Competing Visions and Invisible Treaties: The Formative Era of Federal Indian Policymaking

A comprehensive federal Indian policy failed to develop in the United States between 1776 and 1834 due to the unique and varied relationships that existed between Indian peoples, the British Crown and pre-Revolutionary War governments. This intricate question as to how the native inhabitants would be absorbed by the developing Republic stumped even the founding fathers, as evidenced by their failure to clearly define the new governments’ relationship to sovereign Indian nations in the U.S. Constitution. Consequently, the Bill of Rights and therefore citizenship became inapplicable to Native American tribes, providing an opportunity for State governments to discard previous agreements while setting the stage for a century of conflict over land and resources.

Prejudice harbored by whites towards the native inhabitants whose lands were coveted for exploitation, the legislative deficiencies of the infant government and a range of conflicting designs by individuals for the future of America, further complicated the process of incorporating, government recognized, sovereign nations within the new found government. The task of implementing such legislation fell to the Congress by decree of the U.S. Constitutions through the commerce clause affirming their duty to regulate commerce with Indian tribes. Failing to provide sufficient legislation and more importantly the funds necessary to enforce those laws designed to protect Indian tribes from the deceit and contempt of the white settler population, effectively sanctioned the practice of flouting federal laws associated with Indian populations, implicating their consent to westward expansion. However, the politics of various elements within the government made a single vision for future Indians within the boarders of the U.S. an extremely difficult problem for Congress. Viewpoints largely diverged along geographical lines of north and south because runaway slaves in southern states could find refuge in a sovereign Indian tribe. The problem of property being stolen is both ironic and destructive, adding further tension to the divisiveness already imbibed by the issue of slavery.

By the time Andrew Jackson gained the Presidency in 1828, he inherited Congress’ tendency to empower the President to manage government relations with the Indians and contour policy. Jackson capitalized upon this opportunity to discourage treating the Indians as sovereign nations, consequently using this power to placate the hostility of southern states by dispossess those Indian nations residing east of the Mississippi river. Although the Supreme Court attempted to rescind the power it had previously inferred upon states by weakening the concept of tribal sovereignty in the Cherokee Nation v. Georgia case, President Jackson refused to acknowledge the action which could have prevented the illegal removal of Cherokee in and the Trail of Tears, re-exposing the superiority complex of the young nation.

The initial foundations for dealing with India nations in the U.S. government were based upon the models left behind by British forbearers, who treated the various Indian tribes as sovereign nations. This practice was employed for both pragmatic and legal reasons. At a time when the threat posed by the superior numbers of native inhabitants required peace between the races and increased immigration required land purchases from tribes, the British acknowledged the sovereignty of Indian nations so as to gain a clear title to the land. However, settlers were also keen to enact laws that were designed to protect Indians, fearing retribution for the actions of unscrupulous traders. These two practices together were employed by the U.S. government during and after the Revolutionary War when recognizing sovereignty was essential to excising tribes from the influence of the Crown and gaining their alliances or neutrality. According to Tim Garrison in The Legal Ideology of Removal, U.S. legislators in the late eighteenth and early nineteenth centuries had to acknowledge Indian sovereignty “out of necessity,” and the pattern was first repeated during the Revolutionary war with the Delaware Treaty of 1778 (Garrison, 14). However, after the conclusion of the war, the attack on the definition of tribal sovereignty initiated the convoluted history and basis for federal Indian policy in the United States.

The initial settlers of North America were white, Christian and invariably convinced of their superiority over the Native inhabitants. Inheriting the same ideology of papal decree which incited and sanctified the Crusades against the Moors during the Middle Ages, by the same logic, the settlers considered it their duty to bring civilization to the new world, one occupied by savages. Perceiving the American Indians as barbaric race, wasting the land, a paternalistic duty to “civilize” the Indians and make the earth fruitful was bred in a majority of the population. This deep-seated belief poisoned any equality that may have emerged as a result of increasing their understanding and appreciation of the rich traditions, power structures, adaptability and merits of the various Indian nations surrounding them. Unfortunately, this attitude continues to pervade non-Indian policymaker views over two hundred years later.

Though still in a precarious state, the language employed in the treaties made pursuant to the war both placated the tribes while remaining ambiguous in their position on the issue of sovereignty. The Hopewell Treaty made in the mid-1780’s with the Cherokees, Chickasaws and Choctaws included terms that undermined tribal sovereignty, such as the agreement that they would “live under the protection of the United States and of no other sovereign,” that Congress would “have the exclusive right of regulating trade with the Indians and managing all affairs they think proper,” and language prohibiting tribes from independent action, either diplomatic or in trade relations. However, this same treaty recognized tribal borders, their right to determine who could enter or live in their territory and conceded to the power of tribal councils to penalize immigrants who impermissibly settled in their territory (Garrison, 15). One year later in the Northwest Ordinance of 1787, the language utilized by the U.S. seemed even more conciliatory towards the tribes, promising “the utmost good faith shall 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.” This would become a familiar and promise, yet the last clause reveals the true intent of the legislature to ultimately control tribes through threats of warfare if tribes did not cede the land requested from it. While the U.S. persisted in claiming control over the land on which the tribes resided, the postwar treaties and the ordinance signified the recognition that “Indian tribes retained a right of occupancy and some semblance of political autonomy” (Garrison, 15-16).

