invade other tribes’ territory for pelts. The Haudenosaunee had wiped out the neighboring Susquehannock, Erie, and Hudson tribes by 1700. Other tribes were pushed west, resulting in additional tribal territorial conflicts.¹⁹

The desire for guns revolutionized tribal cultures. Barely three decades after encountering Champlain’s arquebus, the Haudenosaunee had incorporated firearms into tribal ceremonies.²⁰ While tribes never manufactured guns, Indians clearly wielded them well – French and Dutch colonists claimed Indians were equal to or better with guns than Christians by the 1640s.²¹ Indians knew precisely what they wanted in a weapon. They thought the European guns, at more than five feet in length and about fifteen pounds, were too long and heavy for combat. The Haudenosaunee even outright rejected a gift of several guns from the English governor of New York because the Haudenosaunee found the guns too cumbersome. The governor thought enough of the Haudenosaunee’s military might to place an expedited order for a few hundred lighter weapons.²² In the 1660s, the Dutch responded by making guns specifically for Indian demands, about half the weight and a foot shorter than the mainstream European gun models.²³ France designed a gun to satisfy Indian desires soon after the Dutch.²⁴ France even developed a policy of selling guns exclusively to baptized Indians, and Indians responded to the incentive by becoming Catholic, at least nominally.²⁵

Fear of armed Indians led the colonies to pass laws forbidding the sale of guns to Indians;²⁶ in fact, one of Jamestown’s first laws was “[t]hat no man do sell or give any Indians any piece, shot, or powder, or any other arms offensive or defensive, upon pain of being held a traitor to the colony and of being hanged as soon as the fact is proved, without all redemption.”²⁷ However, the laws did not work. Indians merely turned to a different European colony to obtain guns, often making clear that commercial relations meant a military alliance.²⁸ Colonists were willing to flout the law because Indians were willing to pay high prices for guns.²⁹ Indians were amenable to paying because guns had become thoroughly integrated in tribal cultures – by the early 1700s, tribal elders claimed their young people would starve if they were cut off from firearms.³⁰ Colonial gun prohibitions were also ineffective because Indians interpreted restraints on trade as a hostile act,³¹ so bans increased the odds of military conflict.

3.2 The Birth of Indian Horse Cultures

Horses were the other truly transformative technology among the tribes. Horses were in North America long before European arrival. In addition to fossils, there are cave paintings and Indigenous-made horse figurines that predate Columbus by centuries,³² but American horses went extinct approximately 12,000 years ago,³³ possibly due to overhunting by humans.³⁴ Accordingly, no Indian had set eyes on a horse in ages. This made horses particularly daunting from a military perspective – approximately 1,000 pounds in weight and swift with a warrior atop. Hence, the Spanish weaponized horses during their expeditions in the Americas. Horses escaped during Hernando de Soto’s famed expedition from Florida to the Mississippi River in the 1540s. Indians would have encountered these newly wild horses, but without knowledge of the equestrian arts, horses were little more than large deer.

Indians first sustained close contact with horses in the Pueblos. The Indians who lived under the encomienda system were forced into servitude by the Spaniards. Though horses can increase worker productivity, if Indians learned to ride horses, this would increase the tribes’ ability to resist the Spanish. Thus, encomenderos prohibited Indians living under the encomienda from riding horses and barred the sale of horses to the free Indians. In 1621, the governor of colonial New Mexico permitted Indians to ride horses while in the scope of Spanish employment due to labor demands.³⁵ The governor did not lift the prohibition on selling horses to Indians, but Spaniards ignored the ban because Indians had items the Spaniards desired, mainly furs.³⁶ By the mid 1600s, Navajo and Apache were performing mounted raids on Spain’s New Mexican settlements.³⁷ The Pueblo Revolt, however, was the key event in providing Indians access to horses.

Even after falling under Spanish dominion, the people of the Pueblos continued to resist. Several small-scale uprisings occurred over the years, and Spain crushed the rebellions with its trademark cruelty.³⁸ However, the Puebloans were becoming less tolerant of Spain because Spain was becoming increasingly unable to defend the Puebloans from Navajo and Apache raids. The breaking point occurred when Spain executed several Pueblo holy men. Po’Pay, an Ohkay Owingeh holy man and war captain, began to plot a revolt.

Over five years, Po’Pay secretly traveled to forty-five Pueblos, including their traditional enemies, the Navajo and Apache, to strategize. In 1680, Po’Pay dispatched messengers with knotted cords that served as revolutionary calendars. The messengers instructed Pueblo leaders to untie a knot each morning, and the final knot marked the beginning of the revolt. Pueblo informants tipped off Spain, and two messengers were intercepted days before the planned uprising. Under torture, they divulged the scheme. Pueblo leaders quickly adapted and launched their unified attack earlier than originally intended. The coordinated attack blocked roads and Santa Fe’s water supply. Roughly 1,000 Spanish New Mexicans sought refuge in the governor’s palace in Santa Fe. Pueblo warriors encircled the palace. Eventually, the Spaniards broke free then raced south to the Mexican border. The Pueblo force followed but without hostile intent. Had the Pueblo warriors desired, they could have easily destroyed the thinly stretched, disorganized Spaniards during retreat.

The Spanish abandoned most of their horses as they fled the Pueblos. The Pueblo, a sedentary and agricultural people, used horses to make their daily lives easier, but the horse’s primary value for the Pueblo was as a trade item. Puebloans sold horses to other tribes and taught them equestrian arts.³⁹ The horse rapidly spread among tribes, reaching the Pacific Northwest by the year 1700.⁴⁰

Tribal economies centered around the buffalo were forever changed by horses. On the Great Plains, it was very impractical for a human, armed with only a bow or spear, to pursue a buffalo herd on foot. Hence, buffalo hunting was a highly coordinated communal event. One collective bison hunting method was the buffalo jump. A swift, young man would camouflage himself as a wounded bison calf to attract the herd. Other men from the tribe would dress as wolves and drive the buffalo toward the calf. The calf-dressed lad would then jump off a cliff and hopefully find a way to catch himself. The herd would follow, crashing to its collective death. An alternative group hunting technique was the impound method. Much like the buffalo jump, tribes would drive a herd into a wooden corral, with posts about fifteen feet tall, then slam it shut. Indians would rain arrows into the herd from atop the wall. These tactics could yield in excess of 20,000 pounds of meat.⁴¹ Organizing the hunts, building corrals, and processing tons of meat before it went rancid required sophisticated governance structures.

Hunting was much different on horseback. A solo Indian could ride into a herd and slay a buffalo by himself.⁴² Although Indians occasionally performed solo bison hunts, tribes continued to perform communal buffalo hunts after acquiring horses. During communal hunts, individuals marked their arrows. Unique arrow markings enabled an Indian to denote property rights in the downed beast. This system allowed hunters to claim the glory for taking a particular animal. Hunters also obtained prime rights over the disposition of their kill.⁴³

While horses had the potential to make buffalo hunting more efficient, horses had to be trained. Therefore, individual Indians specialized in horse training and related crafts.⁴⁴ As hunting became easier, Indians had more time to devote to arts and religion. Horses also enabled Indians to haul larger teepees and additional personal items. Indeed, teepees were approximately eight feet tall with a ten-foot diameter prior to the horse. After acquiring horses, teepee diameter more than doubled and were up to thirty feet tall.⁴⁵

As the horse spread, tribal cultures evolved. Many tribes on the Great Plains were nomadic and followed the buffalo. A tribe could cover about fifty miles in pursuit of a buffalo on foot, but approximately ten times this distance when mounted.⁴⁶ This expanded range meant encroachments upon the territory of other tribes; hence, intertribal warfare increased. In addition to war becoming more frequent, horse stealing became a primary military objective. In fact, stealing horses from a rival tribe developed into a rite of passage for men in some tribes,⁴⁷ and a family’s status could be measured in the number of horses it owned.⁴⁸ Some individual Indians owned more than 1,000 horses.⁴⁹ Tribes, in particular the Comanche, became exceptional horse breeders. Horses also acquired a spiritual significance among tribes.⁵⁰ The word for horse in some Indigenous languages translates to “sacred dog.”⁵¹

3.3 A New Way of Life

The horse and gun converged on the Great Plains creating the iconic Indian warrior, but Indians adopted numerous other European goods and practices. Although Indians bought beads and alcohol, they primarily purchased items that made their lives easier.⁵² Metal tools and utensils were desired because they enabled Indians to perform their daily labors more efficiently. Indians bought cloth, clothing, and blankets for comfort as well as fashion. In fact, a Jesuit missionary, writing during the 1720s in New Orleans, described the chief of the Tunica as having “long since stopped wearing Indian clothes, and takes great pride in always appearing well-dressed.” The missionary also noted the Tunica chief was “very expert at business.”⁵³ The Tunica chief’s expert business skills help explain why more trade beads were found near the Tunica’s central Louisiana reservation than all of the southeastern United States combined.⁵⁴

Europeans acquired far more than furs and slaves from Indians. Foremost among these items were foods. Corn, potatoes, tomatoes, and numerous other victuals are indigenous to the Americas but became staples of countless cultures across the globe. For example, it is impossible to imagine Irish cuisine without potatoes or Italian food without tomatoes; however, these cultures possessed these comestibles for less than five centuries.⁵⁵ Two decades into the twenty-first century, 60 percent of the foods consumed globally find their origin the Americas.⁵⁶ Corn, the Indian staple crop, is in virtually everything contemporary Americans eat – including chicken, hamburgers, fries, and fish.⁵⁷ Corn is also used to make cardboard, plastics, batteries, fireworks, and more.⁵⁸

Aside from products, Indian technologies had tremendous influence on Europe. Colonial Europeans and later Americans adopted Indian housing designs, from log cabins⁵⁹ to pueblos. Early European and American settlers of the Great Plains adopted Indigenous earth lodges in order to withstand the frigid climate.⁶⁰ Indigenous watercrafts, such as the canoe, kayak, and the dory, were rapidly replicated by Europeans.⁶¹ Europeans quickly learned and used Indigenous fabric dyeing techniques.⁶² Europeans also learned about tar and asphalt from Indians – Indians from contemporary California to Pennsylvania used both as a sealant and for waterproofing. Early oil wells were based on the techniques Indians used to collect tar and asphalt.⁶³ Indian knowledge of medicine was in many cases superior to that of Europeans of the day. For example, Europeans had several plants capable of curing scurvy but were oblivious to their medicinal potential until Indians demonstrated their pharmaceutical power to Jacques Cartier in 1535.⁶⁴ Indigenous knowledge of plant healing properties is at the core of contemporary western medicine.⁶⁵

Indigenous influences extended to European political philosophy. Spain’s encomienda system, which sought to destroy all vestiges of Indian identity, left little room for cross-cultural exchange. However, France and Great Britain traded with and largely depended on tribal allies. This meant tribes continued to exist independently of French and British rule.⁶⁶ As a result, French and British colonists were able to witness Indigenous governments in operation.

During the American colonial era, Europe was ruled by monarchs whose subjects believed they were placed on the throne by divine will. Contrarily, Indian tribes operated myriad governance structures; nonetheless, most were decentralized and noncoercive. Leadership in Indigenous communities was usually based upon earned respect, persuasive ability, and example.⁶⁷ French explorer Pierre Le Moyne d’Iberville interacted with Canada’s Indigenous People during the late 1600s. When he traveled to the mouth of the Mississippi in 1699, he encountered the Houma and described the tribe’s political structure by stating, “The chiefs are no more masters of their people than are the chiefs of the other nations in the direction of Canada.”⁶⁸ Accordingly, individual Indians usually exercised a high degree of personal autonomy while European lives were largely at the disposal of the Crown.⁶⁹

Many colonists found tribal life attractive; indeed, many Europeans joined tribes. Tribes were generally willing to grant citizenship to outsiders. For example, by the 1700s, the Haudenosaunee were incorporating entire tribes into their ranks.⁷⁰ Race often played no role in citizenship as whites and blacks were incorporated into tribes.⁷¹ Since tribes had food surpluses while the colonies often struggled to survive, migrating to a nearby well-fed, laissez-faire government was a great temptation for many colonists. Therefore, many colonies enacted laws prohibiting their citizens from immigrating to tribes.⁷²

Perhaps the greatest divide between Indians and Europeans was the treatment of women. Women had few rights in Europe, and upon marriage, they became property of their husband.⁷³ Their life opportunities were largely limited to housekeeping and childrearing. Contrarily, most tribes were matrilineal, so children inherited their mother’s clan rather than their father’s.⁷⁴ Tribal governments typically had gender-based divisions of labor, but women’s work was valued. Land within tribes was often owned exclusively by women, and men moved into the wife’s family upon marriage.⁷⁵ Women also held respected leadership roles within tribes, including selecting which men would become chiefs and determining when men could go to war.⁷⁶ Moreover, Indian women had far more autonomy over their bodies than their Euro-American counterparts. During retaliatory raids, tribes would often take white women as captives. The white women captives were abused sometimes; nonetheless, white female captives often refused to leave their adopted Indian families.⁷⁷

Descriptions of the new world’s political systems led to a revolution in European political thought. Tribes proved monarchs were not a necessary component of society. Poets, playwrights, and philosophers began mulling the concept of liberty. The ideal of the “noble savage” was born and molded to serve the authors’ preferences. The political ideas inspired by contact with Indians shook European thought.⁷⁸ European Enlightenment was a direct consequence of cultural exchange with Indians.⁷⁹ Enlightenment thought would fan the flames of colonial liberty.

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Despite European colonial efforts, tribes continued to exist as distinct governments. Tribes and European governments formed alliances for their mutual commercial and military advantage. The exchange of goods and ideas changed the way Indigenous and European governments operated. Desire to control the trade with tribes caused a world war. Tribes played a major role in starting the war as well as determining its victor.

4 World War and American Revolution

By the middle of the eighteenth century, Spain, France, and Great Britain were the only European nations with a significant foothold in the present-day United States. Spain’s territories lay in the south, particularly the southwest and also in Florida. France claimed the St. Lawrence River Valley through the length of the Mississippi Valley as well as the Great Lakes and present-day Canada. Spain’s and France’s lands were sparsely populated by Europeans. Despite territory stretching from Canada to the Gulf of Mexico, France had approximately 60,000 citizens in its entire American territory.¹

Great Britain was making a permanent home in its colonies, and its American colonies population exceeded one million by the mid 1700s. This population brought about an increased demand for land. Disregarding France’s claims, British merchants began entering French territory to trade with Indians. Britain conveniently decided the forks of the Ohio River Valley were part of its colonial domain and sent troops to the area. France quickly responded by sending its own force to the region. En route, however, France learned its tribal allies’ loyalty was wavering because the British were trading on more favorable terms.² The French began to repress British merchants in order to protect its colonial interests.³ The more France suppressed British interests, the more tensions rose.

4.1 Enter George Washington

In 1753, Robert Dinwiddie, Lieutenant Governor of Virginia, dispatched a twenty-one-year-old named George Washington to warn the French of repercussions if they did not vacate the Ohio River Valley. Washington was hospitably treated by the French, but the French Captain Jacques Legardeur de Saint-Pierre denied the validity of Great Britain’s territorial claim, asserting the land was plainly under French dominion.⁴ Owing to harsh winter conditions, it took Washington and his crew nearly three months to return to Williamsburg, Virginia. Washington relayed Captain Saint-Pierre’s position to Dinwiddie, who then commanded Washington to lead 160 militia men to the Ohio River Valley as a show of force. While Washington was ordered to “act on the defensive,” Dinwiddie granted him authority to “make Prisoners of or kill & destroy” if the French did not comply with his demands.⁵

Washington led a quarter of his men and a dozen tribal allies in a successful sneak attack against the French on May 28, 1754. The battle was brief but yielded twenty captives and thirteen dead French soldiers. Washington reveled in the victory; however, his glory was short-lived. The French quickly responded, sending a column of 600 troops plus approximately 100 tribal warriors. Anticipating retaliation, Washington built a fort. The construction was shabby, understandable given the potential immediacy of the anticipated attack; nonetheless, the location Washington selected was preposterously poor – low ground in a flood plain, near a dense forest within musket range.⁶

Washington was at a serious disadvantage when the French arrived on July 1, 1754. The odds grew worse when the rain began a few days later, flooding the fort, and rendering the defenders’ gun powder useless. After suffering heavy causalities, Washington surrendered. Washington and his surviving troops were allowed to return home. The fighting was over, but the effects of the battle spiraled on because the articles of capitulation were poorly translated from French to English. Washington, who could not read French, confessed to assassinating a French officer in the surrender document. Washington later denied this.⁷ Nevertheless, the French and Indian War had begun.

4.2 The French and Indian War

At its essence, the war was over whether France or Great Britain would rule North America. However, the clashes between these two colonial powers spilled onto soil in Europe, Africa, and Asia. In these campaigns, Great Britain was aided by Prussia and Hanover. France called Spain, Austria, Russia, Saxony, and Sweden its allies.⁸ Tribes were largely caught in the middle. This is not to say tribes lacked agency; rather, for tribes, the war was often a choice between the lesser of two evils.

Most tribes allied with the French. From an imperial perspective, the French were less demanding than the British. France wanted control of the land and resources, but France had no immediate desire to populate the territory with its citizens. Of course, France had hostile relations with some tribes – for example, it exterminated the Natchez.⁹ Nonetheless, France’s relationships with tribes were ordinarily laissez-faire. To illustrate, the French were usually content with a nominal religious conversion while the Spanish aggressively attempted to impose Catholicism. Additionally, French men often married into tribes. These tribes believed a French victory would result in greater tribal autonomy; in fact, some tribes believed they could expel the French if they routed the English.¹⁰ Nonetheless, some tribes allied with Britain.

As soon as the conflict with France began, Britain and its American colonies vigilantly attempted to form an alliance with the powerful Haudenosaunee. The Haudenosaunee did not accept the solicitation. It believed France had a chance of victory and did not want to join the losing side. Consequently, the Haudenosaunee remained neutral until it became clear Great Britain had the upper hand, and then sided with it. The Catawba were likely Britain’s most steadfast tribal ally, and the Cherokee were its most mercurial. The Cherokee allied with Britain in 1757. But by 1759, Britain and the Cherokee were engaged in an open war with one another.¹¹

In 1760, Great Britain took Montreal, effectively ending the war. Britain and France could not agree on peace terms until 1763, in the Treaty of Paris. The treaty secured Britain all of France’s territory east of the Mississippi River as well as Canada. Britain also acquired Spanish Florida and vast territories in Asia and Africa. In a separate treaty a year earlier, France ceded its claims west of the Mississippi, the Louisiana Territory, to Spain. Although France surrendered its claims to the North American mainland, France retained its Caribbean islands, which were highly lucrative sugar producers.¹²

4.3 The Seeds of Rebellion

The Treaty of Paris was a blow to tribal sovereignty. Prior to the treaty, France and Britain’s territorial claims were ambiguous, enabling tribes to play the countries off against each other. Colonial borders were clarified after the treaty, so tribes could no longer engage in diplomatic gamesmanship. Without French support, tribes were unable to stop the rush of English settlers flooding west of the Appalachians. Similarly, tribes were now forced to deal exclusively with English merchants who were charging elevated prices. Furthermore, the British Governor General of North America, Jeffery Amherst, was not fond of Indians, describing them as “the Vilest Race of Beings that Ever Infested the Earth” and asserting he was “fully convinced the only true method of treating those [Indians] is to keep them in a proper subjection.”¹³ Amherst terminated the traditional diplomatic practice of gift giving and forbade the sale of weapons to Indians.¹⁴

Indians saw a grim future under British rule, and Ottawa Chief Pontiac decided to rebel. Many details of Chief Pontiac’s life are unknown; however, he must have been charismatic as he unified virtually every tribe in the former French territory against the British. His strategy was practical: Tribes should raid the British fort closest to their land.¹⁵ Chief Pontiac led an attack on Fort Detroit in May of 1763, but the British learned of the attack and were prepared. A siege ensued. The British countered with a surprise assault, but Chief Pontiac’s forces thoroughly repulsed the charge at the Battle of Bloody Run. Ultimately, Chief Pontiac failed to conquer Detroit, but tribes succeeded in taking eight of twelve forts west of the Appalachians.¹⁶

Pontiac’s Rebellion ended in July of 1766 and failed to accomplish its goal of driving Britain from North America. Chief Pontiac expected French aid that never materialized. Without a steady supply of guns and ammunition, tribal forces suffered a severe disadvantage.¹⁷ Disease drastically impacted the tribes, too. Whether the tactic worked is disputed,¹⁸ but the English resorted to biologic warfare via smallpox blankets at the Siege of Fort Pitt. Amherst wrote to Colonel Henry Bouquet asking, “Could it not be contrived to Send the Small Pox among those Disaffected Tribes of Indians? We must, on this occasion, Use Every Stratagem in our power to Reduce them.”¹⁹ Amherst encouraged Bouquet to use smallpox “as well as try Every other method that can serve to Extirpate this Execreble Race.”²⁰

Though the rebellion failed to oust the British, it produced a change in Britain’s Indian policy. Tribal forces managed to inflict substantial losses on the British.²¹ This left Britain with little choice but to acknowledge tribal autonomy because Britain was unable to impose its will on tribes. Britain further centralized control over Indian affairs, particularly trade, to prevent colonial governments from mistreating Indigenous populations and avoid additional conflicts.²² Most notably, Britain stationed more than 10,000 troops west of the Appalachians to enforce the Proclamation of 1763, a decree locking Anglo-Americans along the Eastern Seaboard.²³

Britain’s actions angered the American colonists. The American colonists fought the French and Indian War in order to expand west of the Appalachians, and now the Crown was barring them from venturing into territory the colonists believed they had rightfully earned. Exacerbating frustrations caused by their inability to cross the Appalachians, Britain began imposing high taxes on the colonists to pay its recently accumulated war debts. The most infamous of these taxes was the Stamp Act of 1765, which authorized a tax on virtually all forms of paper, including playing cards.²⁴ The American colonists began to rally around the belief that taxation required political representation. Additionally, the violence of Pontiac’s Rebellion spawned an “Indian-hating” culture in the colonies that helped unify the colonists. American colonists began to look past differing national origins and religious views. Accordingly, American colonists started to form a shared identity built around a desire for tribal lands, opposition to taxation without representation, and anti-Indian sentiments.²⁵

4.4 The Revolution Begins

On July 4, 1776, the American colonies formally broke with Great Britain. The Declaration of Independence contains the most significant exposition of human rights ever penned: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Indians were excluded from these rights; in fact, the Declaration names King George’s relationship with the tribes as a reason for separating from Britain: “He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.” The Declaration also lists Britain’s enforcing the Proclamation of 1763 – that is, Britain’s refusal to permit the invasion of tribal lands – as a reason the American colonies needed independence. American hunger for tribal land combined with tribal military power led historian Wilcomb Washburn to state, “[T]he Indian was present also in the subconscious mind of the colonists as a central ingredient in the conflict with the Mother Country.”²⁶

When the fighting between the Americans and the British began, most tribes chose to remain neutral. The Americans and British both preferred this; in fact, the Continental Congress wrote to tribes: “This is a family quarrel between us and Old England… We desire you to remain at home, and not join either side, but keep the hatchet buried deep.”²⁷ As the war progressed, the Americans and British began to aggressively recruit tribal allies. Britain had the more persuasive position because it had reserved western lands for tribes, whereas American colonists were violating tribal land rights and cheating Indians in business transactions. For these reasons, most tribes sided with Britain.

