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Native Americans and the Law
| Extermination and Conquest | |
| 1778 - 1850 | Control by Treaties |
| 1850 - 1924 | Forced Acculturation |
| 1925 - 1950 | Cultural Pluralism |
| 1950 - 1960 | Termination Period |
| 1960 - 1990 | Development and Self-rule |
| 1990 - | Attack on Sovereignty and Treaties |
| 1954 - Present | Convergent of Minority Group Interests Civil Rights, Affirmative Action, Reentrenchment |
| 1854 | Treaty with the Oto and Missouri, 1854. March 15, 1854. 10 Stat 1038 |
| Treaty with the Omaha, 1854. March 16, 1854. 10 Stat 1043 | |
| Treaty with the Delawares, 1854. May 6, 1854. 10 Stat 1048 | |
| Treaty with the Iowa, 1854. May 17, 1854. 10 Stat 1069 | |
| Treaty with the Sauk and Foxes Of Missouri, 1854. May 18, 1854. 10 Stat 1074 | |
| Treaty with the Kickapoo, 1854. May 18, 1854. 10 Stat 1078 | |
| Treaty with the Kaskaskia, Peoria, Etc., 1854. May 30, 1854. 10 Stat 1082 | |
| Treaty with the Miami, 1854. June 5, 1854. 10 Stat 1093 | |
| Treaty with the Chippewa, 1854. September 30, 1854. 10 Stat 1109 | |
| Treaty with the Rogue River, 1854. November 15, 1854. 10 Stat 1119 | |
| 1855 | Treaty with the Kalapuya, Etc., 1855. January 22, 1855. 10 Stat 1143 |
| Treaty with the Wyandot, 1855. January 31, 1855. 10 Stat 1159 | |
| Treaty with the Chippewa, 1855. February 22, 1855. 10 Stat 1165 | |
| Treaty with the Winnebago, 1855. February 27, 1855. 10 Stat 1172 | |
| Treaty with the Wallawalla, Cayuse, Etc., 1855. June 9, 1855. 12 Stat 945 | |
| Treaty with the Yakima, 1855. June 9, 1855. 12 Stat 951 | |
| Treaty with the Nez Perces, 1855. June 11, 1855. 12 Stat 957 | |
| Treaty with the Choctaw and Chickasaw, 1855. June 22, 1855. 11 Stat 611 | |
| Treaty with the Ottawa and Chippewa, 1855. July 31, 1855. 11 Stat 621 | |
| Treaty with the Chippewa Of Saginaw, Etc., 1855. August 2, 1855. 11 Stat 633 | |
| Treaty with the Capote Band Of Utahs In New Mexico, August 8, 1855. | |
| Treaty with the Mohuache Band Of the Utahs, In New Mexico, September 11, 1855 | |
| Treaty with the Blackfeet, 1855. October 17, 1855. 11 Stat 657 | |
| Treaty with the Molala, 1855. December 21, 1855. 12 Stat 981 | |
| 1856 | Treaty with the Stockbridge and Munsee, 1856. February 5, 1856. 11 Stat 663 |
| Treaty with the Menominee, 1856. February 11, 1856. 11 Stat 679 | |
| Treaty with the Creeks, Etc., 1856. August 7, 1856. 11 Stat 699 | |
| 1857 | Treaty with the Pawnee, 1857. September 24, 1857. 11 Stat 729 |
| Treaty with the Seneca, Tonawanda Band, 1857. Nov. 5, 1857. 11 Stat 735 | |
| 1858 | Treaty with the Ponca, 1858. March 12, 1858. 12 Stat 997 |
| Treaty with the Yankton Sioux, 1858. April 19, 1858. 11 Stat 743 | |
| Treaty with the Sioux, 1858. June 19, 1858. 12 Stat 1031 | |
| Treaty with the Sioux, 1858. June 19, 1858. 12 Stat 1037 | |
| 1859 | Treaty with the Winnebago, 1859. April 15, 1859. 12 Stat 1101 |
| Treaty with the Chippewa, Etc., 1859. July 16, 1859. 12 Stat 1105 | |
| Treaty with the Sauk and Foxes, 1859. October 1, 1859. 15 Stat 467 | |
| Treaty with the Kansa Tribe, 1859. October 5, 1859. 12 Stat 1111 | |
| 1860 | Treaty with the Delawares, 1860. May 30, 1860. 12 Stat 1129 |
| 1861 | Treaty with the Arapaho and Cheyenne, 1861. February 18, 1861. 12 Stat 1163 |
| Treaty with the Sauk and Foxes, Etc., 1861. March 6, 1861. 12 Stat 1171 | |
| Treaty with the Potawatomi, 1861. November 15, 1861. 12 Stat 1191 | |
| 1862 | Treaty with the Kickapoo, 1862. June 28, 1862. 12 Stat 1249 |