As the needs of the country altered in response to the dramatic influx of white settlers, the need for land increased the pressure upon government to legally negotiate it for them. The establishment of the War Department in 1789, created within it the Office of Indian Affairs, procuring power over the tribes by the President as commander of the military. The fact that the first formal office designed to deal exclusively with Indian affair was created in the War Department denotes the intent of legislators to use force if necessary to accomplish their goals of obtaining Indian land. While George Washington expressed his concern for a just Indian policy, he like virtually every American President that succeeded him, had seriously considered the viability of relocating the Indians beyond the geographical borders of the country. According to Ronald N. Satz in   American Indian Policy in the Jacksonian Era, Washington imagined a “Chinese wall,” Jefferson reflect on a “permanent exchange after the Louisiana Purchase, Madison considered similar efforts to pacify the Indians after the War of 1812” and Secretary of War, John C. Calhoun convinced President James Monroe to adopt a policy of removal in 1825 (Satz, 6).

Conflict on the frontiers jeopardized the harmony of the young nation prompted President Washington and his Secretary of War, Henry Knox to petition Congress to pass legislation to forestall further offenses. Francis P. Prucha’s work American Indian Policy in the Formative Years contests that when Congress responded in July 1790 with the first of a series of laws, they “gradually came to embody the basic features of federal Indian policy.” The Trade and Intercourse Act (1790) attempted to regulate trade with the Indians while protecting them from the criminal or fraudulent activities of whites, however it also restricted the liberties of Indians and their property rights by dictating that they may not sell the land to anyone other than the U.S. government, while also directing what the traders could sell. This was the beginning of a tumultuous policy that continued to erode the rights of Indians (Prucha 2, 14).

Thomas Jefferson’s presidency inaugurated a period when threats to Indian sovereignty faced the greatest attack. In Retained by the People, historian John Wunder attest that this challenge occurred with the 1800 “Act for the preservation of peace with the Indian tribes,” barring Native Americans from “discussing diplomatic options” or reproaching the U.S. government. By using the expansion of trade regulations to suppress the rights of individuals, Congress effectively neutralized the voice of Indian peoples to protest treaty violations, simultaneously denying them benefits of their political system through conference. What would normally be protected as a First Amendment right, did not apply to Indians because they were not citizens of the United State, though they were being legislated for and dictated to by the government (Wunder, 22). The Trade and Intercourse Act passed in 1802 was more permanent measure that encompassed or replaced the previous acts. While it mainly provided additional protections for Indians by increasing fines for trespass and unlicensed traders, and by making it a capital offense to murder any friendly Indian, however it also continued to prescribe what forms of trade or annuity payment could be made with them, allowing the government to force an agenda of assimilation upon tribes. The act also relied upon the honesty of appointed officials in curbing corruption in the territories and Indian country. Without the manpower allotted to supervise and check the power of Indian agents, Congresses policy was merely loquacious and superficial.

In 1803, Jefferson observed the growing aversion of tribes to yield further land cessions. That same year Jefferson wrote to William Henry Harrison, the territorial governor of Indiana, instructing him to “run influential Indians into debt to make it easier to acquire tribal lands” (Garrison, 13-14). Jefferson thwarted this reluctance by advocating the establishment of trading houses with the agenda of running the Indians into debt and generating a dependency on white goods which would render them vulnerable to the overtures of government for land cessions. Wunder believes that this “dependency then facilitated the erosion of sovereignty and encouraged the postponement of any application of the Bill of Rights to individual Native Americans wishing to retain their tribal affiliation and treaty rights” (23). Jefferson also aggressively encouraged the abandonment of hunting as a means of subsistence. While hunting required a vast terrain to sustain a stable food supply and was incompatible with the settler demands for land, agriculture he believed would “lead them to civilization” giving the two cultures common ground, prepare them to participate in government while free up land for whites (Prucha, 216).