Americans showed no mercy to their tribal opponents. In May of 1779, General George Washington wrote to Major General John Sullivan:

The expedition you are appointed to command is to be directed against the hostile tribes of the six nations of Indians, with their associates and adherents. The immediate objects are the total destruction and devastation of their settlements and the capture of as many prisoners of every age and sex as possible. It will be essential to ruin their crops now in the ground and prevent their planting more. …

… But you will not by any means listen to ⟨any⟩ overture of peace before the total ruin of their settlements is effected – It is likely enough their fears if they are unable to oppose us, will compel them to offers of peace, or policy may lead them, to endeavour to amuse us in this way to gain time and succour for more effectual opposition. Our future security will be in their inability to injure us the distance to which they are driven and in the terror with which the severity of the chastisement they receive will inspire ⟨them.⟩²⁸

Sullivan proceeded to completely ransack Seneca establishments after defeating them on the battlefield. Sullivan scorched every Haudenosaunee longhouse and crop in his path.²⁹

The destruction of Haudenosaunee homes and food had a far greater impact than the military defeat.³⁰ Without their sturdy longhouses and crop reserves, the Haudenosaunee were ill-equipped for what was a winter of record-breaking cold. Desperate, the Haudenosaunee turned to the British for aid but were rebuffed. Thousands of Haudenosaunee men, women, and children died of cold and hunger as a result.³¹ The Cherokee and other tribes who allied with Britain also saw their crops and homes destroyed by American soldiers.³²

Not all tribes allied with Britain though. Immediately before the Revolution officially began, members of the Wabanaki Confederacy, comprising tribes stretching from Maine to Nova Scotia, entered a treaty with the American colonies soon after the Declaration was signed.³³ Farther south, tribes in Spanish Louisiana, such as the Houma and Alabama, fought with Governor Bernardo de Gálvez in his campaign against Britain. Gálvez and his tribal allies took Baton Rouge, cutting off Britain from the Mississippi River,³⁴ and went on to capture all of Britain’s ports on the Gulf of Mexico. The Gálvez campaign severely limited Britain’s ability to muster troops and supplies in conflicts with the Thirteen Colonies.³⁵

The Revolutionary War ended in September of 1783 with a United States’ victory. Despite their significant role in the war, tribes were excluded from the treaty negotiations. A stroke of the pen gave away millions of acres of tribal land without the consent of a single Indian. Many Britons were outraged at their nation’s complete desertion of its tribal allies. Lord Shelburne, the British prime minister who negotiated the Treaty of Paris,³⁶ countered this sentiment alleging, “[T]he Indian nations were not abandoned to their enemies; they were remitted to the care of their neighbours.” Spain continued France’s favorable policy toward tribes in its Louisiana territory, prompting its representative at the Treaty of Paris to decry Britain’s land grant to the Americans, stating the land was under the dominion of “free and independent nations of Indians, and you have no right to it.” However, the American treaty representatives did not share Spain’s view.³⁷ The United States considered the tribes conquered by virtue of their alliance with Britain.

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Although the United States had acquired title to lands west of the Appalachians under the laws of European nations, tribes were flummoxed by this notion. The tribes had not sued for peace, nor had they participated in the Treaty of Paris.³⁸ Tribes could not fathom how diplomats who had never seen their lands could dispose of them from an ocean away. In fact, as far as the tribes were concerned, they were still at war with the United States.³⁹ The United States would soon learn this.

5 Governing the United States and Tribal Rights

Since the United States assumed the Indian tribes were conquered peoples,¹ the United States attempted to impose its will on tribes and take their land. James Duane, a member of the Continental Congress who would go on to serve as New York City’s first mayor,² told the governor of New York in 1784: “I would never suffer the word ‘nation’ or ‘six nations’ or ‘confederates,’ or ‘council fire at Onondago’ or any other form which would revive or seem to confirm their former ideas of independence they should rather be taught that the public opinion of their importance has long since ceased.”³ Duane’s sentiments were widely shared, and there was good reason. As foes who inflicted serious blows upon the Americans during the war, many Americans believed tribes owed the United States reparations.⁴ On top of this, the fledgling United States did not have the capital to pay troops, so those who served in the Revolutionary War were promised land.⁵ Land under tribal control was also the only asset available to finance the United States’ wartime debts.⁶ Though Americans surged west, executing on the United States land claims would not be simple.

5.1 Tribal Resistance

Notwithstanding Duane’s belief, Indian tribes remained a formidable military threat. Britain maintained a presence along the present-day Canadian border, and the Louisiana territory was still under Spanish dominion. Accordingly, the tribes retained access to guns and other European supplies. If the United States tried to take tribal lands by force, it would be in for a costly fight. This was the last thing the United States wanted: It was broke and lacked a standing army. Even if the United States could defeat tribes in war, the financial burden of armed conflict would likely sink the newly formed nation.

Thus, in 1784, the United States entered the Treaty of Fort Stanwix with the Haudenosaunee. The Mohawk, Onondaga, Seneca, and Cayuga agreed to cede some of their lands as reparations for their alliance with Britain; however, the Tuscarora and Oneida secured their land as they fought with the Americans.⁷ The treaty text proclaimed the document was a product of the United States’ “liberal and humane views” and required goods to be paid to the tribes.⁸ Similar treaties would be enacted between tribes and the United States in the ensuing years.⁹

Treaties failed to stop white intrusions onto tribal land. In fact, a Shawnee chief peacefully confronted the Americans who were invading his territory. The Kentucky militia murdered the chief though he was carrying only a copy of the treaty that secured his rights and an American flag.¹⁰ This murder was not an isolated event. American settlers did not consider killing Indians a crime – even if the Indians were peaceful.¹¹ Fearing a war with tribes, George Washington ordered General Josiah Harmar, of the United States Army, to remove the Americans who settled upon treaty-guaranteed tribal lands. Harmar evicted settlers but to no avail.¹² The tide of American settlers kept coming.

The United States’ inability to honor its treaties forced tribes to act. By 1786, the Haudenosaunee, Cherokee, Delaware, Chippewa, Huron, Shawnee, Ottawa, Potawatomie, Twichtwee, and the Wabash Confederacy had formally allied as the United Indian Nations (UIN). The UIN sent a letter to Congress expressing their desire for friendship despite Americans killing “several imminent Chiefs” who were peaceful. The UIN stated treaties should be ratified by all members of the UIN and declared, “[I]f fresh ruptures ensue we hope to be able to excultrate ourselves, and shall most assuredly with our limited force be obliged to defend those rights and privileges which have been transmitted to us by our ancestors.”¹³

War with the UIN posed an existential danger to the United States.¹⁴ The United States lacked the financial wherewithal for a war with tribes; in fact, Congress had to borrow $16 dollars to make payment to a delegation of Indians in June of 1786.¹⁵ Appreciating the gravity of the situation, Congress enacted an Ordinance for the Regulation of Indian Affairs in August of 1786.¹⁶ The 1786 Ordinance divided Indian affairs into southern and northern regions with a superintendent responsible for each region. The regional superintendents were required to regularly correspond with the Secretary of War. The 1786 Ordinance forbade anyone but American citizens from residing in the Indian territory; moreover, the 1786 Ordinance required Americans wishing to reside among the tribes to first obtain a license from the regional superintendent. As a prerequisite to acquiring the license, the would-be licensee’s good character had to be established by a certificate from the governor of his state.¹⁷ By restricting access to the Indian territories to American citizens of good character, the United States could prevent – or at least try to – Indians from obtaining arms from Spain and Great Britain. Plus, the good character provision would theoretically help promote peaceful commercial relations between tribes and the United States, thereby easing tensions.

To bolster the 1786 Ordinance, Congress enacted the Northwest Ordinance in July of 1787.¹⁸ The Northwest Ordinance declared:

The utmost good faith shall always be observed towards the Indians; their lands and property shall never be taken from them without their consent; and, in their property, rights, and liberty, they shall never be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity, shall from time to time be made for preventing wrongs being done to them, and for preserving peace and friendship with them.¹⁹

However, the “just and lawful wars” clause mitigated the Northwest Ordinance’s high-minded rhetoric. “Just and lawful” are relative terms, and Americans believed their victory in the Revolutionary War left them, in the words of George Washington, “as the sole Lords and Proprietors” of what would become the United States.²⁰ Consequently, Americans argued tribes’ refusal to hand their land to white settlers was grounds for a “just and lawful” war.²¹ The 1787 Ordinance also set forth the procedure by which lands in the Northwest Territory could become states, so at best, the United States only intended the tribes would keep their lands temporarily.²² The Northwest Ordinance did nothing to slow the invasion of treaty-guaranteed Indian lands.

Although Americans universally agreed tribal lands should be (if they were not already) incorporated into the United States, war was not President Washington’s or Secretary of War Henry Knox’s preferred method of acquiring tribal lands, the two men with the greatest influence over the United States Indian policy under the Articles of Confederation.²³ Washington expressed his desire to obtain tribal lands by purchase rather than conquest in a 1783 letter explaining:

I am clear in my opinion, that policy and oeconomy point very strongly to the expediency of being upon good terms with the Indians, and the propriety of purchasing their Lands in preference to attempting to drive them by force of arms out of their Country; which as we have already experienced is like driving the Wild Beasts of the Forest which will return us soon as the pursuit is at an end and fall perhaps on those that are left there; when the gradual extension of our Settlements will as certainly cause the Savage as the Wolf to retire; both being beasts of prey tho’ they differ in shape. In a word there is nothing to be obtained by an Indian War but the Soil they live on and this can be had by purchase at less expence, and without that bloodshed, and those distresses which helpless Women and Children are made partakers of in all kinds of disputes with them.²⁴

That is, purchase is cheaper than conquest.

Washington expected tribes to disappear as the American civilization expanded. This meant the United States could pledge annuities to tribes in perpetuity with no expectation of a continued tribal existence. Knox also thought “in a short period the Idea of an Indian on this side the Mississippi will only be found in the page of the historian.”²⁵ While Knox may have believed Indians were doomed, he still viewed tribes as posing an existential threat to the United States. In 1787, Knox opined “that the finances of the United States … render them utterly unable to maintain an Indian war with any dignity or prospect of success.”²⁶

Aside from the impracticality of seizing tribal lands by conquest, both Washington and Knox considered Indian policy a matter of national honor. Both were key figures in the Revolutionary War. Both were well-aware that claiming tribal lands by the sword – in blatant violation of treaties – contradicted their revolutionary republican ideals.²⁷ Furthermore, Knox genuinely believed tribes had valid rights to their land. He stated:

The Indians being the prior occupants, possess the right of the Soil – It cannot be taken from them unless by their free consent, or by the right of Conquest in case of a just War – To dispossess them on any other principle, would be a gross violation of the fundamental Laws of Nature, and of that distributive justice which is the glory of a nation.²⁸

But as things stood, neither President Washington nor Secretary Knox could do anything to prevent American settlers from violating tribal lands. The national government lacked power over states under the Articles of Confederation. While the Articles bestowed the regulation of trade with Indians to the federal government, the Articles contained the caveat, “provided that the legislative right of any State within its own limits be not infringed or violated.”²⁹ Settlers believed their states had just claims stretching from their western border to the Mississippi River;³⁰ thus, states believed the federal government had no authority to prevent them from expanding west.³¹ Consequently, Henry Knox and many others blamed the frontier violence on states encouraging their citizens to march west, even going so far as to note the Indians were “well behaved.”³² John Jay, a president of the Continental Congress who would go on to serve as the inaugural Chief Justice of the United States Supreme Court, wrote in the Federalist Papers, “[T]here are several instances of Indian hostilities having been provoked by the improper conduct of individual States, who, either unable or unwilling to restrain or punish offenses, have given occasion to the slaughter of many innocent inhabitants.”³³

5.2 Indian Tribes and the United States Constitution

The weakness of the federal government, as epitomized by its failure to prevent states and their citizens from violating tribal treaties,³⁴ led to the Constitutional Convention.³⁵ While several issues garnered attention, Indian affairs were at the forefront of the Founders’ minds. Granting the federal government exclusive authority over Indian affairs would prevent conflicts between state and federal Indian policy, thereby reducing tribal tensions. A stronger central government would enable the United States to enforce its treaties with tribes and prevent further violence on the frontier. Moreover, a stronger central government capable of collecting taxes and mustering an army meant a much more formidable American military.

A national army capable of defeating Indian tribes was crucial to the Constitution’s ratification. Federalists and Anti-Federalists vigorously debated how much power the federal government should possess.³⁶ Federalists, those in favor of a stronger central government, argued that the power to muster a national army was needed to protect Americans from “murdering savages” and “Indian depredations.”³⁷ Anti-Federalists believed a strong federal government could easily turn tyrannical. While Anti-Federalists could downplay threats of European invasion from across the Atlantic, the threat of tribal war was different as conflicts were ongoing with no end in sight.³⁸ Indeed, Alexander Hamilton wrote in Federalist No. 24, “The savage tribes on our Western frontier ought to be regarded as our natural enemies, [Britain and Spain] natural allies, because they have most to fear from us, and most to hope from them.”³⁹ Appeals to popular fears of tribal war succeeded as the Constitution came into force on June 21 of 1788.⁴⁰

In addition to serving as a catalyst for the Constitution’s ratification, tribal governments influenced the Constitution’s structure. Europe was ruled by monarchs during the American Revolution. While some tribal governments resembled monarchies, many were democratic.⁴¹ Separation of powers was common in tribal governments. Accordingly, John Adams, a leading revolutionary figure who would become the United States’ second president, wrote tribal governments should be studied because “the existence of the three divisions of power is marked with precision that excludes all controversy.”⁴² Benjamin Franklin modeled his Albany Plan of Union – the first significant proposal to create a collective government among the American colonies⁴³ – on the Iroquois Confederacy.⁴⁴ Several other Founders were familiar with tribal governments through their roles as treaty negotiators and commissioners. Their experience with tribes influenced their views of government structure.⁴⁵

Indian tribes’ footprint on the text of the Constitution is clear. Indians are mentioned twice explicitly. “Indians not taxed” is included in the Apportionment Clause, Article One, Section Two of the Constitution. The practical implication of the Apportionment Clause is Indians were not included in state populations for purposes of determining the number of representatives a state would have in Congress. The rationale behind the Apportionment Clause is simple: Indians were citizens of their tribe and not the United States. Thus, the Apportionment Clause acknowledges tribes are separate governments.

The Commerce Clause, Article One, Section Eight also acknowledges tribes as governments. The Commerce Clause grants Congress the power “[t]o regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” As “with” precedes both “foreign nations” and “Indian tribes,” the clause recognizes tribes as sovereigns outside the bounds of the Constitution. Hence, tribes – to this day – are not restrained by the United States Constitution because they are separate sovereigns. The plain text of the Commerce Clause only permits Congress to regulate commercial matters with Indian tribes. The Clause’s text does not authorize the United States to manage the internal affairs of an Indian tribe any more than it authorizes Congress to manage the internal affairs of Great Britain or France.

Tribes’ constitutionally recognized sovereignty meant tribes were dealt with through treaties, the constitutional mechanism designed for interacting with foreign sovereigns as set forth in Article Two, Section Two. The Constitution explicitly forbids states from entering treaties, meaning states were not permitted to form relations with other sovereigns.⁴⁶ To prevent conflicts over treaty enforcement as well as other federal laws, Article Six of the Constitution makes the United States’ treaties and federal law “the supreme law of the land.” This was done, in part, to prevent states from encroaching upon Indian policy.⁴⁷

Indeed, one of the primary purposes of the Constitution was to prevent states from interfering with tribal affairs. States had some authority over Indian affairs under the Articles of Confederation, and James Madison named state meddling in tribal affairs as a reason the Articles of Confederation failed.⁴⁸ Accordingly, the Constitution grants the federal government exclusive authority to determine Indian policy through the Commerce Clause and Treaty Clause. Furthermore, the Constitution expressly prohibits states from “enter[ing] into any Treaty, Alliance, or Confederation.”⁴⁹ An Anti-Federalist admitted as much, writing:

It is … evident that this state, by adopting the new government, will enervate their legislative rights, and totally surrender into the hands of Congress the management and regulation of the Indian trade to an improper government, and the traders to be fleeced by iniquitous impositions, operating at one and the same time as a monopoly and a poll-tax.⁵⁰

If there was any about doubt of states’ place in Indian affairs, in 1790 President George Washington explained to the Seneca Nation, “The general Government only has the power to treat with the Indian Nations, and any treaty formed and held without its authority will not be binding.”⁵¹

5.3 The Creek Treaty

The Creek Confederacy, a multiethnic tribal coalition, was on the United States’ southeastern border. The Creek maintained commercial ties with Europe through ports in Spanish Florida and New Orleans;⁵² hence, the United States had limited ability to assert economic pressure on the Creek. Moreover, it meant the Creek had access to a steady supply of firearms. Further magnifying hazards posed by the Creek, the Confederacy was under the leadership of Alexander McGillivray. McGillivray was three-quarters European by blood and received a classical education. His understanding of European customs combined with his fluency in English and Spanish allowed him to play the United States, Britain, and Spain off against one another.⁵³

McGillivray’s political acumen enabled him to acquire centralized leadership over the Confederacy, though each village and tribe within it had historically been autonomous.⁵⁴ As a result, McGillivray could summon more than 5,000 Creek warriors at any time⁵⁵ – five times the size of the Indian force causing mayhem for the United States in the Northwest Territory. This figure would be significantly larger if other southeastern tribes allied with the Creek.⁵⁶ In a military conflict, the United States may have been able to prevail, but the financial cost would have crippled the nation. And if the Creek united with the northwestern tribes, the United States was in grave peril. Secretary of War Knox and President Washington knew this.⁵⁷

Knox advised Washington to take preemptive action and form a treaty with the Creek. Washington agreed in 1789. This was the first treaty the United States pursued with a foreign power since the Constitution’s ratification.⁵⁸ Washington dispatched a commission to negotiate a treaty with McGillivray in territory the Creek and the state of Georgia were currently disputing.⁵⁹ McGillivray, however, had no interest in participating. He could outgun the United States; plus, he knew from tribes farther north that the United States’ word was of little value. Nonetheless, McGillivray attended the treaty discussion at the behest of Spain, his primary source of weapons and goods.⁶⁰ Distrustful of the Americans’ intentions, McGillivray arrived at the negotiation with a retinue of 900 armed men.⁶¹ McGillivray rejected all the United States’ terms. He departed the treaty conference with the result he expected while the United States was vexed.⁶²

A year later, the calculus changed. Georgia illegally sold twenty million acres within the borders of the Creek Nation.⁶³ The Creek may have been able to defeat Georgia and the United States at war, but an immortal tide of settlers was another matter.⁶⁴ Washington and Knox were also perturbed because Georgia’s conduct subverted federal authority over Indian affairs. A treaty was needed. Washington and Knox offered to negotiate directly with McGillivray in the United States capital. McGillivray accepted.⁶⁵

McGillivray and twenty-seven Creek leaders were escorted from Georgia to New York.⁶⁶ Along the way, the Creek delegation was warmly treated. The delegation remained in New York for a month, and a deal was reached. The Creek pledged “to be under the protection of the United States of America, and of no other sovereign whosoever”; hence, the Creek were supposed to cease their dealings with Britain and Spain. The Creek agreed to permit a large settlement of whites to remain and in return were guaranteed a territory stretching from northern Florida to Tennessee and running from western Georgia to Mississippi.⁶⁷ Americans were explicitly barred from entering Creek territory without a passport.⁶⁸ Additionally, there were two secret articles. One provided $60,000 of trade goods to the Creek. The other granted McGillivray and other Creek leaders paid commissions in the United States Army.⁶⁹ In August of 1790, the United States Senate ratified the treaty.⁷⁰

Washington’s and McGillivray’s high hopes were dashed nearly as soon as the treaty was signed. Americans continued to disregard the law and invade treaty-secured Creek lands. Georgia never even pretended to assist the United States in honoring the treaty. Knox dispatched federal troops to slow the surge of American settlers, but it was like trying to stop a swarm of locusts with a fly swatter.⁷¹ McGillivray unsuccessfully attempted to muster Spanish and northern tribal support.⁷² He died a few years later, and with his death, the Creek Confederacy lost its best hope of preserving its lands.⁷³ This would only lead to further conflicts. Washington acknowledged as much, explaining to Congress: “In vain may we expect peace with the Indians on our frontiers so long as a lawless set of unprincipled wretches can violate the rights of hospitality, or infringe the most solemn treaties, without receiving the punishment they so justly merit.”⁷⁴

