Going Back to the Beginning
In order to understand the relationship between the United States government and Native American tribes, you have to go back to where it started. I’m working my way chronologically, so this week’s focus was the 1800's and finding out what happened that made a big impact on the history of this relationship in general and what legal precedents were set.
That history begins with how tribes were treated when the English Crown was still ruling over the colonies. The king treated tribes as sovereign groups, and he bargained with and respected them as such. He tried to protect them from the anger and whims of the colonists by giving only the English government the power to make agreements with the natives. Luckily, that carried over into the new government once the Constitution was finally created. Congress was given the power to regulate commerce with tribes, and the President was given the power of treaty making (with the advice and consent of the Senate), which was a main way of how the government interacted with the tribes for many years. In the late 1700's and early 1800's, the government passed several acts known as the Trade and Intercourse Acts in order to protect the interactions between tribes and normal citizens. It left the power to control these interactions up the federal government mainly so that states and average citizens could not violate the tribal rights. This set of acts was an important first step for the government to take in dealing with the Native Americans, but the real legal importance in the 1800s came from a trio of Supreme Court cases under the Marshall court. I’ll discuss the context and decision of each case in my final paper, but for now I want to focus on the important legal impact each case had.
The first was Johnson v. McIntosh, which is a famous case because it established the Discovery Doctrine. The Discovery Doctrine says that when the European countries came and “discovered” this new land and colonized it, they gained a right to sovereignty over that new land, and the Unites States then inherited that sovereignty. The Native Americans already living here had a right to occupancy, but no real right of ownership over the land. The right of occupancy is overridden by the government’s sovereignty, so the tribes do not have the right to sell land as if they own it. This means the federal government is the only body that can buy or take the land. It’s a lot, I know. I take issue with the doctrine, as do many other people because of the entitled nature that disregards the indigenous people of a land.
The second important case was Cherokee Nation v. Georgia in 1831. The Supreme Court established that, yes, the American Indian tribes were states, however they were not foreign. The Court defined them as domestic dependent nations, likening the relationship to that of a ward and a guardian. This established that the government was there to help and look out for the tribes and yet they still had independence. This relationship, however, does not always mean that the government will act benevolently towards the tribes, and the loss of a level of independence could pose a threat in future issues.
The third case in the trio is Worcester v. Georgia, the case where Andrew Jackson famously proclaimed that the Court had made its decision, now it was up to them to enforce it. In the decision for Worcester, Marshall wrote that the tribes had complete sovereign power over their territory, so state law had no force on tribal land. While this is an important assertion of independence and sovereignty for the tribes, it didn’t protect them from the next few years. President Jackson ignored this decision and decided to forcefully move tribes west of the Mississippi, with the most famous removal being the Trail of Tears.
Not too many years after that, the government began setting up reservations, initially with the intention of formally separating the American Indians from non-Indians and to ensure land, but it ended up turning into a movement to “civilize” the tribes. That led to a violation of religious freedom with Christian teachings being forced upon them, often having to practice their own religions in secret in order to escape punishment from agents on the reservations, and two religious dances, the Ghost Dance and the Great Sun Dance, were outlawed. That violated the First Amendment because it violates the Free Exercise clause.
After reservations had become widespread, they were then split up by the General Allotment Act of 1887, also known as the Dawes Severality Act. This had a huge, negative impact on Native American communities, which I will go into further in my final product.
This century, though, is only the beginning of the story. As I move into the 1900's, we’ll begin to see how the groundwork that was laid affects future cases and laws, and how the treatment of tribes and their relationship with the government changes. What I love about this project so far is that I am gaining a deeper understanding of the history and legal elements, which will help me to understand the full picture at the end. That’s how my brain works; I like to know the why behind things, and by the time we get to the DAPL, I’ll know the full “why” to how we got there. It’s fascinating so far, and I’m already seeing where these legal decisions have flaws or could potentially go wrong.