Policies enacted under the Jefferson administration became the basis for a program of assimilation, a shift that emerged from the realization that even the full surrender of all land possessed by the Indians would not be sufficient to quell the demand of the swelling population. Assimilation thus became a policy based on coercion and fear that forced Indians to adopt white “civilized” customs or else be expelled from their homelands. Some tribes ignored white demand to conform, while others such as the Cherokee vigorously worked to incorporate white societies’ ultimatums. The second juncture of assimilation was the establishment of schools for the Indian children taught by various missionary groups. Leading the way in the field of educating the Indians, the basics of reading and writing were focused upon and the government acted through them “when it came to encourage the work by special appropriation” (Prucha, 219). However, missionaries also forged deep ties within Indian communities and provided assistance to tribes such as the Cherokee Nation who tried to use the federal government’s recognition of Indian sovereignty for treaty and land cession purposes, to prohibit the Removal Act of 1830.

The government a made a pact with the Cherokees which “solemnly guaranteed” them their existing tribal land, and reaffirmed this promise as late as 1789, however on April 24, 1802 the federal government agreed to “extinguish Indian titles to land within Georgia as soon as it could be done peaceably on reasonable terms, in return for Georgia’s cession to her claims to western lands” (Satz, 3). By the end of Jefferson’s administration, the government had made overtures to the Cherokee Nation attempting to persuade them to move across the Mississippi. While the War of 1812 commenced before an adequate land exchange could be developed, Georgian politicians would continue to lobby for Indian removal creating a wedge issue especially vehement in the south where the political battle between states rights and Federal supremacy was exacerbated by the institution of slavery. Residents bordering Indian communities coveted the land for settlement, mineral deposits, and the extension of cotton culture, but some sought removal because of the flight of fugitive slaves into Indian Territory, where they preferred to remain with their more humane Indian masters. Many southerners viewed the presence of “fugitive slaves or stolen slave property in Indian country within their state or territory as a serious threat to internal security” (Satz, 4). Southern anxiety continued to fester, as demands for the removal intensified and states began assuming federal prerogatives in an attempt to force the federal government into fulfilling its commitments.

Between 1789 and 1825, the Cherokee had made twelve treaties surrendering lands or agreeing to new boundaries, the Creeks had made eight, the Choctaws six, and the Chickasaws four, “now they wanted to be left alone,” according to Herman Viola in Thomas L. McKenny Architect of American’s Early Indian Policy, 1816-1830. President Monroe sent a message to Congress in 1825, advocating the transfer of eastern Indians across the Mississippi, so they may become civilized over time, free from corrupting “white” vices such as liquor. Yet Monroe also “recommended a system of internal government” to protect the inhabitants from invasion, realizing that if whites were permitted to impinge on Indian land again, the result would likely be the same, requiring the Indians to move (Viola, 203-4). Enforcement of federal policy hinged on the use of military force against its own citizens and was so unpalatable that the President and Congress generally preferred to fight the Indians instead of enforcing their own laws, often breaking treaties in the process. Demonstrating their irresolution only worsened the problem, prompting States to challenge federal authority on other issues as well, while dooming future attempts to prevent white encroachments on Indian lands and their ability to fulfill promises made to Indians for their lands.

A final blow to Indian sovereignty and their right to occupy eastern lands coincided with the election of Andrew Jackson to the presidency. Heretofore, Jackson claimed that the U.S. recognized tribal sovereignty because it was not strong enough to repel a large scale Indian attack. However, as Jackson became a hero in the victorious battle of New Orleans, he became confident that the young country had indeed become powerful enough to end the practice of treating with the Indians as sovereigns. Within two years of his election, “Congress adopted the Removal Act of 1830, authorizing President Jackson to negotiate cession and removal treaties” with all Indian tribes east of the Mississippi River (Garrison, 3). However, by permitting the federal bureaucracy to open unsupervised and unregulated local negotiations with eastern tribes, Congress voluntarily exposed the tribes “to fraud, coercion, deceit, and violence” (Wunder, 24).

While responses to removal varied among tribes, those that resisted such as the Sac and Fox were forced to remove after the Illinois militia and Army were enlisted to compel them. As an acculturated tribe who had worked hard for decades to meet the demands of “civilized” society, the Cherokee responded by taking the matter to the Supreme Court, where the constitutionality of Indian removal was contested.

In the Johnson v. McIntosh case of 1823, the Supreme Court under John Marshall “constructed a preliminary foundation for placing Indian tribes under the American legal system, concluding that Indian tribes possessed ownership of their homelands including the right to occupy, fish and hunt on that domain.” However, Marshall held that the United States also shared title to the land by right of discovery therefore the tribes could only sell their land to the United States. Marshall heavily influenced the three opinions rendered by the court which represent a legal trilogy for Native American existence within the union. The convoluted logic and ambiguous nature of the three are apparent in the language, “Indians were to be considered domestic, dependent nations, but they retained a distinct political nature as well as certain natural rights, rights guaranteed to other American by the Bill of Rights and a tribal immunity from state law” (Wunder, 27) Yet, Georgia set off a wave of legislation in southern states aimed at extended state laws over Indian territory in an attempt to force out Indians both before and after the Removal Act was passed. In 1831, the Cherokee brought a suit against the state of Georgia, claiming the state had acted illegally by extending its laws over Indian land assured by several treaties. However, the political turmoil surrounding the issue impelled the court to refuse the assumption of jurisdiction and find for Georgia.