5.4 From Treaties to Trading Posts

Since treaties were perpetually ignored by Americans,⁷⁵ Congress passed an Act to Regulate Trade and Intercourse with the Indian Tribes in 1790.⁷⁶ Like the 1786 Ordinance, the Act required Americans seeking to trade with Indians to first obtain a license from the regional Indian superintendent. Licensed traders were to follow the rules established by the president in all matters relating to Indian commerce. The Act also authorized the United States to prosecute American citizens and inhabitants who committed crimes against Indians in tribal territory or trespassed into tribal territory. By federalizing crimes by Americans against Indians, Congress hoped to prevent further violence on the frontier as tribal punishments of whites were likely to provoke war and states were unlikely to prosecute or convict their citizens for crimes against Indians.⁷⁷ Significantly, the Act declared tribal lands could only be acquired by the United States. This was intended to prevent Americans from surging into tribal lands as the inability to obtain lawful title theoretically created a disincentive to settle on tribal lands. Aside from reducing the probability of tribal war, this provision granted the United States a monopsony on tribal lands. The noncompetitive market meant Indians would have little bargaining power in land sales. Congress repeatedly reauthorized Indian trader laws; however, they proved ineffective at stopping Americans from infringing on tribal lands.⁷⁸

Washington knew frontier conflicts would rage until Americans respected tribal treaty rights, and he knew Americans would continue to violate the law so long as they could profit. Accordingly, Washington believed the United States government should operate Indian trading posts, known as the factory system.⁷⁹ Unlike private traders, the federal trading posts would not be motivated by profit but were merely hoping to cover their costs.⁸⁰ That is, federal trading posts were primarily intended to build amicable relations with tribes as Washington noted, “[T]he trade of the Indians is a main mean of their political management.”⁸¹ Congress obliged Washington and appropriated $50,000 for Indian trading posts in 1795.⁸²

The federal trading posts began with success. Thus, Congress reauthorized the program with triple the funding a year later.⁸³ When the trading posts were up for reauthorization in 1803, President Jefferson explained their purpose:

[W]e consequently undersell private traders, foreign & domestic, drive them from the competition, & thus, with the good will of the Indians, rid ourselves of a description of men who are constantly endeavoring to excite in the Indian mind suspicions, fears & irritation towards us. A letter now inclosed shews the effect of our competition on the operations of the traders, while the Indians, perceiving the advantage of purchasing from us, are soliciting generally our establishment of trading houses among them.⁸⁴

In addition to offering goods at discount prices, trading posts were usually located near forts. Proximity to military bases meant the United States had the capacity to enforce Indian trading regulations.⁸⁵ Trading posts were not an example of government benevolence. Jefferson expressed his true intentions for the Indian factory system in 1802: “[E]ncouraging these and especially their leading men, to run in debt for these beyond their individual means of paying; and whenever in that situation, they will always cede lands to rid themselves of debt.”⁸⁶

The Indian factory system began to lose its appeal after the War of 1812. Britain was no longer able to supply tribes with arms, and Spain’s control of Florida was diminishing by the day.⁸⁷ Thus, the United States did not need trading posts to build good will with tribes. Additionally, several people doubted whether the trading posts ever worked. For example, in 1809 the governor of the Illinois Territory declared, “I have never been able to discover, and I defy any man to specify, a solitary public advantage that has resulted from it [the factory system] in this country.”⁸⁸ There were only twenty-eight trading posts, a paltry number given the expansive Indian territory,⁸⁹ and long journeys made trading posts unattractive to Indians.⁹⁰ Furthermore, Indians associated the trading posts’ low prices with low quality as a federal report on Indian trading posts noted, “[T]he Indians, who are good judges of the quality of the articles they want, are of the opinion, that the Factor’s goods are not so cheap, taking into consideration their quality, as those of their private traders.”⁹¹ Private Indian traders also actively lobbied to end the factory system.⁹² Congress ultimately obliged in 1822.⁹³ Upon the closure of the federal Indian trading posts, federal officials confirmed the Indians’ assessment of trading post goods, deeming the items on hand of such poor quality as to not even be worth giving away.⁹⁴ Likewise, Indian trading posts did little – if anything – to prevent tribal lands from being invaded by Americans.⁹⁵

5.5 Title to Indian Lands

Although private purchases of Indian lands had been illegal since before the United States’ founding, a highly doctored version of the 1772 Camden-Yorke Opinion on the land rights of the East India Company in India was used as legal authority to validate private purchases of land directly from Indian tribes in the United States.⁹⁶ These private purchases became a source of controversy when the United States began selling western lands to raise money and encourage western settlement.⁹⁷ The controversy came to a head when William McIntosh purchased western lands from the federal government that Thomas Johnson, a former United States Supreme Court Justice,⁹⁸ and his business partner had purchased directly from the Illinois tribes.⁹⁹ Johnson died in 1819 and his heirs commenced an ejection proceeding against McIntosh.¹⁰⁰

Historians have confirmed the tracts of land owned by Johnson and McIntosh did not intersect.¹⁰¹ While McIntosh prevailed at trial, he did not raise any defenses relating to the tracts’ lack of overlap. If the tracts did not overlap, there was no issue. McIntosh’s failure to raise this defense has led historians to believe the parties colluded, or McIntosh, like so many other Americans, simply wanted an answer to one of the foremost issues of the day: Do tribes own their land?

In 1823, a unanimous Supreme Court held the Indian tribes do not own their land. The opinion was simple enough. Christian Europeans acquired title to the Americas upon their “discovery” of the new world. Every European nation accepted the Doctrine of Discovery as international law. The United States was heir to Great Britain’s claims, and no nation abided by the Doctrine of Discovery more ardently than Great Britain.¹⁰² Chief Justice Marshall explained:

However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear; if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land, and cannot be questioned.¹⁰³

Chief Justice Marshall further elaborated, “Conquest gives a title which the Courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim which has been successfully asserted.”¹⁰⁴ Therefore, private individuals could not lawfully acquire land from Indian tribes because tribes possessed only “the right of occupancy,” and only the discovering European nation could extinguish Indian title.

Chief Justice Marshall’s description of the Doctrine of Discovery as an “extravagant … pretension” suggests he may have believed it was suspect – legally, morally, or both. Accordingly, he bolstered the opinion by denigrating Indians, averring, “[W]e think, find some excuse, if not justification in the character and habits of the people whose rights have been wrested from them.”¹⁰⁵ Chief Justice Marshall further stated, “[T]he character and religion of its [North America’s Indigenous] inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency.”¹⁰⁶ Indian inferiority led Chief Justice Marshall to declare, “To leave them in possession of their country, was to leave the country a wilderness.”¹⁰⁷ Thus, tribes could be rightfully dispossessed of their land in the name of advancing civilization. Perhaps Chief Justice Marshall was unsure about the morality of his contention because he noted, “We will not enter into the controversy, whether agriculturists, merchants, and manufacturers, have a right, on abstract principles, to expel hunters from the territory they possess, or to contract their limits.”¹⁰⁸

Nevertheless, Chief Justice Marshall was not wholly unsympathetic to Indian plight. In Johnson v. M’Intosh, Chief Justice Marshall admits whites caused the vast majority of conflicts between tribes and the United States.¹⁰⁹ He believed, according to one biographer, the United States’ treatment of the Indians “impresses a deep stain on the American character.”¹¹⁰ Chief Justice Marshall, an educated Virginian, almost certainly knew most tribes in the eastern United States were primarily agricultural.¹¹¹ However, if Chief Justice Marshall acknowledged tribes were agricultural, they would have indisputable property rights in the land under the leading theory of property of the era.

According to John Locke’s influential Second Treatise, an individual’s application of labor to land – such as farming – creates a property right.¹¹² Under Lockean theory, merely roaming the earth in search of game does not vest the hunter with property rights in the territory he roams.¹¹³ Hence, Chief Justice Marshall likely classified Indians as “hunters” to subvert their property rights. Whatever his personal feelings about the case may have been, Chief Justice Marshall admitted he was not a neutral arbiter of justice but a judge in the “[c]ourts of the conqueror,”¹¹⁴ a fact epitomized by deciding the rights of tribes without including a single Indian party in the case.

Johnson is rightfully condemned for undermining tribal property systems and sovereignty; nevertheless, Chief Justice Marshall’s opinion does acknowledge tribes’ right to exist as sovereigns. While Johnson ranks the Indian right of occupancy, or Indian title, inferior to the United States title, Johnson clearly declares, “It has never been contended, that Indian title amounted to nothing.” Chief Justice Marshall would write years later, “[Indians’] right of occupancy is considered as sacred as the fee simple of the whites.”¹¹⁵ Given the political reality of the era, Chief Justice Marshall could have easily erased all Indigenous land rights. Instead, he chose to recognize tribal property rights under federal law. And though Johnson prohibits Indians from alienating title to their land, it does affirm tribes’ right “to use it according to their own discretion.” The opinion expressly notes that those who purchase land from Indians are “subject to their laws.”¹¹⁶ Accordingly, Johnson preserved tribes’ ability to continue as governments.

Although the opinion relies on discredited theories, few decisions in world history have cast such an enduring legacy. Chief Justice Marshall’s opinion did what no prior act of government had been able to do – prevent Americans from purchasing lands directly from Indian tribes. To be sure, Americans still violated treaties and illegally settled on Indian lands; however, Johnson v. M’Intosh made clear lawful land title could never be acquired directly from an Indian or a tribe. Contemporary readers may cringe at the opinion, but all land tenure in the United States – to this very day – finds its roots directly in Johnson v. M’Intosh.¹¹⁷

✦✦✦

Tribes had a significant impact on the structure of the Constitution and its ratification. While the Constitution vested the federal government with authority over Indian affairs, the newly formed federal government lacked the capacity to uphold its treaty obligations to tribes. Johnson v. M’Intosh solved the problem of illegal purchases. However, Johnson did not quell the rapidly increasing American population’s desire for tribal lands. A solution was needed. Many Americans believed Indian removal was the answer.

6 Indian Removal and the Cherokee Cases

As early as 1803, President Thomas Jefferson proposed moving tribes located in the eastern United States west of the Mississippi. Jefferson acknowledged “the wrongs of our people” against the Indians and articulated a desire to provide them with civilization.¹ Accordingly, Jefferson believed tribes had to assimilate into Anglo-American culture or “remove beyond the Mississipi [sic].”² These were comparatively humane policy options because Jefferson thought the United States could easily “crush” tribes.³ President James Madison shared his predecessor’s opinion of the status of tribes, and in 1817 unsuccessfully attempted to entice the Cherokee into moving west.⁴ In 1825, President James Monroe echoed Jefferson and Madison, stating removing the tribes from Georgia:

[W]ould not only shield them from impending ruin, but promote their welfare and happiness. Experience has clearly demonstrated that in their present state it is impossible to incorporate them in such masses, in any form whatever, into our system. It has also demonstrated with equal certainty that without a timely anticipation of and provision against the dangers to which they are exposed, under causes which it will be difficult, if not impossible to control, their degradation and extermination will be inevitable.⁵

President John Quincy Adams thought removal was the proper Indian policy, too; however, he firmly believed removal could only be done through treaties.⁶ Adams held this view even though he thought Indians had no property rights because he believed Indians merely roamed the land rather than improved it.⁷

By 1828, it was easily discernable that many tribes were sophisticated, sedentary farmers rather than roaming nomads. In particular, the Choctaw, Chickasaw, Creek, Seminole, and Cherokee had rapidly absorbed many aspects of Anglo-American culture. Many citizens of these tribes were thoroughly involved in the white economy; in fact, many owned black slaves like their white counterparts. Many citizens of these tribes wore the same clothing as white Americans, spoke English, and had converted to Christianity.⁸ European educations were common among tribal citizens.⁹ These tribes were far from simple hunter-gatherers and wandering nomads. Rather, they were actively involved in international politics and trade. For example, the Creek were actively playing the French, British, Spanish, and Americans off against each other. The Creek also actively traded with Jamaica and the Bahamas.¹⁰ However, the Cherokee Nation is undoubtedly the best known of the so-called Civilized Tribes.

6.1 The Cherokee and Georgia

The Cherokee historic homeland encompassed part of what is today Alabama, Georgia, Tennessee, and North Carolina.¹¹ Like many other tribes, the Cherokee had always farmed; in fact, the Cherokee origin story involves the first woman, Selu, teaching the Cherokee to grow corn.¹² However, the profits from the fur trade caused Cherokee women to focus less on farming and become more involved in other economic pursuits. As the tribe grew more integrated into the western economy, men spent less time hunting and became more involved in agriculture. Cherokee women were gradually pushed from their traditional agricultural duties¹³ into domestic work. Nevertheless, the United States’ first treaty with the Cherokee Nation, in 1785, explicitly describes Cherokee land as “hunting grounds.”¹⁴

The “hunting grounds” descriptive bore little relation to reality as the Cherokee Nation developed a robust, European-style agricultural economy by the early 1800s.¹⁵ Sequoya, a Cherokee citizen, developed a syllabary for the Cherokee language in 1821. Sequoya was illiterate, so he devised a symbol for each of the eighty-six sounds in the Cherokee language. The syllabary was easy for Cherokee speakers to learn – allegedly it could be mastered in a matter of days.¹⁶ Within a few years of the syllabary’s creation, the Cherokee literacy rate was triple that of their American neighbors.¹⁷ When the Cherokee Phoenix, the first Indigenous newspaper, was published on February 21, 1828, English and Cherokee were printed side by side.¹⁸

In addition to written language and agriculture, the Cherokee government was very “American.” The Cherokee Nation adopted a constitution in 1827, which provided for three branches of government: executive, legislative, and judicial.¹⁹ In fact, the Cherokee Nation had a Supreme Court before the state of Georgia.²⁰ The Cherokee Constitution provided for a republican government dedicated to protecting life, liberty, and property.²¹ Like its state and federal contemporaries, the Cherokee Constitution disenfranchised blacks.²² The formalization of the Cherokee Nation further solidified its position as a bona fide government and strengthened its claim to belong on its land as a sovereign nation. Furthermore, the Cherokee Constitution provided the tribe with greater capacity to resist removal efforts by showing the Cherokee Nation was a civilized government.²³

The Cherokee Constitution infuriated Georgia. Georgia adamantly believed the Cherokee had absolutely no right to claim any land within the state,²⁴ and Georgia’s position was not baseless. In the Compact of 1802, Georgia relinquished its claims to territory in Mississippi and Alabama on the condition that the United States would extinguish all tribal land rights within Georgia’s borders.²⁵ When the Compact was signed, the United States assumed the Cherokee would fade away in the near future or gladly cede its lands as American pressure mounted. Time proved the United States’ assumption wrong. By enacting a constitution, Cherokee Nation announced it intended to remain on its ancestral, treaty-guaranteed lands. Georgia urged President John Quincy Adams to censure the Cherokee Nation for implementing a constitution; however, President Adams believed the Cherokee Nation had the right to govern itself.²⁶

Georgia’s efforts to remove the Cherokee Nation boiled over in the late 1820s. The Cherokee Nation was advancing too rapidly for Georgia’s liking because the Cherokee’s increasing sophistication undermined Georgia’s argument for expelling “savages” from the state.²⁷ Indeed, opponents of the Cherokee Nation claimed the Cherokee were not even real Indians due to intermarriage and cultural evolution.²⁸ But the Cherokee were too Indian for equal rights in Georgia as the state prohibited Indians from voting in the state’s elections. Displacing the Cherokee with whites would increase Georgia’s political power and help protect slaveholding interests.²⁹ Georgia stood to benefit from Cherokee expulsion economically, too. The Cherokee Nation’s sovereignty prevented Georgia from developing railroads through treaty-guaranteed lands without the Cherokee Nation’s consent, and without a railroad, accessing inland markets was difficult.³⁰ Georgia’s champion entered the White House in 1828.

6.2 Andrew Jackson and Indian Removal

Andrew Jackson was elected president in 1828. Prior to politics, Jackson made his name in the military. In 1814, Jackson – thanks in large part to the effort of his Cherokee and Choctaw allies – ended the Creek War with his victory at the Battle of Horseshoe Bend.³¹ Jackson became a national hero when he defeated the British at the Battle of New Orleans in 1814. Even though the conflict technically ended prior to the battle, Jackson was credited with ending the war. Significantly, tribal allies played a key role in the Battle of New Orleans. For example, Choctaw troops rescued an overmatched Tennessee rifle contingent from certain demise during the New Orleans campaign. Furthermore, fear of Choctaw stealth attacks prevented the British troops from sleeping.³² As president, Jackson would show no loyalty to the Choctaw and Cherokee who had freely fought with him.

During his first message to Congress,³³ President Jackson removed any doubt about whether he would support tribes’ attempt to remain within their treaty-guaranteed lands. Jackson declared Indians were “[s]urrounded by the whites with their arts of civilization, which by destroying the resources of the savage doom him to weakness and decay …. That this fate surely awaits them if they remain within the limits of the states does not admit of a doubt.”³⁴ In the name of justice and humanity, Jackson claimed tribes should be removed to lands west of the Mississippi, and “[t]here they may be secured in the enjoyment of governments of their own choice, subject to no other control from the United States than such as may be necessary to preserve peace on the frontier and between the several tribes.”³⁵ Jackson said removal “should be voluntary.”³⁶ However, he made clear tribes could not exist as sovereigns within states. Tribal self-governance was only possible west of the Mississippi; otherwise, tribes would have to “submit to the laws of those states.”³⁷

Georgia had previously enacted resolutions decrying the Cherokee Nation’s presence in the state; however, soon after Jackson’s speech to Congress, Georgia implemented legislation transgressing the Cherokee Nation’s sovereignty. Georgia injected its civil and criminal laws within the Cherokee Nation’s borders. Furthermore, Georgia declared all laws enacted by the Cherokee Nation “to be null and void and of no effect, as if the same had never existed.”³⁸ The Georgia law also prohibited persons with Indian blood from being witnesses in cases when white people were parties to the action. Georgia would go on to outlaw the Cherokee government and forbid white persons from entering the Cherokee territory without a license from the state. And in response to gold being discovered on Cherokee land,³⁹ Georgia claimed authority over the gold mines on Cherokee land.⁴⁰

By February of 1830, Congress was debating legislation to remove tribes from the eastern United States and a bill to do so was soon introduced.⁴¹ Supporters of removal yearned for tribal land, but expelling the tribes was a flagrant violation of their treaty rights. Thus, removal proponents diminished the significance of tribal treaties on the basis that tribes lacked the sovereign capacity to enter into binding agreements. Georgia Congressman Wilson Lumpkin, a leading advocate for Indian removal,⁴² epitomized the views of removal supporters by stating:

The practice of buying Indian lands is nothing more than the substitute of humanity and benevolence, and has been resorted to in preference to the sword, as the best means for agricultural and civilized communities entering into the enjoyment of their natural and just right to the benefits of the earth, evidently designed by Him who formed it for purposes more useful than Indian hunting grounds.⁴³

Lumpkin even contended the future would look upon supporters of tribal sovereignty with disdain.⁴⁴ Not all supporters of removal were as blunt as Lumpkin; nevertheless, even more moderate removal advocates noted the treaties acknowledged tribal dependence on the United States.⁴⁵ This language of dependency was used to justify deporting tribes for their own good.

But the Indian Removal Act⁴⁶ faced staunch opposition. Those who stood against Indian removal argued the Constitution made treaties the supreme law of the land, and treaties were also sacred promises. Moreover, removal opponents claimed there was no question about tribal capacity to enter treaties because England, France, and Spain had entered treaties with tribes as had the United States and individual states. Accordingly, Representative Isaac Bates of Massachusetts asked those in favor of removal, “How, then, can we say to Indians nations, that what we called treaties, and ratified as treaties, were not in fact treaties?”⁴⁷

In addition to law, removal opponents fortified their position with moral appeals. Senator Theodore Frelinghuysen of New Jersey asked:

Do the obligations of justice change with the color of the skin? Is it one of the prerogatives of the white man, that he may disregard the dictates of moral principle, when an Indian shall be concerned? The question has ceased to be – What are our duties? An inquiry much more embarrassing is forced upon us: How shall we most plausibly, and with the least possible violence, break our faith? Sir, we repel the inquiry – we reject such an issue – and point the guardians of public honor to the broad, plain path of faithful performance, to which they are equally urged by duty and by interest.⁴⁸

Similarly, Representative George Evans of Maine castigated Lumpkin for his remarks on how posterity would look upon the defenders of Indian rights by declaring:

Before that period shall arrive, you must burn all the records of the Government – destroy the history of the country – pervert the moral sense of the community – make injustice and oppression a virtue – and breach of national faith honorable; and then, but not till then, will the visions of the gentleman assume the form of realities.⁴⁹

Those who stood against removal believed breaking the United States’ pledge to the tribes would be a perpetual stain on the United States’ national honor.⁵⁰

Indian rights were clearly the key component of the debate surrounding the Indian Removal Act; however, Indian rights were inextricably intertwined with other issues. One was state versus federal power, particularly in matters of race relations. Advocates of removal often assumed a states’ rights position and operated on the supposition that if the federal government could exert authority over Indians – colored people – within state borders, then the federal government would extend its tentacles into matters of slavery – the other big issue involving colored people.⁵¹ On the other side, removal adversaries described the Indian Removal Act as a massive expansion of executive power. Removal adversaries claimed the Indian Removal Act granted the president unchecked authority over millions of dollars, millions of acres of land, and thousands of Indian lives.⁵²

When the vote was called in the House of Representatives, one representative was in a particularly difficult position. Davy Crockett served as a representative from the State of Tennessee, but Crockett represented much more than the Volunteer State. Crockett was a westerner from humble origins. He joined General Andrew Jackson’s campaign against the Red Stick Creek in 1813.⁵³ Crockett earned acclaim for his tracking skills during the operation and later grew famous for allegedly killing 100 bears in a single winter.⁵⁴ Crockett was elected to the Tennessee legislature in 1821. His frontier lifestyle plus his oratory charm helped him get elected to represent Tennessee in the United States Congress.⁵⁵

Crockett entered Congress as a Jacksonian Democrat, which seems natural as both were from Tennessee and Crockett previously served under Jackson.⁵⁶ However, Crockett sharply broke with Jackson on Indian Removal. Crockett described the Indian Removal Act in his autobiography as “a wicked, unjust measure, and that I should go against it, let the cost to myself be what it might.”⁵⁷ On the floor of Congress, Crockett declared Indian tribes were sovereigns and “had been recognized as such from the very foundation of this government, and the United States were bound by treaty to protect them.”⁵⁸ He said, “No man could be more willing to see them remove than he was, if it could be done in a manner agreeable to themselves; but not otherwise.”⁵⁹ Crockett believed forced removal was “oppression with a vengeance.”⁶⁰ Although Crockett knew voting against the Indian Removal Act would cost him his seat, he voted against it anyway. Four years after casting his vote, Crockett wrote, “I voted against this Indian bill, and my conscience yet tells me that I gave a good honest vote, and one that I believe will not make me ashamed in the day of judgment.”⁶¹