| Act July 5, 1862, c. 135, 1, 12 Stat. 528; (codified at 25 U.S.C.A. S 72) (Abrogation of Treaties- "Whenever the tribal organization of any Indian tribe is in actual hostility to the United States, the President is authorized, by proclamation, to declare all treaties with such tribe abrogated by such tribe if in his opinion the same can be done consistently with good faith and legal and national obligations"). | |
| 1863 | Treaty with the Chippewa Of the Mississippi and the Pillager and Lake Winnibigoshish Bands, 1863. March 11, 1863. 12 Stat 1249 |
| Treaty with Great and Little Osages, 1863. August 29, 1863 | |
| Treaty with Mixed Bands Of Bannacks and Shoshonees, October 14, 1863 October 14, 1863 | |
| 1864 | Treaty with the Chippewa, Mississippi, and Pillager and Lake Winnibigoshish Bands, 1864. May 7, 1864. 13 Stat 693 |
| 1865 | Agreement (treaty) with the Cherokee and Other Tribes In the Indian Territory, 1865. September 13, 1865. |
| Treaty with the Osage, 1865. September 29, 1865. 14 Stat 687 | |
| Treaty with the Cheyenne and Arapaho, 1865. October 14, 1865. 14 Stat 703 | |
| Treaty Between the United States and the Blackfoot Nation Of Indians, Etc., November 16, 1865. | |
| 1866 | Treaty with the Seminole, 1866. March 21, 1866. 14 Stat 755 |
| Treaty with the Chippewa - - Bois Fort Band, 1866. April 7, 1866. 14 Stat 765 | |
| Treaty with the Choctaw and Chickasaw, 1866. April 28, 1866. 14 Stat 769 | |
| Treaty with the Creeks, 1866. June 14, 1866. 14 Stat 785 | |
| Treaty with the Delawares, 1866. July 4, 1866. 14 Stat 793 | |
| Treaty with Crow Nation Of Indians, Montana, July 16, 1866. | |
| Treaty with the Assiniboines, July 18, 1866 July 18, 1866. | |
| Treaty with the Cherokee, 1866. July 19, 1866. 14 Stat 799 | |
| Agreement At Fort Berthold, 1866. July 27, 1866. | |
| 1867 | Treaty with the Sauk and Foxes, 1867. February 18, 1867. 15 Stat 495 |
| Treaty with the Seneca, Mixed Seneca and Shawnee, Quapaw, Etc., 1867. February 23, 1867. 15 Stat 513 | |
| Treaty with the Potawatomi, 1867. February 27, 1867. 15 Stat 531 | |
| Agreement (treaty) with the Shawnee Tribe Of Indians, 1867. March 2, 1867. | |
| Treaty with the Kiowa and Comanche, 1867. October 21, 1867. 15 Stat 581 | |
| Treaty with the Cheyenne and Arapaho, 1867. October 28, 1867. 15 Stat 593 | |
| 1868 | Treaty with the Ute, 1868. March 2, 1868. 15 Stat 619 |
| Treaty with the Sioux - - Brule, Oglala, Miniconjou, Yanktonai, Hunkpapa, Blackfeet, Cuthead, Two Kettle, Sans Arcs, and Santee - - and Arapaho, 1868. April 29, 1868. 15 Stat 635 | |
| Treaty with the Crows, 1868. May 7, 1868. 15 Stat 649 | |
| Treaty with the Northern Cheyenne and Northern Arapaho, 1868. May 10, 1868, 15 Stat 655 | |
| Treaty with the Navaho, 1868. June 1, 1868. 15 Stat 667 | |
| Treaty with the Eastern Band Shoshoni and Bannock, 1868. July 3, 1868. 15 Stat 673 | |
| Agreement (treaty) with the Gros Ventres Tribe Of Indians, 1868. July 13, 1868. | |
| Agreement (treaty) with the River Crow Tribe Of Indians, 1868. July 15, 1868. | |
| Treaty with the Blackfoot, Etc., 1868. September 1, 1868. | |
| Treaty with Shoshones, Bannacks, and Sheepeaters, September 24, 1868 September 24, 1868. [Back] |
| Forced Acculturation | |
| Date | Law/Policy |
| 1871 | Act of Mar. 3, 1871, ch. 120, S 3, 16 Stat. 544, 570. 566 (codified at 25 U.S.C. S 71 (1994)) (Congressional act forbad further treaties with Native American tribes - Tribes became wards of the government). |
| 1887 | Dawes Severalty Act (General Allotment Act) |
| 1896 | Ward v. Race Horse, 163 U.S. 504 (1896). |
| 1898 | Curtis Act ended tribal governments of tribes refusing allotment |
| 1924 | Snyder Act made Native Americans citizens of the United States [Back] |
| The New Deal and Cultural Pluralism | |
| Date | Law/Policy |
| 1934 | Indian Reorganization Act (Wheeler-Howard Act |