This misstep was reflected upon by Marshall who was influenced by the rhetoric of Justice Smith Thompson, who arguing that the Supreme Court did have jurisdiction in the case, creating a set of standards for defining “what constituted a sovereign nation,” concluded that the Cherokee Nation did fit that definition and ultimately convincing Marshall. Thompson remarked upon the attempts of Cherokees to model their society after the United States. They successfully devised a written language, adopted an agricultural economy and composed a Constitution similar to that of the U.S., thus he maintained that any attack on this development was a strike at the fundamentals of American republicanism, the Constitution and the Bill of Rights. Marshall was listening and a year later in the Worcester v. Georgia case, reversed his opinion which had limited tribal sovereignty by declaring Indian nations as “distinct, independent political communities, retaining their original natural rights.” Finding that Georgia had violated the treaties between the Cherokee and U.S. government, Marshall declared that the state had acted unconstitutionally simultaneously violating Cherokee sovereignty (Wunder, 26-7). However, President Jackson vehemently disagreed with the Worcester decision and sought to end the practice of recognizing the tribes as sovereign nations by refusing to impose the ruling upon Georgia. This position was further buttressed by southern state hostility towards the central government, as he was putting down the South Carolina nullification movement at the time the Worcester decision emerged. Nevertheless, it is President Jackson who is ultimately deemed responsible for the tragic loss of life incurred by removal in what the history books call the Trail of Tears.

Between 1830 and 1835, three state supreme courts in the South contaminated the courts with a long tradition of anti-Indian legal prejudice which formally justified the legality of expropriating Native American land. In Georgia v. Tassels (1830), Caldwell v. Alabama (1831) and Tennessee v. Forman (1835), the southern courts produced assessments that defied those argued by Marshall in Worcester (Garrison, 5). Those decisions “filled the vacuum left by the federal government’s failure to enforce Worcester” (Garrison, 238). Finally, after most tribes had already removed to Indian Territory west of the Mississippi river, Congress passed a comprehensive codification of federal Indian policy with the Trade and Intercourse Act of 1834. This landmark legislation was the result of perpetual requests by Indian agents for a simplified code and the need for reform in order to civilize the Native Americans. However, most sections were merely regurgitated old statutes except for the fact that Congress relaxed the passport requirement, which had stemmed the influx of white settlers in Indian country, thus facilitating future conflicts with both known and new tribes over new lands (Wunder, 23).

Throughout the formative era of American-Indian relations, the effect of white settlement in America was to press the native inhabitants westward, erode their populations with disease, and debase their way of life. Federal policy reflected the pragmatic needs of the country at a time when the young government was financially and militarily weak. As the population grew and the country’s institutions began to mature, federal Indian policy started to reflect the prospect of a vast country stretching from the Atlantic to the Pacific Ocean. As this ideal solidified and the personal interests of individuals began to overwhelm the system, many political actors recognized the problem Indian sovereignty posed. For the southern states the Indian problem was heightened by the issue of tribal sovereignty, which frustrated the plans of a majority of white citizens, envisioning a society “ethnically cleansed of Indians, fueled by African American labor and ruled by whites” (Garrison, 238). Northern states, free of the stresses slavery wrought upon southern masters, lobbied for some resemblance of fairness for Indians. In spite of their range differences, patriarchal ideology aroused the sentiments of most, believing that segregation was the best policy. Ultimately their conflicting postures clashed in Congress, precluding the adoption of a systematized internal government to prevent a recurrent situation west of the Mississippi. While the Worcester case did create some legal hurdles for future government legislators involving tribal sovereignty, the policy that has since developed, was invariably disabled by the prejudices and events that marked the formative era of federal Indian policy.

 

Work Cited

Garrison, Tim A. The Legal Ideology of Removal: The Southern Judiciary and the Sovereignty of Native American Nations. Athens: University of Georgia Press, 2002.

Prucha, Francis P. American Indian Policy in the Formative Years: The Indian Trade and Intercourse Acts, 1790-1834. Cambridge: Harvard University Press, 1962.

Satz, Ronald N. American Indian Policy in the Jacksonian Era. Lincoln: University of Nebraska Press, 1975.

Viola, Herman J. Thomas L. McKenny Architect of American’s Early Indian Policy, 1816-1830. Chicago: The Swallow Press Inc., 1974.

Wunder, John R. Retained by the People: A History of American Indians and the Bill of Rights. New York: Oxford University Press, 1994.

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