On May 26 of 1830, the House of Representatives passed the Indian Removal Act by a vote of 102 to 97. The Act made its way through the Senate by a margin of 28 to 19 on the same day. President Jackson signed the bill into law two days later.⁶² The law authorized the president to “exchange” land with Indians,⁶³ but this implication of consent was farcical – the entire impetus for the Act was the tribes’ refusal to agree to removal. The plain text of the Indian Removal Act also extended federal protection to tribes “against all interruption or disturbance”⁶⁴ and ensured tribes’ new lands would be theirs “forever.”⁶⁵ Nevertheless, the Act assumed there was a high likelihood that the removed tribes would “become extinct.”⁶⁶

6.3 Removal in Motion

Mississippi and Alabama were invigorated by the removal debates and followed Georgia’s lead by passing laws extending state jurisdiction over lands guaranteed to the Choctaw, Chickasaw, and Creek by treaty.⁶⁷ These laws, like the Indian Removal Act, made it nearly impossible for tribes to exist as governments within these states. Given this reality, the Choctaw saw removal as their only option. Accordingly, the Choctaw drafted and delivered a removal treaty to the United States even before the Indian Removal Act was passed. The Choctaw’s proposal was declined by the United States; however, the parties agreed to a separate treaty, the Treaty of Dancing Rabbit Creek, on September 27, 1830. In this treaty, the United States guaranteed the Choctaw Nation’s land west of the Mississippi:

[T]hat no part of the land granted them shall ever be embraced in any territory or state, but the United States shall forever secure said Choctaw Nation from and against all laws, except such as from time to time, may be enacted in their own National Councils, not inconsistent with the Constitution, Treaties and Laws of the United States.⁶⁸

The Chickasaw signed a removal treaty in 1832, and the Creek signed a treaty that sealed its removal in 1832.⁶⁹ The Creek’s treaty contains a similar jurisdictional disclaimer as the Treaty of Dancing Rabbit Creek: “[N]or shall any State or Territory ever have a right to pass laws for the government of such Indians, but they shall be allowed to govern themselves, so far as may be compatible with the general jurisdiction which Congress may think proper to exercise over them.”⁷⁰

In Florida, the Seminole negotiated their removal. Pursuant to the 1832 Treaty of Payne’s Landing, a delegation of Seminoles went to Oklahoma to view a possible reservation site.⁷¹ The delegation was deceived into signing the agreement – the United States allegedly bribed the Seminole interpreters.⁷² The United States claimed a deal was struck in March of 1833, but the Seminole denied the treaty’s validity.⁷³ This precipitated a war with the Seminole, which would last from 1835 until 1842. The war cost the United States approximately $30 million,⁷⁴ a massive sum considering the federal budget was roughly $30 million per year.⁷⁵ The United States suffered several stinging defeats at the hands of the Seminoles. Desperate, the United States resorted to treachery, most infamously capturing the Seminole’s leader, Osceola, while he was invited to negotiate under a flag of truce.⁷⁶ Most of the Seminoles were removed, but a proud few remained in Florida forever unconquered.⁷⁷

6.4 Is the Cherokee Nation a “Nation”?

Though the majority of the Cherokee Nation remained in Georgia, there was also a growing push within the tribe itself to relocate – the so-called treaty faction – because the tribe’s situation was becoming increasingly dire. Georgians were marching into Cherokee land and committing crimes with impunity. President Jackson refused to enforce the Cherokee Nation’s treaty borders. Moreover, Georgia law prohibited Indians from serving as witnesses in state court proceedings when whites were parties to the case. This meant there was no chance a Georgia court would convict a white of harming an Indian. Though the Cherokee Nation did prosecute non-Indians, the tribe was overwhelmed by the volume of American treaty violators.⁷⁸

As civilized people, the Cherokee Nation did not answer Georgia’s transgressions with force. Instead, the Cherokee Nation hired attorney William Wirt. Wirt served as the United States Attorney General under Presidents James Monroe and John Quincy Adams. While Wirt was pondering procedural questions of how to assert the Cherokee Nation’s rights against Georgia, Georgia indicted Cherokee citizen George Corn Tassel for the murder of a Cherokee that took place within the Cherokee Nation’s borders. Georgia’s action clearly violated the Cherokee Nation’s sovereignty. Wirt immediately challenged Tassel’s conviction before the United States Supreme Court. Chief Justice Marshall sent a writ of error to Georgia Governor George Gilmer that arrived on December 22, 1830. Governor Gilmer took the writ to the Georgia legislature calling for the execution of Tassel in defiance of the Supreme Court. The legislature voted thirty-five to seven in favor of executing Tassel. On Christmas Eve of 1830, Tassel was hanged.⁷⁹

With tensions rising, Wirt filed a lawsuit on the Cherokee Nation’s behalf directly in the Supreme Court.⁸⁰ Chief Justice John Marshall summarized the complaint:

This bill is brought by the Cherokee nation, praying an injunction to restrain the state of Georgia from the execution of certain laws of that state, which, as is alleged, go directly to annihilate the Cherokees as a political society, and to seize, for the use of Georgia, the lands of the nation which have been assured to them by the United States in solemn treaties repeatedly made and still in force. If courts were permitted to indulge their sympathies, a case better calculated to excite them can scarcely be imagined.⁸¹

Alas, Georgia’s malfeasance was not the issue before the Court. The Court was presented with a more basic issue: Does the Cherokee Nation satisfy the jurisdictional requirements to bring a suit in the United States Supreme Court? In order for the Court to have jurisdiction, the Cherokee Nation had to qualify as a foreign nation.

The Cherokee Nation had a powerful argument in support of its position. The Cherokee Nation contended it had been a self-governing society since time immemorial. The Cherokee Nation had its own legal system, its own language, its own land, its own customs. The Cherokee Nation asserted it had entered treaties with Britain as well as the United States, and treaties are agreements between nations. Furthermore, individual Cherokee were not citizens of the United States. Consequently, the Cherokee Nation – which was composed of people who were not United States citizens – had to be a foreign nation.

Chief Justice Marshall described the Cherokee Nation’s argument as “imposing.”⁸² Georgia, on the other hand, was far less vigorous; in fact, Georgia refused to dignify the Cherokee Nation by even showing up in court. Ordinarily, an “imposing” argument defeats no argument in courts of justice, but this was an Indian law case with huge implications for the United States. Thus, the Court divided into four separate opinions.

Chief Justice Marshall’s opinion provided a middle ground between the dissent and concurrences. Rather than foreign nations, Chief Justice Marshall determined the Cherokee Nation – and by implication every other tribe – was a “domestic dependent nation” because “they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian.”⁸³ Chief Justice Marshall posited the authors of the Constitution did not have Indian tribes in mind when penning “foreign nations” in the Constitution’s jurisdictional grant to the Supreme Court because Indian tribes’ “appeal was to the tomahawk.”⁸⁴ He further supported this position with the Constitution’s Commerce Clause, which mentions both “foreign nations” and “the Indian tribes.” Had the Framers of the Constitution considered tribes “foreign nations,” adding “Indian tribes” at the end of the Commerce Clause would have been superfluous. This prevented him deeming the Cherokee a foreign nation; therefore, the case was dismissed for lack of jurisdiction.

Justices Baldwin and Johnson concurred in the judgment, averring the Cherokee Nation was not a nation at all. Justice Johnson’s opinion emphasized Indian inferiority claiming, “I cannot but think that there are strong reasons for doubting the applicability of the epithet state, to a people so low in the grade of organized society as our Indian tribes most generally are.”⁸⁵ In support of the Indian tribes’ low grade, he described the Indians as “a race of hunters, connected in society by scarcely a semblance of organic government.”⁸⁶ Justice Johnson asked, “Must every petty kraal of Indians, designating themselves a tribe or nation, and having a few hundred acres of land to hunt on exclusively, be recognized as a state?”⁸⁷ He answered his own question by declaring:

But I think it very clear that the constitution neither speaks of them as states or foreign states, but as just what they were, Indian tribes; an anomaly unknown to the books that treat of states, and which the law of nations would regard as nothing more than wandering hordes, held together only by ties of blood and habit, and having neither laws or government, beyond what is required in a savage state.⁸⁸

Under no circumstances could Justice Johnson consider tribes the equal of nations.

Justice Baldwin focused primarily on the legal framework governing tribes, relying heavily on the ideas in Johnson v. M’Intosh denying tribes full ownership of their land. Although Justice Baldwin ceded, “Indians have rights of occupancy to their lands as sacred as the fee-simple, absolute title of the whites,”⁸⁹ the United States asserted ultimate control over the disposition of tribal lands. Similarly, he noted the United States’ authority over Indian trade. Stereotypes embedded in the law also factored into Justice Baldwin’s concurrence; indeed, he pointed out:

In this examination it will be found that different words have been applied to them in treaties and resolutions of congress; nations, tribes, hordes, savages, chiefs, sachems and warriors of the Cherokees for instance, or the Cherokee nation. I shall not stop to inquire into the effect which a name or title can give to a resolve of congress, a treaty or convention with the Indians, but into the substance of the thing done, and the subject matter acted on: believing it requires no reasoning to prove that the omission of the words prince, state, sovereignty or nation, cannot divest a contracting party of these national attributes, which are inherent in sovereign power pre and self existing, or confer them by their use, where all the substantial requisites of sovereignty are wanting.⁹⁰

Justice Baldwin further observed tribal lands were typically described as mere “hunting grounds.” Based on the language used to describe tribes and their rights, Justice Baldwin rejected denominating tribes as foreign nations.

Justice Thompson penned a dissent joined by Justice Story. The dissent set out the established international law: “Every nation that governs itself, under what form soever, without any dependence on a foreign power, is a sovereign state. Its rights are naturally the same as those of any other state.”⁹¹ Justice Thompson explained even if a nation be tributary or feudatory, it remains sovereign so long as it continues to govern itself. Therefore, Justice Thompson concluded:

Testing the character and condition of the Cherokee Indians by these rules, it is not perceived how it is possible to escape the conclusion, that they form a sovereign state … And this has been the light in which they have, until recently, been considered from the earliest settlement of the country by the white people.⁹²

Justice Thompson elucidated that the United States thought the Cherokee were sovereign enough to form treaties with, “[a]nd if they, as a nation, are competent to make a treaty or contract, it would seem to me to be a strange inconsistency to deny to them the right and the power to enforce such a contract.”⁹³

Immediately after the opinion, the Cherokee Nation continued its struggle for sovereignty and to have the United States honor its treaty rights. The chief of the Cherokee Nation, John Ross, issued a public statement emphasizing a majority of the Court acknowledged the Cherokee Nation was a sovereign. The Cherokee Nation’s public appeal received a lucky break. Soon after the Court’s opinion, the Supreme Court reporter, Richard Peters, published a 286-page volume on the case along with related legal documents, including the arguments of the Cherokee Nation’s attorneys, treaties, and Georgia’s anti-Indian laws. The dissenting Justices and Chief Justice John Marshall were pleased by the volume; in fact, Justice Story believed the publication was important to the public’s morality, stating:

The publication will do a great deal of good – the subject unites the moral sense of all New England – It comes home to the religious feelings of our people. It touches their sensibilities, and sinks to the very bottom of their sense of Justice – Depend on it there is a depth of degradation in our national conduct, which will irresistibly lead to better things.⁹⁴

6.5 The Laws of Georgia Can Have No Force

The Cherokee Nation’s resistance to removal had long been aided by white missionaries. Pursuant to Georgia law, white people residing within the borders of the Cherokee Nation were required to obtain a license from the state before doing so. Georgia arrested several white missionaries for violating this prohibition. The Georgia court released the missionaries to avoid an appeal to the Supreme Court, but upon their release, the missionaries returned to the Cherokee Nation sans license. Georgia arrested them again. This time, they were sentenced to four years’ hard labor. In another attempt to avoid appeal, the missionaries were offered pardons. All but Samuel Worcester and Elizur Butler accepted. They chose to remain incarcerated to provide the Cherokee Nation with another day in court.⁹⁵

As the case made its way into the Supreme Court, Georgia’s governor and legislature vowed to disregard an opinion supporting the Cherokee Nation. Likewise, the Georgia court refused to comply with the Supreme Court’s request for the records of the case. Georgia, as it did a year earlier in Cherokee Nation v. Georgia, refused to argue its case before the Supreme Court. Failing to argue is usually a bad litigation tactic, but no argument had previously prevailed in a nearly identical case. Plus, it was widely believed that President Jackson would not enforce an opinion against Georgia.⁹⁶

Georgia’s nonappearance did not work this time. First of all, Worcester and Butler were white men from Vermont. The Constitution grants the Supreme Court the power to adjudicate controversies between a state and citizens of different states, so there was no question of the Court’s jurisdiction as the case was between Vermont citizens and Georgia.⁹⁷ With jurisdiction, Chief Justice Marshall chronicled the history of the Americas and acknowledged its original inhabitants were “a distinct people, divided into separate nations, independent of each other and of the rest of the world, having institutions of their own, and governing themselves by their own laws.”⁹⁸ Accordingly, Chief Justice Marshall conceded it was difficult to comprehend how the Doctrine of Discovery could dispossess the tribes of their land, describing it is an “extravagant and absurd idea.”⁹⁹ Despite calling into question the Doctrine of Discovery and admitting tribes had always been self-governing, Chief Justice Marshall justified Euro-American superiority over tribes because they are “a people who had made small progress in agriculture or manufactures, and whose general employment was war, hunting, and fishing.”¹⁰⁰

Indian tribes may have been simple, but Chief Justice Marshall admitted “they might be formidable enemies, or effective friends.”¹⁰¹ Hence, Chief Justice Marshall noted the European powers vied to obtain tribal alliances. Prevailing policy left tribes free to govern their internal affairs, and Chief Justice Marshall stated the American colonies continued this policy. Indeed, he acknowledged, “The early journals of congress exhibit the most anxious desire to conciliate the Indian nations.”¹⁰² Furthermore, the treaty language declaring the Cherokee Nation is under the protection of the United States did not divest the Cherokee Nation of its sovereignty because, Chief Justice Marshall explained, standard international law permitted nations to seek protection from another nation while retaining their ability to exist as a self-governing entity.

Toward the end of his opinion, Chief Justice Marshall penned what may be the most famous passage in all of Indian law:

The Cherokee nation, then, is a distinct community occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of congress. The whole intercourse between the United States and this nation, is, by our constitution and laws, vested in the government of the United States.¹⁰³

Therefore, Chief Justice Marshall described Georgia’s prosecution of the missionaries on Cherokee soil “as being repugnant to the constitution, treaties, and laws of the United States, and ought, therefore, to be reversed and annulled.”¹⁰⁴

The opinion was not unanimous. Justice McLean concurred. He agreed Georgia was in the wrong, but he did not believe the Cherokee Nation had the right to exist perpetually on their treaty-guaranteed land. Justice McLean believed, “But, a sound national policy does require that the Indian tribes within our states should exchange their territories, upon equitable principles, or, eventually, consent to become amalgamated in our political communities.”¹⁰⁵ Justice McLean described Indians as “children of the wilderness,”¹⁰⁶ who were doomed to vanish as civilization expanded. Justice Baldwin dissented on procedural grounds; however, his opinion was allegedly not delivered to the court reporter. Justice Johnson did not participate in the case due to illness. He likely would have dissented, consistent with his opinion in Cherokee Nation v. Georgia a year earlier.¹⁰⁷

The Cherokee Nation celebrated the decision, but few expected it to be enforced. Georgia made no pretense it would abide by the Court’s ruling; in fact, the Georgia courts refused to even enter the Supreme Court’s order into the record. Despite being charged with enforcing the Constitution, President Jackson described the Court’s opinion as “still born” and is rumored to have said, “Well: John Marshall has made his decision; now let him enforce it!”¹⁰⁸ Accordingly, Worcester and Butler remained in jail for ten months after the Supreme Court ruled in their favor. The pair and their allies eventually gave up hope after Jackson’s landslide reelection in 1832. Worcester and Butler accepted pardons and were released from prison.¹⁰⁹

As time wore on, the reality was becoming increasingly clear. Georgia would not honor the high court’s decree, and the federal government was not going to uphold its treaties with the Cherokee Nation. Thus, a small faction of the Cherokee Nation under the leadership of Major Ridge entered a removal treaty with the United States in December of 1835. The United States knew the treaty was not signed by the legitimate Cherokee Nation government; nonetheless, the Senate ratified the treaty by a margin of one vote in 1836.¹¹⁰ The ratified Treaty of New Echota had a mandatory migration date of May 23, 1838.¹¹¹

Most Cherokee held firm and refused to move. Chief Ross penned a letter to Congress protesting the Treaty of New Echota as a fraudulent document. Ross’ letter called out the hypocrisy of the United States ratifying the illegitimate treaty exclaiming, “[O]ur cause is your own; it is the cause of liberty and of justice; it is based upon your own principles, which we have learned from yourselves.”¹¹² The letter was signed by 15,665 of the approximately 16,000 Cherokee Nation citizens.¹¹³ Ironically, the Cherokee Nation signed more than a dozen treaties with the United States,¹¹⁴ and the only one the United States enforced was a sham.

The United States sent General Winfield Scott to the Cherokee Nation on May 10, 1838, to make pellucid the United States’ intent to enforce the Treaty of New Echota.¹¹⁵ General Scott returned with 7,000 troops on May 26. He forced the Cherokee citizens into stockades and internment camps.¹¹⁶ Conditions on their forced march to Oklahoma were harsh. Approximately a quarter of the Cherokee Nation died along what is remembered as the Trail of Tears.¹¹⁷ Hundreds of other tribes faced similar fates.

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Hungry for land, Americans ignored the treaties securing tribal territories. The United States hoped tribes would surrender their treaty lands and move west. But tribes held firm, and many thrived – removing any doubt about Indians’ capacity to function in “civilized society.” Alas, President Jackson changed federal Indian policy. Previous presidents were interested in tribal consent; however, Jackson was only concerned with claiming tribal lands. The Indian Removal Act enabled him to accomplish his goal. States emboldened by the Jackson policies extended their laws over tribes. Although the Supreme Court ruled states lacked authority over tribal lands and the people upon them, President Jackson flouted his constitutional duty and failed to enforce the law. Consequently, tribes in the east had few options – essentially hide or move onto reservations out west.

7 Reservations and Federal Power

The Indian Removal Act forced eastern tribes onto reservations west of the Mississippi. On reservations, tribes were guaranteed the right to self-govern. The United States was supposed to be minimally involved in tribal government operation; indeed, President Jackson explicitly stated the United States would only be involved to the extent necessary to keep peace on the frontier.¹ Furthermore, treaties were the primary mechanism by which tribes were placed upon reservations, and treaties guaranteed tribal lands would be forever secured against white encroachment.² Treaties also contained provisions guaranteeing healthcare, education, annuities, and more. Tribal leaders fought for these provisions to ensure their citizens would be free and independent in perpetuity.³ However, the United States failed to honor its obligations to tribes, and federal power over tribes drastically increased on reservations.

7.1 Fading Treaties

Tribal issues became a lower national priority in the years following the Indian Removal Act. From 1846 to 1848, the United States was at war with Mexico. The United States prevailed and acquired territory that would become several states, including California.⁴ Coincidentally, gold was discovered in California just as Mexico ceded it, precipitating the gold rush of 1849.⁵ Expansion into the newly acquired western lands required a railroad and political organization. Discussion over future railroad routes quickly turned into a debate about slavery. The eventual temporary fix was the Kansas–Nebraska Act of 1854, which allowed newly organized territories to answer the slavery question by popular vote.⁶ The issues of slavery and American expansion placed Indian rights at the bottom of American priorities. In 1862, Secretary of War Edwin Stanton responded to a staffer about an Episcopalian bishop’s concerns for Indians by stating, “What does the Bishop want? If he came here to tell us that our Indian system is a sink of inequity, tell him we all know it.”⁷ Indian issues remained a low priority until after the Civil War.

Following the Civil War, Indian policy underwent a drastic change. European nations and the United States had always conducted Indian relations through treaties – agreements between nations. The United States passed a statute forbidding further treaties between the United States and Indian tribes in 1871.⁸ Perhaps the largest driver of this policy change was politics between the Senate and the House of Representatives. Treaties are the sole prerogative of the Senate and the president; however, the House of Representatives was in charge of levying funds to pay for treaty promises. Thus, the House was responsible for the cost though it had no say in the terms of treaties. The House solved this problem by tacking a rider prohibiting further treaties between the United States and Indian tribes onto a bill that eventually became law.

The House was able to end treaty making because the federal government had grown much stronger and the political dynamics had changed. As President Washington noted, treaties were a more efficient means of acquiring tribal lands than war because tribes were on a similar military level to the United States. However, the United States’ military capacity was significantly greater than the tribes following the Civil War. The United States now possessed vast numerical superiority over tribes, a standing army equipped with Gatling guns and better small arms, plus improved supply lines thanks to railroads. Consequently, the cost of war with the tribes fell significantly, so negotiating treaties with tribes was no longer necessary.⁹ In addition to military capacity, the Civil War was also about unifying the United States under a single sovereign – Abraham Lincoln’s famous “A house divided against itself cannot stand.”¹⁰ Tribes’ existence as governments capable of entering treaties with the United States conflicted with this principle.

While Northerners and Southerners retained many differences after the Civil War, one thing they agreed on was Manifest Destiny – the inevitable westward expansion of the United States.¹¹ Americans knew numerous sovereign Indian nations stood in the way. The United States’ solution was to force all tribes onto reservations, destroy their culture and governance institutions, then open their lands to white settlement.