| Johnson-O'Malley Act | |
| 1946 | Indian Claims Commission established |
| 1948 | Native Americans granted right to vote Arizona and New Mexico |
| 1950 | US Court of Claims awarded over $30 million to Colorado Utes for land illegally taken from them [Back] |
| Termination Period | |
| Date | Law/Policy |
| 1952 | Relocation Program |
| 1953 | Congressional Act enabled non reservation Native Americans to buy alcoholic beverages |
| House Concurrent Resolution 108 "Termination Policy" [Back] | |
| Development and Self Rule | |
| Date | Law/Policy |
| 1960 | Area Redevelopment Act |
| 1965 | Elementary and Secondary Education Act |
| Senate Special Subcommittee on Indian Education | |
| Voter Registration Act | |
| 1967 | Great Society Program |
| 1968 | "Indian Civil Rights Act" |
| 1970 | President Richard Nixon's special message to Congress advocated Native American self-determination |
| Congressional Act returned land to Taos Pueblos of New Mexico | |
| 1971 | Alaska Native Claims Settlement Act |
| 1972 | Indian Education Act |
| 1973 | Meminee Restoration Act revoked termination of the Menominee and restored tribal status |
| 1974 | Indian Finance Act |
| 1975 | Indian Self-Determination and Education Assistance Act of 1975 |
| 1976 | Indian Health Care Improvement Act provided funds for hospital renovation and scholarships to enter Indian Health Service |
| 1978 | Educational Amendments Act - Title XI |
| Tribally Controlled Community College Assistance Act | |
| Indian Child Welfare Act | |
| Out of Court settlement resulted in Passamaquoddy and Penobscot tribes in main being given money and land in return for land taken illegally | |
| American Indian Religious Freedom Act of 1978 | |
| 1979 | Supreme Court upheld fishing rights claims of Native American tribes in the state of Washington |
| 1980 | Native American tribes in Main received a settlement of their land claims |
| Interagency Indian Taskforce | |
| 1983 | Private sector's role in economic development of reservations stressed "Indian Enterprise Zones" announced |
| Department of Health and Human Services set New eligibility rules for people receiving medical treatment from Indian Health Services | |
| 1986 | American Indian, Alaska Native, and Native Hawaiian Culture and Art Development Act of 1986 |
| 1989 | Brendale v. Confederated Yakima Indian Nation |
| 1990 | Congress passed Legislation to "encourage and support the use of Native American languages in schools |
| Employment Division v. Smith | |
| Native American Graves Protection and Repatriation Act of 1990 (NAGPRA) | |
| 1991 | Experiment in self-government [Back] |
| 1993 | Reclamation's Indian Trust Asset Policy of 1993 (ITA) |
| 1994 | Indian Dams Safety Act of 1994 |
| Attack on Soverenity and Treaties | |
| Date | Law/Policy |
| [Back] | |
The Northwest Ordinance of July 13, 1787 :
"(t)he utmost good faith shall always be observed towards the Indians; their land 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 . . . . "
The Trade and Intercourse Act of 1790
Trade and Intercourse Act, S 1.
"(N)o person shall be permitted to carry on any trade or intercourse with the Indian tribes, without a license of that purpose under the hand and seal of . . . such . . . person as the President of the United States shall appoint for that purpose . . . .").
Trade and Intercourse Act, S 4.
(N)o sale of lands made by any Indians, or any nation or tribe of Indians within the United States, shall be valid to any person or persons, or to any state . . . unless the same shall be made and duly executed at some public treaty, held under the authority of the United States.