7.2 The Last of the Indian Wars

Seizing lands west of the Mississippi would be no easy feat. Many tribes on the Great Plains possessed warrior cultures. Thanks to their newly evolved horse cultures, they were elite equestrians. Their skill on horseback made them among the finest cavalry forces to ever grace the earth. Man for man, most tribes’ warriors were superior to United States troops. However, a vastly larger population and better technology ultimately gave the United States the military advantage. Even still, the United States struggled to subdue the Plains tribes. The United States may have been able to prevail by direct military assault but doing so would have been costly. Thus, the United States’ preferred tactic against tribes was the same tactic it used during the Revolutionary War – destroy their food. As Secretary of the Interior Columbus Delano noted, “The civilization of the Indian is impossible while the buffalo remains on the plains.”¹² Removing the buffalo became the United States’ primary task, and General William Tecumseh Sherman was the man for the job.

During the Civil War, General Sherman’s famed march to the sea ransacked Confederate towns in hopes of demoralizing the population.¹³ General Sherman had no qualms about employing this strategy against Indian tribes, but American troops were not the primary source of buffalo slaughter. Instead, General Sherman used the army to protect private hunters¹⁴ and supply them with bullets.¹⁵ Hunters were happy to pursue buffalo because demand for their hides soared when a new method of tanning was developed in 1871.¹⁶ Moreover, advances in firearm technology enabled hunters to drop a buffalo from nearly a mile away.¹⁷ Not comprehending the sudden collapse of their fellow buffalo, the herd would remain in place while the marksman fired away.¹⁸ This meant a single hunter could slay 100 buffalo without even having to reposition his rifle.¹⁹ Hunters usually removed the hide and left the meat to rot because transportation costs were prohibitive.²⁰ In addition to hunters, train passengers were encouraged to shoot buffalo from their seats for recreation.²¹ An estimated 60 million buffalo roamed the plains in 1860.²² By 1893, fewer than 400 buffalo remained.²³ American military leaders claimed buffalo hunters “did more to defeat the Indian nations in a few years than soldiers did in 50.”²⁴

The unmitigated slaughter of buffalo troubled many Americans. The Texas legislature attempted to protect buffalo, but General Philip Sheridan staunchly opposed the legislation. He asserted:

These men have done more in the last two years and will do more in the next year to settle the vexed Indian question than the entire regular army has done in the last forty years. They are destroying the Indians’ commissary. And it is a well-known fact that an army losing its base of supplies is placed at a great disadvantage. Send them powder and lead, if you will, but for lasting peace, let them kill, skin, and sell until the buffaloes are exterminated. Then your prairies can be covered with speckled cattle.²⁵

Similarly, when federal legislation to protect the buffalo reached the desk of President Ulysses S. Grant – a former army general – he vetoed the bill.²⁶

Buffalo were not the only animal the United States exterminated to quell tribal resistance. Colonel Kit Carson’s 1863 campaign against the Navajo consisted less of armed conflict and more of sabotaging the Navajo food supplies.²⁷ Carson had his men burn Navajo peach orchards, uproot melon patches,²⁸ ravage their cornfields, and poison their water.²⁹ Carson’s troops slaughtered thousands of Navajo domestic sheep and left the meat to rot.³⁰ He also destroyed Navajo horses, cattle, and mules.³¹ Without food, Navajo were forced to surrender and endure a death march to Bosque Redondo – a reservation that was little better than an internment camp.³²

Similarly, the Red River War between the allied Kiowa, Comanche, Apache, Cheyenne, and Arapaho and the United States was not decided by human casualties. In fact, the final battle at Palo Duro Canyon resulted in the death of only three Indians, but the United States was able to destroy the tribes’ winter food supply. More importantly, the United States captured more than 1,400 Indian horses – it killed 1,000 in a single day.³³ The tons of decaying horse flesh supposedly emitted a stench so putrid that it could be smelled miles away for more than a month after the massacre.³⁴

7.3 Reservation Life

Reservation-bound Indians were subject to the unfettered authority of white Indian agents and superintendents. Reservation agents were paid less than $2,000 per year during the middle of the nineteenth century, a very low wage; in fact, a store clerk was paid more.³⁵ Charles Posten, governor of the Arizona territory and ex officio superintendent of the Indian service, wrote in 1864, “It is impossible to secure the services of a faithful and competent superintendent for the sum of two thousand dollars per annum in currency; that amount will not support a superintendent in any respectable manner in the Territory, and he must needs resort to some other means of support, to the derogation of the government service.”³⁶ Because salaries were low, Indian agents engaged in graft. Indian agents had sole authority to issue licenses to the non-Indians wishing to do business with the agent’s Indian wards. Thus, white merchants bribed Indian agents to acquire monopolies over the captive reservation Indians. Exacerbating the problems caused by monopoly, a white merchant merely had to allege an Indian owed them money and the merchant was paid from tribal treaty funds – no questions asked.³⁷ Indians were essentially robbed of their treaty annuity funds through this corrupt federal system.³⁸

In addition to control of Indian access to annuities, Indian agents controlled access to food. The ability to determine whether Indians ate granted Indian agents de facto dictatorial power over their Indian wards.³⁹ For example, the 1850 Annual Report of the Commissioner of Indian Affairs stated, “[I]t is indispensably necessary that they be placed in positions where they can be controlled, and finally compelled by stern necessity to resort to agricultural labor or starve.”⁴⁰ Indians desperate for sustenance were in no position to resist demands to cede more of their lands to the United States.⁴¹ For example, the Indian Appropriations Act of 1876 required the reservation-bound Sioux to “sell” the Black Hills to the United States or be denied the rations guaranteed them in the 1868 Treaty of Fort Laramie.⁴² The threat of starvation was common on reservations – a quarter of the Blackfeet Reservation died of hunger in 1884.⁴³ Conditions were so dire that Indian women would barter sex to feed their starving children.⁴⁴ The federal government’s de facto power over reservation Indians was soon granted a legal basis by the Supreme Court.

7.4 Indian Blood and Tribal Citizenship

Within months of their forced relocation, the Cherokee Nation had ratified a new constitution and was rebuilding its institutions. Pursuant to their traditional ways, the Cherokee did not view being Cherokee as a matter of blood. Instead, the Cherokee saw themselves as a nation. This meant people with no Cherokee ancestry could acquire Cherokee citizenship through adopting Cherokee ways. For example, Sam Houston was a citizen of the Cherokee Nation. Though he lacked Indian blood, he moved into the Cherokee territory, learned the language, and accepted Cherokee laws. Hence, the Cherokee granted Houston citizenship.⁴⁵ Many other tribes had similar naturalization processes.⁴⁶

One of the white men to acquire Cherokee Nation citizenship was William Rogers. Rogers married a Cherokee woman and walked the Trail of Tears alongside his wife.⁴⁷ Even after his wife’s death in 1843, Rogers remained in the Cherokee Nation.⁴⁸ For unknown reasons, Rogers murdered Jacob Nicholson, another white man who acquired Cherokee citizenship, in 1844.⁴⁹ Rogers fled the Cherokee Nation and managed to elude the tribal authorities for seven months.⁵⁰ Eventually, he was arrested by the Cherokee Nation’s sheriff. Although the Cherokee Nation had its own court system and prosecuted criminals, it did not have a jail. Hence, the sheriff transferred Rogers to Fort Gibson.⁵¹ The Cherokee Nation expected Rogers to be returned for trial, but the federal government decided to commence prosecution because Rogers and his victim were white men.⁵²

Rogers had an interesting defense to the federal prosecution. Although he was white, Rogers was a Cherokee. Nicholson, the victim, was also a naturalized Cherokee. This meant the crime involved only Cherokee, and the Cherokee are Indians. Federal law did not authorize the United States to e–prosecute crimes between reservation Indians.⁵³ Thus, Rogers argued the United States lacked jurisdiction over the case.⁵⁴ Rogers’ claim confounded the circuit court, so it sought guidance from the Supreme Court.⁵⁵

In 1846, the Supreme Court issued a unanimous opinion, United States. v. Rogers, in favor of the United States. But before addressing the merits of the case, the Court first noted tribes lost their full sovereignty when the first Europeans set foot on the continent, and it was too late to question the Doctrine of Discovery. The Court noted the United States embraced the Doctrine of Discovery but claimed:

[F]rom the very moment the general government came into existence to this time, it has exercised its power over this unfortunate race in the spirit of humanity and justice, and has endeavoured by every means in its power to enlighten their minds and increase their comforts, and to save them if possible from the consequences of their own vices …. It is our duty to expound and execute the law as we find it, and we think it too firmly and clearly established to admit of dispute, that the Indian tribes residing within the territorial limits of the United States are subject to their authority, and where the country occupied by them is not within the limits of one of the States, Congress may by law punish any offence committed there, no matter whether the offender be a white man or an Indian.⁵⁶

According to the Court, it did not matter what the Cherokee Nation thought of Rogers because his skin was white. The Court believed when Congress wrote “Indians” in 1834 “[i]t does not speak of members of a tribe, but of the race generally, – of the family of Indians.”⁵⁷ In support of this interpretation, the Court proffered the whites who acquire tribal citizenship “will generally be found the most mischievous and dangerous inhabitants of the Indian country.”⁵⁸

The opinion’s emphasis on race over tribal citizenship should not be surprising. The case was authored by Chief Justice Roger Taney. Chief Justice Taney is infamous in the annals of Supreme Court history for writing the Court’s opinion in Dred Scott v. Sandford,⁵⁹ which declared:

[Blacks] had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.⁶⁰

Interestingly, in Dred Scott, Chief Justice Taney distinguished the legal status of Indians and Blacks. Chief Justice Taney described Indians as “free and independent people, associated together in nations or tribes, and governed by their own laws.”⁶¹ But in Rogers, Chief Justice Taney reduced Indians to a racial group.

The outcome of his case did not impact Rogers because he died while the case was pending. His death should have ended proceeding; however, the Court continued the case because it knew something more was at stake. Rogers – for the first time – enabled the federal government to meddle in intra-tribal affairs. Now, the Cherokee Nation could no longer independently govern its citizens, on its lands, by its laws. For example, a few years after Rogers, the Cherokee Nation complained to the United States about federal prosecutions of its Black and white citizens as “unjust, it is an incompatible power – it is harassment – it is oppressive – and in its process it is abolishing the Cherokee government.”⁶² Thus, Rogers empowered the federal government to usurp tribal self-government. Following Rogers, the federal government began to interfere more aggressively in tribal affairs, including forcing Indian children into “white” schools and criminalizing tribal religion.⁶³

By the 1880s, the United States amplified its efforts to undermine tribal law. The Department of Interior unsuccessfully lobbied Congress to extend federal criminal law over reservation crimes involving only Indians. The Interior Department believed Indians would never become civilized so long as their Indigenous justice systems remained intact. It, along with many members of Congress and the general public, thought tribes were lawless and tribal justice was purely a matter of revenge; that is, an aggrieved individual or their family was responsible for getting even with the wrongdoer. While an eye for an eye was custom in some tribes, many tribes preferred restorative justice to retribution.⁶⁴ But individual tribal distinctions did not prevent the United States from wielding stereotypes to expand federal power over all tribes. A murder on the Great Sioux Reservation in 1881⁶⁵ provided the Department of Interior with an opportunity to accomplish its goal.

7.5 Spotted Tail, Crow Dog, and Tribal Law

The Sioux valiantly resisted United States’ colonization for decades; in fact, the Sioux defeated the United States in multiple military engagements, including the Battle of Little Bighorn. Federally sanctioned buffalo slaughter eventually forced the Sioux to accept reservation life. Reservation life brought cultural turmoil. The Sioux were a free and self-reliant people since time immemorial. On the reservation, their sustenance was whatever paltry rations the federal government supplied. Moreover, their governance structure was built around the buffalo hunt which was no longer feasible. They were now forced to farm and adopt Christianity. Political factions emerged among the Sioux. Spotted Tail, a Brûlé Sioux, adroitly navigated the situation and was appointed chief of the Sioux by the United States.⁶⁶

Spotted Tail was a complex figure. His family was not among the Sioux elite,⁶⁷ and he was orphaned at an early age.⁶⁸ But by his early twenties, merit in combat earned Spotted Tail a tribal leadership position.⁶⁹ Spotted Tail led numerous successful raids against the Americans crossing Sioux lands. Spotted Tail’s raids were so devastating that the United States appealed to the Sioux to cease the raids. The Sioux government summoned Spotted Tail to address the matter. To prevent further conflict between the Sioux and the United States, Spotted Tail freely turned himself over to the American military.⁷⁰ He expected to be executed.⁷¹

However, he was not. In prison, Spotted Tail learned to speak and write English.⁷² Being trapped in a military prison also provided Spotted Tail with the opportunity to study the United States. His observations led him to believe resisting the United States was futile due to its immense numerical and weapons advantages over the Sioux. Accordingly, he saw diplomacy as his people’s best chance for survival.⁷³ This realization led him to ingratiate himself with the Americans. For example, he helped the United States track down horse thieves from rival tribes.⁷⁴ When Spotted Tail was released, he received a hero’s welcome from the Sioux.⁷⁵

Spotted Tail assumed a leadership position upon his return but was between two worlds.⁷⁶ He wanted the best for the Sioux, but his perception of what was best did not match that of his contemporaries.⁷⁷ Spotted Tail regularly communicated with whites. He even turned over two Sioux to the United States to be hanged. Sioux as well as other Indians grew suspicious of Spotted Tail and began calling him “the white man’s friend.”⁷⁸ Spotted Tail negotiated a treaty with the United States while the great Sioux warrior and medicine man, Sitting Bull, refused to enter discussion with the United States.⁷⁹ After signing the 1868 Treaty of Fort Laramie, Spotted Tail urged the young men in his band to join the United States Army.⁸⁰

Spotted Tail’s efforts were responsible for the United States naming him chief of the Sioux.⁸¹ This title gave Spotted Tail tremendous power over the reservation for he was in charge of rations; that is, Spotted Tail determined whether a person ate.⁸² Spotted Tail performed noble acts as chief, such as fighting to prevent the Sioux from being removed to Oklahoma.⁸³ Nevertheless, Spotted Tail was having an affair with another Sioux man’s wife.⁸⁴ The more traditional Sioux were not pleased with Spotted Tail’s behavior. These tensions ultimately led Crow Dog, a traditional Sioux, to kill Spotted Tail.

The murder was resolved pursuant to Sioux law: The family of the deceased and the perpetrator met to negotiate a settlement. It was agreed that $600, eight horses, and a blanket would compensate Spotted Tail’s family.⁸⁵ Significantly, the payment was not “blood money.”⁸⁶ Rather, the compensation was a peace offering intended to restore social relations.⁸⁷ Offerees sometimes accepted the offer. Other times, offerees granted forgiveness but refused to accept payment as a show of “both their pride and their wealth.”⁸⁸ Once the settlement was concluded, the tribe considered the case closed.⁸⁹

Nevertheless, Americans were outraged by Sioux justice – the federal government’s favorite Indian was killed and his murderer walked free.⁹⁰ Thus, the United States Attorney moved to prosecute Crow Dog for murder in the territorial court of Deadwood, South Dakota. Crow Dog was convicted and sentenced to hang by an all-white jury. Prior to his execution, Crow Dog was permitted to visit the reservation on the condition that he return to be hanged. A severe blizzard ensued days before Crow Dog was supposed to return. No one thought a person would freely travel over several hundred miles through a snowstorm to be hanged, but Crow Dog did. Public support turned Crow Dog’s way. After all, people who keep their word in the face of execution must possess a strong sense of honor. Crow Dog’s act inspired local attorneys to volunteer assistance in his appeal.⁹¹ Congress was also interested in the issue – whether the United States could assert criminal jurisdiction over reservation crimes involving only Indians – and appropriated money to assist Crow Dog’s appeal.⁹²

The Supreme Court heard Crow Dog’s appeal on November 26, 1883. Crow Dog’s guilt was not before the Court. Instead, the Court was solely tasked with determining whether the United States possessed the power to prosecute an Indian who harmed another Indian on a reservation. The Court ruled the United States lacked jurisdiction over Crow Dog. Under the existing statutes, federal criminal law governed crimes between Indians and non-Indians but made no mention of crimes with only Indian parties. Additionally, federal law exempted Indians from prosecution who had been previously punished by the tribe.⁹³ The Court determined the Sioux treaty did not provide the United States with jurisdiction either.⁹⁴

Aside from the plain text of the law, the Court explained it would be unfair to try Crow Dog in federal court because:

It is a case where, against an express exception in the law itself, that law, by argument and inference only, is sought to be extended over aliens and strangers; over the members of a community separated by race, by tradition, by the instincts of a free though savage life, from the authority and power which seeks to impose upon them the restraints of an external and unknown code, and to subject them to the responsibilities of civil conduct, according to rules and penalties of which they could have no previous warning; which judges them by a standard made by others and not for them, which takes no account of the conditions which should except them from its exactions, and makes no allowance for their inability to understand it. It tries them, not by their peers, nor by the customs of their people, nor the law of their land, but by superiors of a different race, according to the law of a social state of which they have an imperfect conception, and which is opposed to the traditions of their history, to the habits of their lives, to the strongest prejudices of their savage nature; one which measures the red man’s revenge by the maxims of the white man’s morality.⁹⁵

Crow Dog’s presumptive inability to understand the “white man’s morality” meant he could not be hanged by the United States.

Although the Supreme Court’s decision describes whites as racially superior to Indians, the Court affirmed the right of the Sioux to self-govern. Beneath the layers of nineteenth-century prejudice, the Court’s decision was actually a victory for tribal governments. The Court acknowledged that permitting the United States to punish crimes between Indians – by blood – would infringe upon the right of the Sioux to exist as a separate people. Federal prosecution would be imposing “the white man’s morality” upon the Sioux in violation of the tribe’s treaty-guaranteed right to exist as an independent government.

7.6 Criminal Law, Assimilation, and Plenary Power

The federal government immediately moved to subvert the Court’s decision in Ex parte Crow Dog. The Department of the Interior, at the behest of Secretary Henry Teller, answered Crow Dog by establishing Courts of Indian Offenses in 1883 to punish Indians for performing traditional activities and expedite assimilation into the white world.⁹⁶ As a federal district court in 1888 explained, Courts of Indian Offenses were “educational and disciplinary instrumentalities, by which the government of the United States [was] endeavoring to improve and elevate the condition of these dependent tribes to whom it sustains the relation of guardian.”⁹⁷ Courts of Indian Offenses were never authorized by Congress;⁹⁸ however, Congress responded to Crow Dog by passing the Major Crimes Act (MCA) two years later.⁹⁹ The MCA authorized the United States to punish murder and six other “major” crimes. The MCA was based upon the premise that tribal laws were incapable of punishing serious offenses.

As the MCA made its way through Congress, chaos was besieging the tribes located within the boundaries of California. Tribes in California faced turmoil since the discovery of gold in 1849 brought swarms of determined, and often unsavory, Americans to the area.¹⁰⁰ California gained statehood in 1850 and ridding the territory of Indians quickly became the state’s official policy. California paid $0.25 per Indian scalp in 1856 and increased the sum to $5 per scalp in 1860.¹⁰¹ In addition to paying bounties, California reimbursed the expenses of “Indian hunters.”¹⁰² Newspapers in California frequently ran stories advocating for Indian extermination, such as this 1865 piece from the Chico Weekly Courant: “They are of no benefit to themselves or mankind …. If necessary let there be a crusade, and every man that can carry and shoot a gun turn out and hunt the red devils to their holes and there bury them, leaving not a root or branch of them remaining.”¹⁰³ Many of the California Indians who escaped slaughter were subjected to slavery under the state’s Act for the Government and Protection of Indians, which was not fully repealed until 1937.¹⁰⁴ Disease, murder, and slavery reduced California’s Indian population by 95 percent between 1850 and 1900.¹⁰⁵ Tribes within California were losing their lands and being forced onto reservations.

The Hoopa Valley Reservation was established in northwestern California in 1864.¹⁰⁶ Though designed for the Hoopa, the reservation also encompassed traditional Yurok tribal lands.¹⁰⁷ Several other tribes were displaced onto the Hoopa Valley Reservation as well.¹⁰⁸ On the reservation, tribes were subjected to intense federal pressures to adopt white ways, but the tribes held fast to their customs and laws. As Hoopa Valley Indian agent Charles Porter¹⁰⁹ observed, the Hoopa would not yield to Christianity or United States law. Porter recognized tribes continued to govern themselves, claiming, “[T]he only men among themselves that the Hupa would respect … [are] the elders and traditional leaders.”¹¹⁰ Other tribes similarly held on to their traditional ways and forms of governance.¹¹¹

Though many on the Hoopa Valley Reservation were traditional, Kagama was a Yurok who resided on the Hoopa Valley Reservation that had largely assimilated into the white world.¹¹² Agent Porter thought more highly of Kagama than the other Indians on the reservation, declaring Kagama “endeavors to live like a white man, and comes nearer to being one – and a good one – in character and conduct than any Indian I have ever met.”¹¹³ Kagama desired a tract of reservation land owned by Iyouse, another Yurok,¹¹⁴ under Yurok law.¹¹⁵ Kagama had no right to the land he desired under Yurok law, so he sought to undermine tribal law by turning to Agent Porter, who had been illegally granting individual Indians allotments.¹¹⁶ While waiting for an allotment, Kagama went to Iyouse’s home and stabbed him to death in June of 1885.¹¹⁷ Porter promptly reported the murder to the local United States Attorney who seized the opportunity to file the inaugural prosecution under the MCA.¹¹⁸

The case quickly reached the Supreme Court, not to discern Kagama’s innocence but to determine whether the United States possessed the constitutional authority to enact the MCA. In support of the MCA, the United States asserted the legislation was presumptively constitutional, and the Commerce Clause provided Congress with the ability to pass the MCA.¹¹⁹ The United States further argued federal criminal law was needed to assimilate Indians and destroy tribal culture.¹²⁰ Kagama countered the MCA was unconstitutional. Evidencing this position, Kagama contended the United States had never claimed the power to prosecute Indian-on-Indian crimes within a reservation until the MCA because tribes were sovereigns.¹²¹

The Supreme Court sided with the United States in May of 1886 in United States v. Kagama. The Court rejected the United States’ claim that the Commerce Clause authorized the MCA declaring, “But we think it would be a very strained construction of this clause ….”¹²² Nonetheless, the Court decided Congress does not need express constitutional authority when legislating in Indian Affairs because:

These Indian tribes are the wards of the nation. They are communities dependent on the United States. Dependent largely for their daily food. Dependent for their political rights. They owe no allegiance to the States, and receive from them no protection. Because of the local ill feeling, the people of the States where they are found are often their deadliest enemies. From their very weakness and helplessness, so largely due to the course of dealing of the Federal Government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power. This has always been recognized by the Executive and by Congress, and by this court, whenever the question has arisen.¹²³

The Court went on to elaborate: “The power of the General Government over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection, as well as to the safety of those among whom they dwell.”¹²⁴ In other words, Congress requires no express constitutional authority because it is legislating for the Indians’ own good.¹²⁵

Following the Supreme Court’s decision, Kagama was prosecuted in federal court in the Northern District of California. Ironically, the federal judge directed the jury to issue a not-guilty verdict because the crime actually occurred outside of the reservation’s boundaries. Off reservation, jurisdiction rested with California rather than the United States. California did not prosecute Kagama. He returned to the reservation where he lived his remaining ten years.¹²⁶

Although Kagama was not punished under the MCA, the Supreme Court’s decision to uphold the law has had extremely deleterious effects on tribal sovereignty. The MCA subverts tribal law and governance. Crime is historically a local matter as criminal laws are supposed to reflect community values. The MCA permits federal prosecutors – who are not members of the tribal community – to punish tribal citizens under externally imposed laws. Likewise, the MCA pulls Indians from their reservations and tries them in distant federal courts where their fate will be determined by a jury who is unlikely to possess a single Indian or a member of their community.¹²⁷ And the Court’s permitting Congress to enact legislation sans express constitutional authority meant the rule of law offered tribes little protection.

✦✦✦

On reservations, the federal government solidified its power over tribes. While the Constitution provided no explicit authority for the federal government’s plenary power over tribes, the United States embraced – and continues to embrace – the doctrine. Plenary power enabled the federal government to do whatever it desired in Indian affairs. During the late 1800s, the United States’ goals were the acquisition of tribal land and destruction of tribal governments. Congress used its plenary power to accomplish both objectives.

8 Allotment and Assimilation

The United States’ effort to exterminate tribal existence peaked in the late 1800s. Tribes were viewed as obstacles to American greatness. Hence, most Americans of the era believed “[t]he only good Indian is a dead Indian.”¹ On the floor of the House of Representatives in 1868, Montana Congressman James Michael Cavanaugh chastised a New England representative for his pro-Indian sentiments, declaring: “The gentleman from Massachusetts may denounce the sentiment as atrocious, but I will say that I like an Indian better dead than living. I have never in my life seen a good Indian (and I have seen thousands) except when I have seen a dead Indian.”² Cavanaugh condemned New Englanders as naïve for hoping to assimilate Indians. Cavanaugh stated, “I believe in a policy that exterminates the Indians, drives them outside the boundaries of civilization, because you cannot civilize them.”³ Notwithstanding Cavanaugh’s warning, Congress adopted a policy of Indian assimilation, which meant the destruction of tribal culture, dispossession of tribal land, and removal of Indian children.

8.1 The General Allotment Act

Congress’ newly sanctioned extraconstitutional power over Indian tribes was immediately used to break up reservations. White frontiersmen had long yearned for tribal lands,⁴ but tribal lands were secured by treaties. Though the United States was obligated by treaties to secure reservation lands against white intruders, the United States lacked the political will to enforce this treaty guarantee. Even if the United States was eager to honor its duty to protect reservation borders, it is not clear it could have. Heaps of white settlers were racing west in search of land and a better life. The white settlers’ actions were in perfect harmony with Manifest Destiny.⁵ Hence, reservations were becoming an obstacle to the United States’ expansionist goals.⁶

American invasion of tribal land caused immense hardships for tribes, and easterners had taken an interest in Indian plight. These self-proclaimed “Friends of the Indian” were Christians who had usually never met an Indian, much less actually visited a reservation. Since the members of the group had little personal familiarity with Indians, they relied on stereotypes. Consequently, Friends of the Indian erroneously assumed Indians were all communists who did not acknowledge private property rights. The absence of private property was the culprit of reservation poverty and hopelessness according to the Friends of the Indian, as well as many others.⁷

Friends of the Indian sought to transform Indians from their “savage”, tribal state into yeoman American farmers through the magic of private property.⁸ Hence, the Friends of the Indian sought to convert reservations from tribal lands into individually owned parcels subject to the laws of the surrounding state. Liquidating the tribal land base would hasten the abolition of tribal laws and customs. On privately owned land, Indians would be compelled to farm, and adopting agriculture was key to abolishing Indian culture. As one federal Indian agent declared, “[T]he common field is the seat of barbarism; the separate farm the door to civilization.”⁹ An added benefit of converting reservations into private property would be reduced federal expenses as Indians would become self-sufficient.¹⁰ Friends of the Indian viewed privatizing reservations and abandoning tribal ways as the Indians’ only chance of holding on to their lands in the face of white, westward expansion.¹¹

The interests of the land-hungry westerners and pro-Indian easterners aligned, albeit in an ethnocentric manner.¹² This paved the way for allotment legislation – breaking reservation lands into parcels of private property. One member of Congress in 1886 went so far as to state, “It has … the endorsement of the Indian rights associations throughout the country, and of the best sentiment of the land.”¹³ However, not everyone in Congress believed privatizing reservations would benefit Indians. Senator Henry Teller, the former Secretary of the Interior responsible for Courts of Indian Offenses, described the bill designed to privatize reservations as “a bill to despoil the Indians of their lands and make them vagabonds on the face of the earth.”¹⁴ Likewise, a minority report from the House Committee on Indian Affairs made the following assessment of reservation privatization efforts in 1880:

The real aim of this bill is to get at the Indian lands and open them up to settlement. The provisions for the apparent benefit of the Indians are but the pretext to get at the lands and occupy them …. If this were done in the name of greed it would be bad enough; but to do it in the name of humanity, and under the cloak of an ardent desire to promote the Indian’s welfare by making him like ourselves whether he will or not is infinitely worse.¹⁵

No one bothered to get the tribal perspective on allotment.

Had tribes been consulted, Americans would have learned that tribes opposed allotment. Cherokee Nation Principal Chief D.W. Bushyhead explained the idea underlying allotment – Indians lack private property – was false, asserting: “The statements made to you that we, or any of the Indians, are communists and hold property in common are entirely erroneous. No people are more jealous of the personal right to property than Indians.”¹⁶ In fact, all tribes, including even nomadic tribes, recognized private property rights in land.¹⁷ Allotment’s other underlying assumptions, that all tribes are nomadic and nonagricultural, were also misguided as many tribes had long traditions of farming. Moreover, some tribes used their equestrian skills to become successful ranchers on reservations.¹⁸ Tribes opposed allotment because they knew losing land meant losing sovereignty and their ability to exist as separate governments. Tribes also scoffed at the arrogance of the United States giving their citizens lands that already belonged to the tribes.

Proponents of privatization prevailed in 1887 when the General Allotment Act (GAA), often referred to as the Dawes Act for its author and lead advocate Senator Henry Dawes of Massachusetts, was enacted. The GAA divided reservations into 160-acre parcels for each Indian head of household, 80-acre parcels for single people over eighteen years of age, and 40 acres for minor orphans. The parcels allotted to Indians were placed in trust by the United States for a twenty-five-year period. While the land was held in trust, it was exempt from state taxes as well as other encumbrances.¹⁹ When the trust period concluded, Indians were to become self-supporting farmers, so farm implements were guaranteed to Indians as part of allotment. United States citizenship would be bestowed upon allottees at the end of the trust period. Indian lands became alienable and subject to state jurisdiction at the conclusion of the trust period. Significantly, lands remaining after Indians received their allotments were deemed “surplus.” The surplus lands could only be taken from tribal control with tribal consent.²⁰

8.2 Tribal Consent Not Needed

Allotment proceeded from reservation to reservation rather than en masse – reservations with high-quality farmland or resource endowments, like gold, were allotted before reservations with lower commercial value.²¹ The United States issued individual Indians their allotments with little trouble as Indians were required to take allotments.²² Surplus lands were another matter. Some tribes were able to negotiate a price for their surplus lands with the United States, but many tribes held out. Some tribes categorically refused to sell, yet others wanted more money for their land than the United States was willing to pay.²³ This prevented the United States from opening millions of acres of tribal lands to white settlement. Therefore, the United States resorted to subterfuge during negotiations, and the United States’ effort to allot the Kiowa, Comanche, and Apache (KCA) Reservation epitomized the federal government’s malfeasance.

The United States sent a commission under David Jerome to negotiate the cession of KCA surplus lands in 1892.²⁴ Each of the tribes opposed selling their surplus lands.²⁵ Jerome responded by reminding tribes that their treaty-guaranteed annuities expired in 1898 and promised the KCA a bleak future if their surplus lands were not relinquished.²⁶ Seeing the writing on the wall, Comanche Chief Quannah Parker actively negotiated for the highest possible price for the KCA lands.²⁷ Parker was half Indian and half white. A pragmatist, Parker accepted what he believed to be the benefits of white society while holding on to the Comanche traditions he valued.²⁸ His outlook enabled him to become an extremely successful businessman. He used his wealth to aid the downtrodden, including feeding hungry Indians and fostering homeless white children.²⁹ Parker hired an attorney to represent the KCA during the allotment negotiation. Ultimately, Parker was able to increase the sales price by $500,000.³⁰ Due to this amendment, Parker and other tribal leaders endorsed the agreement. The KCA men then consented to the allotment as required by their treaty.³¹

However, suspicions were quickly raised among the KCA. The KCA discovered they were given a fraudulent translation of the allotment document.³² The KCA leadership traveled to Washington, DC to protest the agreement. Congress and the Commissioner of Indian Affairs both acknowledged the KCA’s opposition to allotment.³³ Fraud aside, the KCA noted the Treaty of Medicine Lodge required that three-quarters of the KCA men agree to any land cessions, and Jerome failed to meet this threshold.³⁴ Tribes fought ratification of the agreement diligently for eight years, but Congress approved it in 1900.³⁵ Following ratification, Parker accepted the KCA’s fate and sought to make the best of allotment.³⁶ However, Lone Wolf fought on.

Lone Wolf was principal chief of the Kiowa.³⁷ Unlike Parker, Lone Wolf was a staunch traditionalist. He and his followers refused government handouts and many other things associated with whites.³⁸ Thanks to financial backing from the Indian Rights Association as well as the cattlemen who had been leasing the KCA lands, Lone Wolf hired an attorney and filed a federal court action challenging the agreement in June of 1901.³⁹ Lone Wolf’s arguments were simple: The agreement was a product of fraud and was not signed by three-quarters of the KCA men.⁴⁰ Rather than addressing the merits of Lone Wolf’s claims, the district court ruled for the United States because Indian tribes “are dependent wards of this nation in a state of pupilage, subject to the Control of Congress.”⁴¹ The federal court of appeals affirmed the district court in December of 1901.⁴²

Two years later, the Supreme Court denied Lone Wolf’s plea, asserting Lone Wolf’s argument “ignores the status of the contracting Indians and the relation of dependency they bore and continue to bear towards the government of the United States.”⁴³ The Court explained Indians’ dependent status granted Congress “paramount power over the property of the Indians.”⁴⁴ Consequently, the Court believed no one ever questioned whether the United States possessed the power to lawfully, unilaterally abrogate treaties with tribes. While the Court acknowledged Lone Wolf’s arguments may have merit, the Court held they were of no moment because congressional acts toward tribes are non-judiciable political questions. As a result, the Court said if Lone Wolf believed he had been wronged, he should appeal to Congress rather than the judiciary.⁴⁵

The Court’s decision, Lone Wolf v. Hitchcock, validated the United States’ trampling tribal sovereignty. As Senator Matthew Quay declared soon after the Court issued its decision:

[Lone Wolf] is a very remarkable decision. It is the Dred Scott decision No. 2, except that in this case the victim is red instead of black. It practically inculcates the doctrine that the red man has no rights which the white man is bound to respect, and that no treaty or contract made with him is binding. Is that not about it?⁴⁶

Lone Wolf left tribes without any recourse against congressional malfeasance. And unrestrained by treaties – the supreme law of the land under the United States Constitution – Congress raced to open tribal surplus lands.⁴⁷ But even this evisceration of tribal treaty rights was not enough for land-hungry speculators.

8.3 Accelerating Allotment

Under the GAA, the federal government held individual Indians’ land in trust for twenty-five years, and whites wanted Indian lands immediately. Lone Wolf gave Congress the power to respond to popular desire and pass the Burke Act of 1906.⁴⁸ The Act allowed the Secretary of the Interior to end the trust period and issue Indians fee patents upon being deemed “competent and capable of managing his or her affairs.”⁴⁹ Competency determinations were usually made by the local reservation superintendent.⁵⁰ By 1910, the Commissioner of Indian Affairs began creating competency commissions with formalized procedures to determine an Indian’s competency.⁵¹ In 1917, the Office of Indian Affairs further loosened the trust restraints on allotments by adopting a policy racializing the definition of “Indian.” The 1917 policy declared:

To all able-bodied adult Indians of less than one-half Indian blood, there will be given as far as may be under the law full and complete control of all their property. Patents in fee shall be issued to all adult Indians of one-half or more Indian blood who may, after careful investigation, be found competent …⁵²

At the trust period’s conclusion, tribes were supposed to vanish.

The loss of trust status subjected Indians to myriad abuses. Many Indians could not speak English and lost their land through fraudulent transactions.⁵³ Some Indians were kidnapped by whites and forced to sign over their allotments.⁵⁴ Others lost their land through state tax sales as they were not provided with the necessary farm tools or seeds to make their land productive.⁵⁵ Through the issuance of fee patents, 90 percent of Indians were stripped of their land and cast into dire poverty.⁵⁶ Allotment caused immense harm to many Indians.

Allotment was also calamitous for tribes. Tribes held 138 million acres when the GAA was passed. By 1934, tribal landholdings fell to forty-eight million acres. Diminished land bases made it more difficult for tribes to maintain their cultures and governments. President Theodore Roosevelt was pleased with allotment’s destructive effects on tribal governments, declaring: “The General Allotment Act is a mighty pulverizing engine to break up the tribal mass …. The Indian should be treated as an individual – like the white man.”⁵⁷ Thus, according to President Roosevelt, Friends of the Indian, and many others during the era, tribes should not exist as governments and Indians should assimilate.

8.4 The Last Arrow but Still an Indian

Race and culture were inextricably intertwined. Indian citizenship ceremonies evinced this. As Indians did not acquire United States citizenship by birth, they often obtained citizenship status later in life. At the end of an allotee’s trust period, during the early 1900s, the United States devised the “Last Arrow Ceremony.”⁵⁸ Indians first had to prove they were competent – which could be done by possessing less than one-half Indian blood – and acquiring fee-simple title to a piece of land, which usually occurred at the end of the allotment period. The United States used different ceremonies for men and women.

For men, the ceremony began when the federal agent asked the Indian: “What was your Indian name?” Upon receiving the answer, the federal agent handed the Indian, who was adorned in “traditional Indian” garb, a bow and ordered him to fire an arrow. The federal agent then stated:

You have shot your last arrow. That means that you are no longer to live the life of an Indian. You are from this day forward to live the life of the white man. But you may keep that arrow, it will be to you a symbol of your noble race and of the pride you feel that you come from the first of all Americans.

The Indian then entered a teepee and switched into “white” clothes. Next, the Indian placed his hands upon a plow, and the federal agent said:

This act means that you have chosen to live the life of the white man – and the white man lives by work. From the earth we all must get our living and the earth will not yield unless man pours upon it the sweat of his brow. Only by work do we gain a right to the land or to the enjoyment of life.

Following this, the agent declared:

I give you a purse. This purse will always say to you that the money you gain from your labor must be wisely kept. The wise man saves his money so that when the sun does not smile and the grass does not grow, he will not starve.

I give into your hands the flag of your county. This is the only flag you have ever had or ever will have. It is the flag of freedom; the flag of free men, the flag of a hundred million free men and women of whom you are now one. That flag has a request to make of you, _________________ (white name), that you take it into your hands and repeat these words:

“For as much as the President has said that I am worthy to be a citizen of the United States, I now promise to this flag that I will give my hands, my head, and my heart to the doing of all that will make me a true American citizen.”

And now beneath this flag I place upon your breast the emblem of your citizenship. Wear this badge of honor always; and may the eagle that is on it never see you do aught of which the flag will not be proud.

The citizenship ceremony for Indian women reflected the United States’ view of women during the era. Thus, for women, the agent stated:

Take in your hand this work bag and purse.

This means that you have chosen the life of the white woman – and the white woman loves her home. The family and the home are the foundation of our civilization. Upon the character and industry of the mother and homemaker largely depends the future of our Nation. The purse will always say to you that the money you gain from your labor must be wisely kept. The wise woman saves her money, so that when the sun does not smile and the grass does not grow, she and her children will not starve.

I give into your hands the flag of your country. This is the only flag you have ever had or ever will have. It is the flag of freedom, the flag of free men, a hundred million free men and women of whom you are now one. That flag has a request to make of you, _________________ (white name), that you take it into your hands and repeat these words:

“For as much as the President has said that I am worthy to be a citizen of the United States, I now promise to this flag that I will give my hands, my head, and my heart to the doing of all that will make me a true American citizen.”

And now beneath this flag I place upon your breast the emblem of your citizenship. Wear this badge of honor always, and may the eagle that is on it never see you do aught of which the flag will not be proud.⁵⁹

Following the ceremony, Indians were to become equal to white United States citizens.

This was not the case as Indians were subject to extreme federal control even after acquiring citizenship. The Supreme Court declared in 1916: “Citizenship is not incompatible with tribal existence or continued guardianship, and so may be conferred without completely emancipating the Indians or placing them beyond the reach of congressional regulations adopted for their protection.”⁶⁰ Consequently, Indians who became United States citizens remained subject to criminal laws designed specifically for Indians because they “remained Indians by race.”⁶¹ Hence, “full-blood Indians” could not alienate or encumber their land without first obtaining permission from the Secretary of the Interior.⁶² This remained true no matter how peaceful and industrious they became. For example, the Supreme Court described the Pueblo Indians as “a peaceable, industrious, intelligent, honest, and virtuous people” in 1877.⁶³ Notwithstanding, the Supreme Court determined the Pueblos’ status as citizens was irrelevant to Congress’ assertion of plenary power over them in 1913 because they were racially Indians, which according to the Supreme Court meant “they are essentially a simple, uninformed and inferior people.”⁶⁴

8.5 Indian Boarding Schools

Crucial to the United States’ goal of destroying tribal governments was eradicating tribal culture, and the United States long sought to indoctrinate Indian children in white, Christian ways. As early as 1819, the United States administered a Civilization Fund that paid religious institutions to educate Indian children in white culture.⁶⁵ In 1860, the United States opened the first boarding school on an Indian reservation.⁶⁶ The first off reservation boarding school was established by Colonel Richard Pratt in Carlisle, Pennsylvania in 1879.⁶⁷ Pratt claimed off reservation boarding schools were needed because children could run away to their homes too easily while on reservation.⁶⁸ Pratt further averred removing children from tribal land would eliminate all Indigenous influences that may interfere with the assimilation process.⁶⁹

Pratt was a “Friend of the Indian” and believed boarding schools were the answer to the Indian problem. In an infamous speech, Pratt declared:

A great general has said that the only good Indian is a dead one, and that high sanction of his destruction has been an enormous factor in promoting Indian massacres. In a sense, I agree with the sentiment, but only in this: that all the Indian there is in the race should be dead. Kill the Indian in him, and save the man.⁷⁰

While Pratt’s remarks seem harsh, kill or assimilate Indians was a serious policy debate during the latter half of the nineteenth century. Commissioner of Indian Affairs Carl Schurz declared Indians had “this stern alternative: extermination or civilization.”⁷¹ For economic reasons, the United States chose assimilation. Schurz estimated “it cost nearly a million dollars to kill an Indian in warfare, whereas it cost only $1,200 to give an Indian child eight years of schooling.”⁷² Secretary of the Interior Henry Teller estimated it would cost at least four times as much to fight tribes as to educate their children.⁷³ Thus, boarding schools became the United States’ solution to the Indian problem.

The United States operated more than 400 boarding schools.⁷⁴ Some Indians freely sent their children to boarding schools. Others were distrustful of the federal government and would not relinquish their children to the United States. Indians who would not surrender their children had their rations withheld⁷⁵ and their children abducted by federal police.⁷⁶ One way or another, the federal government removed thousands of Indian children from their families and placed them in boarding schools.⁷⁷

Life at boarding school was grim. Upon arrival, Indian children were bathed in kerosene,⁷⁸ given white names, forced to wear Anglo-American clothing, had their hair cut in civilized styles, and were forbidden from speaking their Indigenous language or practicing their native religion.⁷⁹ Academics were given little attention.⁸⁰ Instead, federal Indian boarding schools emphasized industrial training, such as teaching boys skills like carpentry, shoemaking, and farming.⁸¹ Indian girls were taught to cook, clean, and sew.⁸² Boarding schools also loaned Indian children out to labor for white families.⁸³ A 1928 report to the federal government concluded, “The labor of [Indian] children as carried on in Indian boarding schools would, it is believed, constitute a violation of child labor laws in most states.”⁸⁴

Boarding schools were perilous places for Indian children. They died operating heavy machinery.⁸⁵ Malnutrition was common,⁸⁶ and children regularly died of starvation.⁸⁷ Hunger combined with inadequate medical care left children susceptible to all variety of ailments.⁸⁸ Children were punished for offenses, including speaking their native language, by whipping, flogging, and other corporal punishments, as well as solitary confinement.⁸⁹ Withholding food was also used to punish Indian youth.⁹⁰ Sexual abuse was rampant.⁹¹ Hundreds of children died in boarding schools.⁹² Many were buried in unmarked graves,⁹³ and some boarding schools concealed the bodies of deceased children in school walls.⁹⁴

The deaths of Indian children were viewed as collateral damage in the United States’ quest to destroy tribes. In 1902, the Commissioner of Indian Affairs declared the purpose of the boarding school system was to “educate the Indian is to prepare him for the abolishment of tribal relations, to take his land in severalty, and in the sweat of his brow and by the toil of his hands to carve out, as his white brother has done, a home for himself and family.”⁹⁵ The Commissioner of Indian Affairs’ 1910 Report to the Secretary of the Interior noted that teaching Indian children reading, writing, and arithmetic was not the goal of boarding schools but:

The essential feature of the Government’s great educational program for the Indians is the abolition of the old tribal relations and the treatment of every Indian as an individual. The basis of this individualization is the breaking up of tribal lands into allotments to the individuals of the tribe. This step is fundamental to the present Indian policy of the Government. Until their lands are allotted, the Government is merely marking time in dealing with any groups of Indians.⁹⁶

Boarding schools were little more than a tool to destroy tribal governments and cultures.