Ward v. Race Horse, 163 U.S. 504 (1896).
Under equal footing doctrine, Wyoming has right to apply its laws, which place limits on the killing of game, to off reservation hunting by a member of the Bannock tribe, despite Bannock tribe's pre statehood treaty right to hunt "upon the unoccupied lands of the United States"
Non intercourse Act, FN184. Act of Mar. 1, 1793, ch. 19, S 8, 1 Stat. 329, 330.
No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution. Every person who, not being employed under the authority of the United States, attempts to negotiate such treaty or convention, directly or indirectly, or to treat with any such nation or tribe of Indians for the title or purchase of any lands by them held or claimed, is liable to a penalty of $1,000. The agent of any State who may be present at any treaty held with Indians under the authority of the United States, in the presence and with the approbation of the commissioner of the United States appointed to hold the same, may, however, propose to, and adjust with, the Indians the compensation to be made for their claim to lands within such State, which shall be extinguished by treaty.
Indian Removal Act, 4 Stat. 411 (1830).
In 1830, Congress passed the Indian Removal Act in order to relocate eastern tribes to the West. Congressional control over the Native American tribes expanded with the enactment of laws emphasizing the "education and civilization" of Indian children in order to assimilate Native American culture into that of the majority culture.
Worcester v. Georgia, 31 U.S. 515 (1832).
In Worcester, the Court voided a piece of Georgia legislation that contravened the Cherokee nation's right of tribal sovereignty. The Court interpreted treaty language stating that the United States would be "managing all [the tribes'] affairs," to refer primarily to managing trade with Indians and to exclude Indian self- government. The Court further explained that because the Cherokee nation was under the "protection of the United States," the tribe was receiving the protection of one more powerful but not abandoning their national character and submitting as subjects to the laws of a master. I The Court reasoned that to have "divested themselves of the right of self- government on subjects not concerned with trade ... could not be for the benefit and comfort" of the Indian tribes.
Civilization Fund Act (1819).
"Be it enacted ..., [t]hat for the purpose of providing against the further decline and final extinction of the Indian tribes, ... and for introducing among them the habits and arts of civilization ...."
Cherokee Nation v. State of Ga.
"Though the Indians are acknowledged to have an unquestionable, and, heretofore, unquestioned right to the lands they occupy, until that right shall be extinguished by a voluntary cession to our government; yet it may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may, more correctly, perhaps, be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases. Meanwhile they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian.
They look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and address the president as their great father. They and their country are considered by foreign nations, as well as by ourselves, as being so completely under the sovereignty and dominion of the United States, that any attempt to acquire their lands, or to form a political connexion with them, would be considered by all as an invasion of our territory, and an act of hostility.
These considerations go far to support the opinion, that the framers of our constitution had not the Indian tribes in view, when they opened the courts of the union to controversies between a state or the citizens thereof, and foreign states."
Worcester v. State of Ga., 31 U.S. 515, 6 Pet. 515, 8 L.Ed. 483 (Mem) (U.S.Ga., Jan Term 1832)
to prevent the exercise of assumed and arbitrary power by persons under pretext of authority from the Cherokee Indians, and providing for imprisonment of persons who should reside among such Indians within the Cherokee Nation without first obtaining authority to do so from the governor of the state, is in violation of he constitutional provision granting to the United States the exclusive power to regulate intercourse with foreign nations.
The decision of a state court of last resort in a prosecution under a statute of that state for residing within the territory of an Indian nation in that state, contrary to law, overruling a plea that defendant entered such country with the permission of the Indian nation pursuant to a treaty between it and the United States, by which treaty the United States acknowledged such Indian nation to be a sovereign nation, and that the statute of the state prohibiting his residing therein was repugnant to such treaty, is a decision drawing in question the validity of a treaty of the United States, and also the validity of a state statute, because if its alleged repugnancy to the treaties and laws of the United States, and is in favor of the validity of such state statute, within Judiciary Act, S 25, 28 U.S.C.A. S 344, giving the supreme court of the United States jurisdiction to review the decisions of state courts of last resort in such cases.
| Attack on Soverenity and Treaties | |
| Date | Law/Policy |
The Northwest Ordinance of July 13, 1787 :
"(t)he utmost good faith shall always be observed towards the Indians; their land 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 . . . . "
The Trade and Intercourse Act of 1790
Trade and Intercourse Act, S 1.