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Allotment was a gross violation of federal law as it contravened tribal treaty rights. Allotment enabled the United States to “legally” strip tribes of ninety million acres of land. Furthermore, removing land from tribal control stymied tribes’ ability to function as governments. Allotment also prevented Indians from acting as autonomous individuals by placing their land in federal trust status and compelling them to farm. But the loss of land was not as grave as the loss of their children. Not only were Indian families deprived of their children, but their children were indoctrinated to believe their Indigenous culture and government were contemptible. However, tribal institutions endured. Public policy briefly turned toward preserving tribal governments but soon reverted to terminating them.

9 The Indian New Deal to Tribal Termination

Allotment weakened tribal governments and forced Indians to assimilate into the white world.¹ Nevertheless, even Indians who assimilated faced staunch discrimination because of their race. For example, John Elk was born a tribal Indian, but he severed all ties with his tribe and adopted white ways. He was denied the right to vote in a state election. Elk argued this violated his rights; however, the Supreme Court held he could not vote in state elections because he was an Indian. Indians could only acquire United States citizenship through treaty or statute, and neither applied to Elk.² Against this backdrop, tribes and their citizens struggled economically and culturally. Over the ensuing years, the United States bestowed citizenship upon all Indians and sought to reverse allotment in order to preserve tribal governments and culture. However, by the 1950s, the United States returned to eliminating tribes altogether again.

9.1 Jim Thorpe

The American public generally paid little heed to Indian rights because Indians were largely out of sight; indeed, it was assumed they would finally disappear in a matter of generations.³ However, Jim Thorpe proved Indians were still here and could thrive. Jim and his twin brother, Charlie, were born in 1887 to a half-Irish and half-Sac and Fox father, Hiram, and mother, Charlotte, who was half-French and half-Potawatomi.⁴ Hiram enrolled the boys in the Sac and Fox Agency Boarding School when they were six years old.⁵ In 1897, Jim’s brother died during a disease outbreak at the school.

Charlie’s death increased Jim’s distrust of the school, so Jim ran away from the institution. His dad proceeded to enroll him in the Haskell Institute for Indians in Lawrence, Kansas. Jim absconded from Haskell when the authorities would not let him leave to visit his ailing father. It took Jim two weeks to complete the 270-mile journey to his Oklahoma home on foot. When Jim arrived at his destination, his father had recovered.⁶ While home, Jim attended a local school, Garden Grove, and excelled as an athlete. A superintendent of the Carlisle Indian School visited Garden Grove to recruit for its sports teams. A Garden Grove teacher advised Jim that Carlisle was a better institute for promising athletes than Garden Grove, so Jim decided to attend. As he departed for Carlisle in 1904, Hiram told Jim, “Son, you are an Indian. I want you to show other races what an Indian can do.”⁷

Carlisle did not begin as Jim hoped. Hiram passed soon after Jim transferred to Carlisle,⁸ and rather than practicing sports, Jim was ordered to work as a farmhand for $2 a week. This farmwork was supposed to ingrain white values into Jim and other Indian lads. But three years after his arrival at Carlisle, Jim caught the eye of the school’s athletic director, the legendary Glenn “Pop” Warner, when he casually broke the school’s high jump record while wearing his work clothes.⁹ Jim quickly achieved track and football acclaim. Since Carlisle profited from sports ticket sales, Jim’s quality of life drastically improved. He was upgraded to the athletic dorm and received better rations. Furthermore, Jim and the other athletes were given expense accounts at local stores. Jim also made money playing minor league baseball, as college athletes commonly did during the era.¹⁰

While Jim dominated college sports, his greatest glory came during the 1912 Olympics. Jim competed in both the decathlon and pentathlon, earning gold in both with an impressive margin of victory. He prevailed in four of the five pentathlon events and was equally dominant in the decathlon. Despite running on a rain-soaked track, Jim’s time in the 100-meter dash would not be equaled for a quarter-century. His time in the 1,500 meter would not be matched by an Olympic decathlete until 1972.¹¹ Jim’s dominance was all the more remarkable considering someone stole his shoes during day two of the decathlon. A shoe was fished out the trash can for Jim. Unsurprisingly, the shoe did not fit, so Jim had to double up on socks.¹² Still, he delivered one of the most transcendent performances in sports’ history.

Although no one questioned Jim’s victories, he was stripped of his gold medals in 1913. No performance-enhancing drugs or other malfeasance was alleged. Instead, the International Olympic Committee (IOC) learned Jim received money while playing minor league baseball. This violated IOC rules. While Jim was indisputably guilty, countless other Olympians were paid to play sports. Nonetheless, Jim was the only person the IOC prosecuted under this rule. The IOC also brought the claim after the IOC’s statute of limitations expired. The only plausible explanation for the IOC’s selective enforcement was Jim’s Indian blood.¹³ Even those who wished Indians would disappear recognized the injustice foisted upon Jim. To the American public, stripping Jim of fairly won gold medals became a vivid illustration of the discrimination Indians endured.¹⁴

9.2 Indian Citizenship and the Great War

Perhaps the most bizarre aspect of Jim Thorpe’s Olympic bid was that Jim was not an American citizen when he won two gold medals for the United States.¹⁵ Jim was not an anomaly on this front as approximately two-thirds of Indians were not American citizens at the time. This presented a quandary when the United States entered World War I and implemented a draft. Despite not being citizens, Indians were required to register for the draft. However, Indians were able to claim an exemption from service on the grounds they were not citizens. Many tribes viewed this compulsory process as a violation of their sovereignty. Notwithstanding, Indians volunteered to fight for the United States at higher numbers than the general population, roughly 30% of all Indian men versus 15% of other American men. And to compensate for concerns about their sovereignty, the Oneida and Onondaga entered declarations of war against Germany.¹⁶

Owing to stereotypes about Indians’ innate martial prowess, Indians were highly sought-after soldiers.¹⁷ Indians were portrayed as good at running, crawling, and adapting to their environment. Indians’ ability to solve military-related problems was not “a conscious process of reasoning” but a matter of Indians’ warrior instincts. One such caricature contended an Indian:

[P]roves to be a good athlete, shows remarkable sense of direction, goes about his duties uncomplainingly, does not get lost, is a good runner, has unlimited patience and reserve, is a good shot, crawls habitually on night patrols, has non-light reflective countenance at night, is silent at work, stoical under fire, and grasps the significance and makes free use of signals.¹⁸

These views were not just held by Americans; indeed, German troops held Indian soldiers in particularly high esteem.¹⁹

Indians made a significant contribution to the United States’ success in the Great War. Indians volunteered for dangerous missions; consequently, Indians died for their homeland at five times the rate of other American troops. Additionally, Indigenous languages proved impossible to decipher. So while the United States was actively trying to exterminate Indigenous languages, it was simultaneously using Indigenous languages to coordinate American military strategy. On the home front, Indians volunteered for the Red Cross, grew victory gardens, and purchased more than $25 million in bonds to support the United States.

Indians believed their service would result in better treatment. They were wrong as discrimination continued postbellum. While the United States expressed no opposition to Indians purchasing war bonds, it would not allow Indians to redeem the bonds on the grounds they were incompetent.²⁰ Healthcare providers were diverted from reservations as part of the war effort and were not immediately replaced after the war’s conclusion.²¹ The United States also used the war as justification to seize Indian land and resources on the rationale that the land could be better used by whites.²² Plus, the war increased the price of food, making whites even hungrier for Indian lands due to higher agricultural profits.²³

Nonetheless, Congress passed legislation in 1919 enabling Indians who served in World War I and were honorably discharged to become United States citizens.²⁴ Many Indian veterans welcomed United States citizenship, but some Indians did not want this status because they viewed citizenship as part of the federal government’s long-running assimilatory push.²⁵ Thus, Indians often did not apply for United States citizenship.²⁶ But as usual, Indian personal preferences were disregarded. The Indian Citizenship Act was passed in 1924, granting all Indians within the United States’ borders citizenship.²⁷ The Indian Citizenship Act specifically preserved Indian treaty and property rights; however, many Indians were skeptical. Tuscarora Chief Clinton Rickard explained:

United States citizenship was just another way of absorbing us and destroying our customs and our government. How could these Europeans come over and tell us we were citizens in our country? We had our own citizenship. We feared citizenship would also put our treaty status in jeopardy and bring taxes upon our land. How can a citizen have a treaty with his own government? To us, it seemed that the United States was just trying to get rid of its treaty obligations and make us into taxpaying citizens who could sell their homelands and finally end up in the city slums …. The Citizenship Act did pass in 1924 despite our strong opposition. By its provisions all Indians were automatically made United States citizens whether they wanted to be so or not. This was a violation of our sovereignty. Our citizenship was in our nations. We had a great attachment to our style of government. We wished to remain treaty Indians and preserve our ancient rights.²⁸

In addition to the points enumerated by Chief Rickard, state citizenship could be used to justify greater assertions of state authority over tribes. After all, states could claim exercising authority over tribal lands was necessary to protect the rights of their Indian citizens. Accordingly, Rickard and other members of the Haudenosaunee unsuccessfully contested the Indian Citizenship Act in federal court.²⁹

9.3 The Indian New Deal

Citizenship did not improve life for Indians. Indeed, the Institute for Government Research published a report in 1928 with the infamous opening line, “An overwhelming majority of the Indians are poor, even extremely poor ….”³⁰ The report, now referred to as the Meriam Report because it was authored by Lewis Meriam, laid bare the horrendous conditions Indians were living in. The report described the poverty, lousy housing, and crummy educational facilities; in fact, the report noted Indians’ precontact abodes were cleaner and superior to the housing provided on reservations during the 1920s. Significantly, the report concluded Indian poverty was not due to Indian cultural or racial inferiority but a consequence of “[s]everal past policies adopted by the government in dealing with the Indians have been of a type which, if long continued, would tend to pauperize any race ….”³¹ Federal officials seemed to agree with Meriam as they responded by slowing down allotment and increasing the number of Indians working within the Bureau of Indian Affairs (BIA).³² More significantly, the Meriam Report provided an impetus to include tribes in President Franklin Roosevelt’s New Deal, and John Collier was eager to draft the legislation.

Collier was born in Atlanta, Georgia in 1884. After graduating from college, he became a social worker and was heavily involved in progressive causes. In 1919, Collier accepted a job directing an adult education program in California. His supposed communistic beliefs caused trouble, and he left his post within a year. From California, he migrated to Taos, New Mexico where he quickly became enamored with tribal culture. He believed traditional tribal cultures had something valuable to offer the world and passionately fought to preserve them. Thus, Collier led a successful campaign to prevent the further diminishment of tribal lands in New Mexico in 1922. Soon after, he helped found the American Indian Defense Association and regularly advocated for tribes in Washington, DC.³³ Owing to his efforts on behalf of tribes, he was appointed Commissioner of Indian Affairs in 1933.

With the Meriam Report and New Deal as his guides, Collier immediately began working to transform federal Indian policy. Ending allotment was his primary goal. Collier knew if allotment continued, tribal governments would be dissolved into the surrounding state. In order to preserve tribal cultures, Collier believed tribes needed formalized governing structures akin to their state counterparts.³⁴ Collier’s initial proposal failed, but a slimmed-down version passed in 1934, known as the Indian Reorganization Act (IRA).³⁵ The IRA is the first legislation in the United States’ history designed on the premise that tribal governments should exist. According to a 1934 House Report, the IRA’s purpose was “to rehabilitate the Indian’s economic life and to give him a chance to develop the initiative destroyed by a century of oppression and paternalism.”³⁶

The IRA had many benefits for tribes. First and foremost, the IRA ended allotment, thereby preventing further loss of tribal land bases. Likewise, the IRA extended the trust period on lands within Indian control and authorized the Secretary of the Interior to expand tribal land bases as well as establish new reservations. The IRA authorized tribes to adopt formal governments by crafting their own constitutions and laws. To promote tribal economic development, the Secretary of the Interior was authorized to make loans to Indian corporations. Tribal economic development was also furthered by creating federally chartered corporations with the power to purchase and sell land. The IRA increased funding for Indian education and created hiring preferences for Indians within the BIA. Additionally, the IRA was optional. One hundred and eighty-one tribes voted to adopt the IRA and seventy-seven rejected IRA governments.³⁷

Although the IRA was a positive step for tribes, it had many critics. The IRA’s keystone provision achieved its goal of preserving tribal land bases; however, the lands were locked in perpetual trust status. Many Indians wanted to own their land privately and accused Collier of being a communist for foisting trust land upon tribes.³⁸ Moreover, inalienable trust lands were exceedingly difficult to mortgage, making access to capital difficult for Indians who reside on trust land. Federal ownership of trust land was accompanied by extreme federal oversight of the activities occurring on trust land; in fact, the BIA claimed the IRA granted it the power to set Indian bedtimes.³⁹ Thus, these federal impositions infringed upon tribes’ ability to design their own laws.

Similarly, the IRA governing structures the federal government encouraged tribes to adopt were often inconsistent with traditional, Indigenous governance institutions. While it is true that governance institutions evolve over time, the IRA governments reflected what Collier thought was best for tribes rather than the tribes’ own preferences.⁴⁰ Collier’s IRA ideals may have been practical, but they failed to recognize the diversity of tribal cultures.⁴¹ And despite tribes being allowed to vote for the IRA, many of the elections were dubious. In fact, the federal government counted abstentions as votes for the IRA.⁴² For example, the IRA was approved in an election on the Santa Ysabel reservation by a vote of seventy-one to forty-three though only nine people cast ballots in favor of the IRA.⁴³

The IRA was ultimately less about tribal welfare and more about what federal bureaucrats thought tribes should be. One critic described the IRA as a “glass case policy” intended to keep tribal cultures static, so they could serve “as museum specimens for future generations to study and enjoy.”⁴⁴ While the IRA remains controversial, non-Indian IRA supporters were acting in what they believed to be the best interest of the Indians. As Harold Ickes, Secretary of the Interior from 1933 to 1946,⁴⁵ declared, “The whites can take care of themselves, but the Indians need some one to protect them from exploitation.”⁴⁶

9.4 World War II

Congress passed additional legislation designed to benefit tribes during the 1930s,⁴⁷ but events around the globe pulled the United States’ attention away from Indian country. Germany had been preparing for war against the United States since the conclusion of World War I by sending agents disguised as social scientists to Indian reservations. A major motivation for this espionage effort was Germany’s inability to decipher the Choctaw language, and Germans also respected the valor Indian soldiers demonstrated during World War I. Due to the historic and ongoing abuses perpetrated against Indians by the United States, Germany believed an Indian revolt could be fomented, and tribes would ally with the Nazis. At minimum, Germany thought performing social work on reservations would dissuade Indians from registering to fight against Germany.⁴⁸

Germany’s calculus was wrong – the plan likely motivated Indians to take up arms against Germany.⁴⁹ Not that any inspiration was needed. As far as the Haudenosaunee were concerned, the war against Germany never ended because Germany had not made peace with the Haudenosaunee.⁵⁰ Other tribes entered formal declarations of war against Germany.⁵¹ Indians enlisted to defend the United States as well as their traditional homelands. If the general population volunteered to serve at the same rate as Indians, the United States would not have needed a draft. And the United States was glad to have them, as the Indian warrior stereotype carried into World War II.⁵²

Indians played a vital role in the United States’ success during World War II. As in World War I, the Indigenous languages of more than a dozen tribes served as a code that could not be decrypted.⁵³ Indigenous languages saved countless lives. As one marine stated, “Were it not for the Navajos, the Marines would never have taken Iwo Jima.”⁵⁴ Indians did more than transmit messages, as American officers regarded Indians as superior soldiers,⁵⁵ and they performed countless feats of heroism. Ira Hayes, of the Gila River Indian Community, served as a paratrooper and famously helped raise the Old Glory on the shores of Iwo Jima.⁵⁶ Joe Medicine Crow, of the Crow Tribe, completed the four tasks needed to become a Crow war chief while in the European theater: He led a successful war party, stole an enemy horse, disarmed an enemy, and touched an enemy without killing him.⁵⁷ Jim Thorpe’s daughter, Grace Thorpe, earned the Bronze Star for her courage during the Battle of New Guinea.⁵⁸ On the home front, Indians joined the war industry.⁵⁹ Indians also attempted to purchase war bonds but were sometimes prevented from doing so by federal bureaucrats within the BIA.⁶⁰

9.5 The Tribal Termination Era

Following World War II, the United States’ desire to promote tribal self-government crumbled. Ironically, Indians’ willingness to fight for the United States was used as a justification to end their unique status as citizens of both the United States and their tribes.⁶¹ More significantly, the United States had just fought against the National Socialist German Workers’ Party – better known as the Nazi Party – and was now engaged in a Cold War against the communist Union of Soviet Socialist Republics. Elected officials used erroneous stereotypes about tribal cultures to claim tribes were communist,⁶² and Indians needed to be “Americanized” – missing the irony of Americanizing the original Americans. Therefore, the United States once again marched down the path of eliminating tribes.

The federal termination policies of the 1950s were allegedly fueled by a desire to free Indians from the shackles of federal oversight and provide Indians with the same rights as other Americans. A House Concurrent Resolution in 1953 explained, “[I]t is the policy of Congress … to make the Indians within the territorial limits of the United States subject to the same laws and privileges and responsibilities as are applicable to other citizens of the United States, to end their status as wards of the United States ….”⁶³ Indians universally wished to be freed from the fetters of wardship;⁶⁴ however, they were immensely distrustful of the United States given its past record.⁶⁵ As one Blackfeet Indian testified to Congress in 1952, the feds had promised to shrink the BIA for nearly a century, but the BIA kept growing while Indian lands kept shrinking. This history had left Blackfeet and other tribes fearful that termination would diminish their governments and cast Indians into deeper poverty.⁶⁶

Indian fears soon came true. Congress and the Department of Interior terminated more than 100 tribes. Termination meant tribes no longer existed as sovereigns in the eyes of the United States; accordingly, tribes lost their reservations and access to federal services designed specifically for Indians.⁶⁷ Although termination of their tribal status was supposed to empower individual Indians and reduce the cost of the BIA, termination actually resulted in increased constraints on Indian liberty. Termination prevented Indians from accessing lawyers, restricted Indian land use, and further infringed upon tribes’ ability to govern themselves.⁶⁸ Furthermore, the BIA’s administrative termination machinations were nightmarishly complex and not finalized until years after tribes had already been terminated.⁶⁹

Not all tribes were terminated, and Congress sought to assimilate remaining tribes into the surrounding states. Thus, Congress enacted Public Law 83-280 (PL 280) in 1953, requiring five states and the Alaska Territory to extend their state criminal laws and civil adjudicatory authority over the reservations within their borders. Other states were allowed to unilaterally impose their jurisdiction over tribes. The assertion of state law over reservations was designed to compel Indians into adopting mainstream American culture, and according to President Dwight Eisenhower, eliminate Indians’ unique treatment as “‘second class’ citizens.”⁷⁰ PL 280 was also supposed to improve law and order on reservations. However, tribal lands remained exempt from state taxation and no federal funds were provided to supplement states’ newly increased law enforcement responsibilities. As a result, PL 280 states haphazardly provided law enforcement to reservations that often resulted in laws being selectively enforced to the detriment of Indians.⁷¹

In addition to injecting state law into reservations, the United States coerced Indians into leaving their reservations with the Indian Relocation Act of 1956.⁷² The United States assumed Indians would remain on reservations forever if conditions improved; consequently, the United States reduced its already minimal expenditures on reservation schools and healthcare.⁷³ The federal government promised Indians a better life once they left the reservation: quality jobs, improved education for their children, and access to all the United States had to offer.⁷⁴ In reality, Indians were given one-way bus tickets to major cities such as Los Angeles, Chicago, and Dallas. No job or training was provided upon arrival. Moreover, racial covenants often prevented Indians from even being eligible for decent housing.⁷⁵ Relocation caused immense hardship for more than 100,000 Indians.⁷⁶

Interestingly, the person in charge of the Indian relocation, as well as many other termination policies, was Dillon S. Myer.⁷⁷ Prior to this role, Myer was head of the War Relocation Authority (WRA) during World War II, the agency responsible for rounding up approximately 120,000 Japanese-American inhabitants of the west coast and placing them in internment camps.⁷⁸ Some of the internment camps were located on reservations in Arizona notwithstanding the protest of tribal governments.⁷⁹ In a further twist of irony, Myer noted internment camps and reservations had similar effects, stating they are “an institutionalized environment, which in turn produces frustration, demoralization, and a feeling of dependency among the residents.”⁸⁰ During World War II, Myer relocated more than 50,000 Japanese-Americans from internment camps to major cities.⁸¹ Myer forbade more than three Japanese-American families from relocating in the same area to prevent the formation of “Little Tokyos” and promote assimilation.⁸²

Myer’s tenure as head of the WRA was controversial,⁸³ and controversy followed him to the Indian Bureau. Though Myer may have been well-intentioned, he had no regard for tribal sovereignty. In fact, Myer thought tribal governments made no sense because Indians were now state citizens. Myer believed tribal governments hindered Indian assimilation and economic advancement. Although he intended to liberate Indians from federal paternalism, Myer ignored Indian opinions on his policies,⁸⁴ and he proposed regulations to further restrict Indian autonomy.⁸⁵ Secretary of the Interior Harold Ickes described Meyer as “a blundering and dictatorial tin-Hitler ….”⁸⁶ Ickes also noted, “So far as our American Indians are concerned, Commissioner Dillon Myer of the Bureau of Indian Affairs is a Hitler and Mussolini rolled into one.”⁸⁷

9.6 “Every American School Boy Knows …”

The termination era reached the Supreme Court in 1955 with Tee-Hit-Ton Indians v. United States.⁸⁸ The case arose when the United States seized the Tee-Hit-Ton clan of the Tlingit Tribe’s timber and land without providing the Tee-Hit-Ton just compensation as mandated by the Fifth Amendment of the United States Constitution. Reverting to the Doctrine of Discovery and Johnson v. M’Intosh, the Supreme Court ruled the United States was not obligated to provide the Tee-Hit-Ton with compensation. The Court asserted the Tee-Hit-Ton’s property rights had never been recognized by the United States. The Court averred tribes merely had “permission from the whites to occupy” land;⁸⁹ thus, the Tee-Hit-Ton could only seek compensation “as a matter of grace, not because of legal liability.”⁹⁰ Elaborating on this concept, the Court explained:

Every American schoolboy knows that the savage tribes of this continent were deprived of their ancestral ranges by force and that, even when the Indians ceded millions of acres by treaty in return for blankets, food and trinkets, it was not a sale but the conquerors’ will that deprived them of their land.⁹¹

Tee-Hit-Ton misrepresented tribal property rights and sovereignty. In Johnson v. M’Intosh, the Court recognized aboriginal title as a bona fide property interest.⁹² And nine years before Tee-Hit-Ton, the Court declared, “Something more than sovereign grace prompted the obvious regard given to original Indian title.”⁹³ Additionally, the Court’s reasoning in Tee-Hit-Ton is premised on the idea that tribes are not – and never were – real governments.⁹⁴ The Court’s crude reasoning and blunt language are particularly noteworthy considering a year earlier the Court issued its opinion in Brown v. Board of Education, the landmark civil rights victory. But with Tee-Hit-Ton, the Court gutted Indian civil rights.⁹⁵ Thus, rather than enhancing Indian liberty, termination denied Indians fundamental freedoms, like property rights and freedom of association.

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For nearly fifty years after the General Allotment Act, the United States sought to eliminate tribal governments, land bases, and cultures in an effort to coerce Indians into white society. The IRA of 1934 saved tribes from eventually being allotted out of existence. Though the IRA was far from perfect, it was superior to termination. Termination ended tribal sovereignty for many tribes and greatly weakened the sovereignty of others. At any point, Indians could have abandoned their tribal governments. But they endured. Their perseverance would soon be rewarded.

10 Tribal Self-Determination

Termination caused immense hardship for individual Indians and threatened the very existence of tribes. Indians, however, refused to abandon their governments and cultures. They resisted termination policies. For example, in 1963, South Dakota imposed PL 280 upon the tribes within the state in the name of “civil rights.”¹ But the Sioux tribes rallied together and invoked the state’s referendum process to block PL 280’s implementation.² The Sioux defeat of PL 280 was one of many tribal victories that culminated in a federal Indian policy revolution.

10.1 Sheep and Sovereignty

As the 1950s came to a close, tribal sovereignty gained new life thanks to a debt collection action on the Navajo Nation. Paul and Lorena Williams, citizens of the Navajo Nation, purchased goods on credit from the Ganado Trading Post, owned by Hugh Lee. The Williamses allegedly failed to make timely payment; accordingly, Lee filed suit against the Williamses in Arizona state court. The state court issued a writ of attachment authorizing Lee to seize the Williamses’ sheep. Lee had the county sheriff enter the Navajo Nation and impound twenty-eight of their sheep from the Williamses’ residence. The sheep were housed at the Ganado Trading Post. The Williamses managed to pay off all but $81 of the debt, but Lee would not release their sheep.³ Lee had grown up on the Navajo Nation and spoke fluent Navajo. However, his willingness to seize Navajo sheep revealed a remarkable cultural ignorance.

Sheep, though brought to the southwest by the Spanish, are an integral part of Navajo culture.⁴ Part of the cultural significance of sheep is their food value. Seize a family’s couch, and they will be less comfortable. Seize a family’s sheep, and they may go hungry.⁵ This was particularly true during the era of the Williamses’ dispute as there were few paved roads on the Navajo Nation, and the exclusive source of goods were federally approved Indian traders like Lee.⁶

Lee’s state court action represented another colonial assault on the Navajo Nation and its sheep. The Navajo were ultimately forced to enter a treaty with the United States because Kit Carson sabotaged their food supply, including slaughtering thousands of sheep.⁷ The federal government killed 50,000 more Navajo sheep and other livestock during the New Deal. Unlike Carson’s butchery, the federal government’s sheep culling was done to prevent overgrazing on the Navajo Reservation. Federal officials feared too many sheep would cause soil erosion and jeopardize the Hoover Dam by causing silt to build up behind it.⁸ The United States compensated Navajo for their livestock at a below-market rate. Navajos who refused to relinquish their sheep were jailed. Exacerbating the toll of surrendering a cultural symbol and source of livelihood, federal officials killed the sheep in front of their owners’ eyes then left the meat to rot. This was a senseless outrage to the Navajo.⁹

With their flocks diminished, numerous Navajo families experienced financial hardship and were forced from shepherding into wage labor. Jobs were available during World War II, but the war’s end left many Navajo unemployed.¹⁰ Amplifying the ills of poverty, blizzards and droughts pummeled the reservation soon after the war. These disasters caused some Navajo to starve and freeze.¹¹ This made Navajo families depend on credit from federally authorized Indian traders. Using the Arizona court system to seize the Williamses’ sheep was the embodiment of an outside government attempting to exterminate the Navajo people.¹²

The Williamses fought back by challenging the Arizona court’s jurisdiction over the debt. Due to the implications for tribal sovereignty, the Navajo Nation paid for the Williamses’ lawyer.¹³ While the case was pending, Lee sought permission to sell the sheep as the cost of maintaining them was more than they were worth. The Williamses objected, but the state court granted Lee’s request. Eleven sheep were sold, and more than enough money to pay off the Williamses’ debt was generated. However, the county sheriff claimed the surplus. The Williamses had lost eleven sheep even before the case had been decided.¹⁴ When the state court cases concluded, the Williamses lost at both the trial court and the Arizona Supreme Court.¹⁵

The United States Supreme Court disagreed with the Arizona courts in its 1959 opinion in Williams v. Lee.¹⁶ Justice Hugo Black opened his unanimous opinion by summarizing Worcester v. Georgia and describing the case as “one of [Chief Justice John Marshall’s] most courageous and eloquent opinions.”¹⁷ Acknowledging that Georgia refused to obey the decision and federal Indian policy has fluctuated over the years, Justice Black stated, “[T]he basic policy of Worcester has remained.”¹⁸ Justice Black explained “the internal affairs of the Indians”¹⁹ were a purely tribal matter and state authority over reservations exists exclusively by congressional decree. Furthermore, Justice Black pointed out that Congress has “encouraged tribal governments and courts to become stronger and more highly organized.”²⁰ Justice Black believed the exercise of state jurisdiction over reservations would frustrate federal policy. This rationale led Justice Black to conclude:

Essentially, absent governing Acts of Congress, the question has always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them.

Congress has also acted consistently upon the assumption that the States have no power to regulate the affairs of Indians on a reservation.²¹

In this short but powerful opinion, Justice Black reversed the Arizona courts.²²

Despite prevailing at the Supreme Court, the Williamses were never compensated for the deprivation of their sheep.²³ Still, Williams remains one of the greatest affirmations of tribal sovereignty in Supreme Court history. Even during the termination era, the Court in Williams recognized tribes had always been regarded as separate and independent governments.²⁴ Williams affirmed the foundational principle espoused in Worcester v. Georgia – state authority ends where Indian country begins.²⁵

Williams v. Lee gave legal force to a brewing social movement. The federal government’s Indian relocation policy caused immense hardship by removing Indians from their tribes; however, relocation to urban areas also led to the formation of a pan-Indian identity. That is, Indians from diverse tribes were able to share their experiences and unite on common issues, like racial discrimination and economic opportunity. Increased Indian advocacy coincided with the ongoing civil rights movement, which brought attention to injustices against all racial minorities. However, the push for Indian rights was about more than racial justice – it was about tribal sovereignty. The Miccosukee Tribe of Florida made this clear by engaging in international diplomacy with a United States’ Cold War enemy.

10.2 Buffalo Tiger and Fidel Castro

The Miccosukee have a long history in what is the present-day state of Florida. Like countless Miccosukee before him, Mostaki²⁶ Tiger was born in the Everglades in March of 1920.²⁷ Tiger grew up speaking Mikasuki,²⁸ as the tribe had little contact with the outside world until the Tamiami Trail was built through the Everglades in 1928.²⁹ The Trail brought economic opportunities along with white culture.³⁰ As Tiger got older, he spent time at a local commercial village.³¹ Tiger took a job as a housepainter where he learned English,³² and also played sports with white children. The non-Indians could not pronounce Mostaki, so they decided to give him a nickname. He earned the moniker “Buffalo” because of his running style.³³ Before long, everyone called him “Buffalo.”³⁴

By the 1950s, the federal government threatened to terminate the Miccosukee and the related Florida Seminoles.³⁵ The tribes joined together and successfully opposed termination. Nevertheless, the United States collectively recognized both tribes as the Seminole Tribe of Florida in 1957.³⁶ As far as the United States was concerned, the Miccosukee were part of the Seminole Tribe rather than a separate sovereign.³⁷ The Miccosukee opposed the consolidation.

Buffalo Tiger immediately led a formal separation from the Seminole, and Florida recognized the Miccosukee as a separate tribe in 1957.³⁸ However, the United States still refused to acknowledge the Miccosukee. When the United States denied the Miccosukee recognition, Buffalo Tiger attempted to reaffirm the tribe’s colonial era treaty rights by meeting with the British and Spanish embassies.³⁹ His effort failed.

Rather than give up, Buffalo Tiger turned to Cuba in 1959.⁴⁰ The communist Castro regime had seized power from the United States-backed Batista regime less than a year earlier,⁴¹ and it gladly accepted the opportunity to host a Miccosukee delegation.⁴² Tiger personally met with Fidel Castro and asked Castro to recognize the Miccosukee.⁴³ Castro told Tiger he recognized the Miccosukee; furthermore, Castro guaranteed the Miccosukee lands in Cuba if the United States would not acknowledge Miccosukee sovereignty.⁴⁴ Castro then presented the Miccosukee delegation with a document honoring “the perseverance of your indomitable and freedom-loving people …”⁴⁵

The Miccosukee’s Cuban expedition was a public relations nightmare for the United States. The United States had long been uncomfortable with communist nations highlighting its discriminatory treatment of racial minorities. Hence, the Miccosukee turning to communist Cuba to secure rights in the United States was a national embarrassment.⁴⁶ As soon as the Miccosukee returned to Florida, Tiger recounted, “[T]here were all kinds of phone calls from Washington. The government started dealing with us seriously then.”⁴⁷ The United States promised to reassess the tribe’s recognition if it severed ties with Cuba,⁴⁸ and in 1962, the United States officially recognized the Miccosukee as an Indian tribe.⁴⁹ Buffalo Tiger was elected the tribe’s chairman and served in this capacity for twenty-four years.⁵⁰ He would go on to become one of the most transformative tribal leaders in United States’ history.⁵¹

10.3 Indians in the Great Society

Indian issues had reached the national stage by 1960 as Senator John F. Kennedy appealed to the president of the Association of American Indian Affairs that year. Kennedy wrote:

As stated in the platform, my administration would see to it that the Government of the United States discharges its moral obligation to our first Americans by inaugurating a comprehensive program for the improvement of their health, education, and economic well-being. There would be no change in treaty or contractual relationships without the consent of the tribes concerned. No steps would be taken by the Federal Government to impair the cultural heritage of any group. There would be protection of the Indian land base, credit assistance, and encouragement of tribal planning for economic development.⁵²

Kennedy’s campaign succeeded as he was elected president by a slim margin over Richard Nixon, the sitting Republican vice president.⁵³ Tragically, President Kennedy was assassinated before he was able to focus on Indian policy.⁵⁴

Lyndon Baines Johnson succeeded Kennedy as president and championed many of Kennedy’s policy proposals.⁵⁵ Few presidents have been as effective at passing legislation as President Johnson. His Great Society agenda included Medicaid, Medicare, economic development programs, and the Civil Rights Act. Johnson’s Great Society, however, largely neglected Indian country, and Indians let him know.⁵⁶ In 1966, the president of the Mescalero Apache Tribe, Wendell Chino, sent President Johnson a letter requesting a treaty rights conference.⁵⁷ The Johnson administration responded positively to the proposal and developed a number of reform proposals in 1967. Nonetheless, Indian country soundly rejected the reforms because the policies were devised without tribal input.⁵⁸

On March 6, 1968, President Johnson gave a speech to Congress⁵⁹ solely devoted to Indian Affairs – something no sitting president had ever done.⁶⁰ Johnson noted the past injustices against Indians and presented data revealing how far Indians lagged behind other Americans on most socioeconomic measures, including a twenty-year gap in life expectancy between the general population and Indians. Johnson also noted Indians had an unemployment rate in excess of ten times the national average. Johnson declared, “No enlightened Nation, no responsible government, no progressive people can sit idly by and permit this shocking situation to continue.”⁶¹ Thus, Johnson eschewed termination and paternalism in favor of “a policy of maximum choice for the American Indian: a policy expressed in programs of self-help, self-development, self-determination.”⁶² Johnson claimed his efforts to improve Indian welfare were in the best interest of the United States as a whole.⁶³ Johnson outlined several initiatives designed to improve Indian welfare. One was controversial: the Indian Civil Rights Act (ICRA).⁶⁴

Tribes’ existence as pre-constitutional sovereigns meant they were not bound by the Constitution because tribes were not parties to it. Thus, tribes surrendered no sovereignty at the Constitutional Convention and were not obligated to ensure the same rights as the federal government. Although some tribal governments had adopted Bill of Rights-type protections independently, most had not. Consequently, tribal governments were not required to afford persons within their borders the fundamental rights Americans enjoy outside of Indian country. While there were examples of tribal abuse, hearings on the ICRA revealed the primary violators of Indian rights were the state and federal governments.

Indians appreciated civil rights; however, they found the premise behind ICRA ironic. For years, non-Indian governments had violated Indians’ rights and non-Indian officials were still abusing Indian rights. Nonetheless, Johnson and Congress were only concerned about tribal malfeasance. Irony aside, ICRA was a federal imposition of western norms on Indigenous justice systems. The most noteworthy differences between ICRA and the Bill of Rights are the First and Second Amendments. ICRA does not contain an Establishment Clause because a handful of tribes have nonsecular governments; accordingly, an Establishment Clause would have destroyed their governments. ICRA also does not ensure Indians have the right to bear arms, perhaps because, as the Supreme Court would note decades later, one of the Second Amendment’s purposes was to ensure Americans could defend themselves against Indians.⁶⁵ Additionally, ICRA greatly circumscribed tribal criminal authority by limiting the maximum penalty a tribe could issue in a criminal case to six months in jail and a $500 fine. As a result, ICRA forced tribes to rely on external governments to prosecute serious crimes on reservations because six months in jail is too lenient a punishment for serious offenses like rape and murder.

10.4 Tribal Self-Determination

Johnson was succeeded by Richard Milhous Nixon. Nixon served as President Dwight Eisenhower’s vice president, and the Eisenhower administration oversaw the worst of the United States’ tribal termination policies.⁶⁶ Accordingly, Indian country did not have high hopes for Nixon. Despite this inauspicious background, no president has done more to support tribes’ existence as separate governments than Nixon.⁶⁷

There are two theories why Nixon actively supported tribal sovereignty. One possible reason is Nixon was a Quaker, and Quakers have a long history of respecting Indian rights.⁶⁸ However, Nixon’s college football coach was likely the key factor in Nixon’s passion for tribal sovereignty. Nixon always wanted to play tackle. While this is a perfectly noble goal, Nixon faced a significant obstacle – he only weighed 175 pounds.⁶⁹ No coach gave him a chance to pursue his dream of being a lineman – that is, until the coach at Whittier College, Wallace Newman, gave him an opportunity. Nixon never made the team, but he did serve as a reserve tackle.⁷⁰ Owing to his association with the team, Nixon developed an abiding respect for Newman, stating in his memoir:

I think I admired him more and learned more from him than any other man aside from my father. He drilled into me a competitive spirit and the determination to come back after you have been knocked down or after you lose. He also gave me an acute understanding that what really matters is not a man’s background, his color, his race, or his religion, but only his character.⁷¹

Newman was an Indian.

Newman was born on the Luiseno Indian Reservation in La Jolla, California in 1902.⁷² His given name was Jose, but his aunt changed it to Wallace in hopes of reducing the prejudice he would face. Newman earned a football scholarship to the University of Southern California and served as the team captain, where he earned the nickname “Chief.” An injury ruined his chances of playing professional sports, so he turned to coaching. He started at the high school level and won several championships. Whittier College then hired him to serve as head coach of its football team.⁷³

Newman was successful at Whittier but never got a chance to coach in the National Football League (NFL) although both of his successors, George Allen and Don Coryell, would go on to NFL careers.⁷⁴ Newman was an Indian;⁷⁵ it was the 1930s; and the color barrier was real. After the legendary Fritz Pollard was fired from his NFL coaching position in 1925, every NFL head coach was white until 1979.⁷⁶ Thus, Newman was stuck at Whittier, a Quaker institution, no matter his merit.⁷⁷ Nixon was not willing to ignore this injustice.

Addressing Congress in a July 1970 Special Message on Indian Affairs,⁷⁸ Nixon forever changed the course of federal Indian policy. Nixon began his speech by stating, “The first Americans – the Indians – are the most deprived and most isolated minority group in our nation. On virtually every scale of measurement – employment, income, education, health – the condition of the Indian people ranks at the bottom.”⁷⁹ He said these statistics were a result of “centuries of injustice,”⁸⁰ and “[e]ven the Federal programs which are intended to meet [Indian] needs have frequently proved to be ineffective and demeaning.”⁸¹ Despite the hardships, Nixon said Indians have made “enormous contributions to this country.”⁸² Nixon rejected both termination and paternalism, declaring:

It is long past time that the Indian policies of the Federal government began to recognize and build upon the capacities and insights of the Indian people. Both as a matter of justice and as a matter of enlightened social policy, we must begin to act on the basis of what the Indians themselves have long been telling us. The time has come to break decisively with the past and to create the conditions for a new era in which the Indian future is determined by Indian acts and Indian decisions.⁸³

Though his speech used “Indian,” Nixon clearly distinguished between Indians as a racial minority and citizens of sovereign tribal governments. This is evidenced by Nixon taking immediate action to fortify tribal governments.

Indeed, the Nixon administration took numerous steps to expand tribal sovereignty. One of the most consequential was restoring the Blue Lake to Taos Pueblo. Blue Lake had featured prominently in Taos Pueblo religion for ages.⁸⁴ In addition to its spiritual significance, Taos Pueblo held title to thousands of acres encompassing Blue Lake as recognized by Spain and Mexico, and the United States recognized Taos Pueblo’s title in the Treaty of Guadalupe Hidalgo.⁸⁵ Despite their clear property rights, President Theodore Roosevelt took the Blue Lake from Taos Pueblo and added it to the Carson National Forest. Taos Pueblo received no compensation for the taking of its sacred Blue Lake. For years, Taos sought to regain Blue Lake. Nixon answered their call.

Six months after his address to Congress, Nixon signed bipartisan legislation returning Blue Lake to Taos Pueblo. During the signing ceremony, Nixon explained:

So I think that in this Christmas season to sign this particular bill which, as I said, might be interpreted as a gift in the Christmas season but actually simply is the rectifying of an injustice, I can’t think of anything more appropriate or any action that could make me more proud as President of the United States.⁸⁶

Nixon noted restoration of Blue Lake to Taos Pueblo was a victory for religious freedom for all Americans. The restoration of Blue Lake marked the first time the United States had returned lands to a tribe.⁸⁷

Nixon did not stop at Blue Lake. To help resolve the long-running grievances of Alaska Natives, Nixon supported and signed the Alaska Native Claims Settlement Act in 1971 (ANCSA).⁸⁸ ANCSA granted Alaska Natives more than forty million acres of land in fee simple plus approximately one billion dollars for natural resource deprivations. It also created twelve regional corporations with Alaska Natives serving as the shareholders in the corporations.⁸⁹ Nixon re-recognized tribes that had been terminated. He advocated for and signed legislation to increase economic opportunities for Indians and improve access to healthcare for Indians.⁹⁰ Nixon’s boldest Indian policy proposition provided tribes with the authority to assume total control of all federal Indian programs.⁹¹ Due to the Watergate Scandal, Nixon resigned before he could see his Indian policy agenda through.⁹²

Nixon’s vision of placing federal Indian programs under tribal control largely came to fruition with the Indian Self-Determination and Education Assistance Act of 1975.⁹³ Congress passed the Act because it found federal policies had harmed Indian development, and “the Indian people will never surrender their desire to control their relationships both among themselves and with non-Indian governments, organizations, and persons.”⁹⁴ Accordingly, the Act made it federal policy to solicit Indian input on programs intended to serve Indians. The Act further proclaimed the United States’ commitment to aid “Indian tribes in the development of strong and stable tribal governments, capable of administering quality programs and developing the economies of their respective communities.”⁹⁵ As a result of the Act, tribes can contract with the federal government and take over federal services the United States previously performed in tribal communities. Studies have consistently shown tribes significantly outperform the federal government when they engage in self-governance contracts. The reason: Tribes are accountable to the tribal citizenry while unelected federal bureaucrats are not.

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Tribes survived centuries of hardship, including policies aimed at the outright extermination of their governments and cultures. Since 1975, every president and Congress have embraced tribal self-determination. Several pieces of legislation supporting tribes ensued, such as recognizing tribes have the same authority as states under federal environmental statutes, protecting Indian religious freedom, and granting tribes federal recognition. Notwithstanding, tribes still face significant, federally imposed obstacles to self-governance.