"(N)o person shall be permitted to carry on any trade or intercourse with the Indian tribes, without a license of that purpose under the hand and seal of . . . such . . . person as the President of the United States shall appoint for that purpose . . . .").
Trade and Intercourse Act, S 4.
(N)o sale of lands made by any Indians, or any nation or tribe of Indians within the United States, shall be valid to any person or persons, or to any state . . . unless the same shall be made and duly executed at some public treaty, held under the authority of the United States.
Ward v. Race Horse, 163 U.S. 504 (1896).
Under equal footing doctrine, Wyoming has right to apply its laws, which place limits on the killing of game, to off reservation hunting by a member of the Bannock tribe, despite Bannock tribe's pre statehood treaty right to hunt "upon the unoccupied lands of the United States"
Non intercourse Act, FN184. Act of Mar. 1, 1793, ch. 19, S 8, 1 Stat. 329, 330.
No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution. Every person who, not being employed under the authority of the United States, attempts to negotiate such treaty or convention, directly or indirectly, or to treat with any such nation or tribe of Indians for the title or purchase of any lands by them held or claimed, is liable to a penalty of $1,000. The agent of any State who may be present at any treaty held with Indians under the authority of the United States, in the presence and with the approbation of the commissioner of the United States appointed to hold the same, may, however, propose to, and adjust with, the Indians the compensation to be made for their claim to lands within such State, which shall be extinguished by treaty.
Indian Removal Act, 4 Stat. 411 (1830).
In 1830, Congress passed the Indian Removal Act in order to relocate eastern tribes to the West. Congressional control over the Native American tribes expanded with the enactment of laws emphasizing the "education and civilization" of Indian children in order to assimilate Native American culture into that of the majority culture.
Worcester v. Georgia, 31 U.S. 515 (1832).
In Worcester, the Court voided a piece of Georgia legislation that contravened the Cherokee nation's right of tribal sovereignty. The Court interpreted treaty language stating that the United States would be "managing all [the tribes'] affairs," to refer primarily to managing trade with Indians and to exclude Indian self- government. The Court further explained that because the Cherokee nation was under the "protection of the United States," the tribe was receiving the protection of one more powerful but not abandoning their national character and submitting as subjects to the laws of a master. I The Court reasoned that to have "divested themselves of the right of self- government on subjects not concerned with trade ... could not be for the benefit and comfort" of the Indian tribes.
Civilization Fund Act (1819).
"Be it enacted ..., [t]hat for the purpose of providing against the further decline and final extinction of the Indian tribes, ... and for introducing among them the habits and arts of civilization ...."
Cherokee Nation v. State of Ga.
"Though the Indians are acknowledged to have an unquestionable, and, heretofore, unquestioned right to the lands they occupy, until that right shall be extinguished by a voluntary cession to our government; yet it may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may, more correctly, perhaps, be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases. Meanwhile they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian.
They look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and address the president as their great father. They and their country are considered by foreign nations, as well as by ourselves, as being so completely under the sovereignty and dominion of the United States, that any attempt to acquire their lands, or to form a political connexion with them, would be considered by all as an invasion of our territory, and an act of hostility.
These considerations go far to support the opinion, that the framers of our constitution had not the Indian tribes in view, when they opened the courts of the union to controversies between a state or the citizens thereof, and foreign states."
Worcester v. State of Ga., 31 U.S. 515, 6 Pet. 515, 8 L.Ed. 483 (Mem) (U.S.Ga., Jan Term 1832)
to prevent the exercise of assumed and arbitrary power by persons under pretext of authority from the Cherokee Indians, and providing for imprisonment of persons who should reside among such Indians within the Cherokee Nation without first obtaining authority to do so from the governor of the state, is in violation of he constitutional provision granting to the United States the exclusive power to regulate intercourse with foreign nations.
The decision of a state court of last resort in a prosecution under a statute of that state for residing within the territory of an Indian nation in that state, contrary to law, overruling a plea that defendant entered such country with the permission of the Indian nation pursuant to a treaty between it and the United States, by which treaty the United States acknowledged such Indian nation to be a sovereign nation, and that the statute of the state prohibiting his residing therein was repugnant to such treaty, is a decision drawing in question the validity of a treaty of the United States, and also the validity of a state statute, because if its alleged repugnancy to the treaties and laws of the United States, and is in favor of the validity of such state statute, within Judiciary Act, S 25, 28 U.S.C.A. S 344, giving the supreme court of the United States jurisdiction to review the decisions of state courts of last resort in such cases.
