United States policy: the late 18th and 19th centuries

The first full declaration of U.S. policy was embodied in the Northwest Ordinance (1787): The utmost good faith shall always be observed toward 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.This doctrine was embodied in the act of August 7, 1789, as one of the first declarations of the U.S. Congress under the Constitution.The final shaping of the legal and political rights of the Indian tribes is found in the opinions of Chief Justice John Marshall, notably in decision in the case of Worcester v. Georgia: The Indian nations had always been considered as distinct, independent, political communities, retaining their original natural rights, as the undisputed possessors of the land, from time immemorial. . . . The settled doctrine of the law of nations is, that a weaker power does not surrender its independence - its right to self-government - by associating with a stronger, and taking its protection. A weak state, in order to provide for its safety, may place itself under the protection of one more powerful, without stripping itself of the right of government, and ceasing to be a state.The first major departure from the policy of respecting Indian rights came with the Indian Removal Act of 1830. For the first time the United States resorted to coercion, particularly in the cases of the Cherokee and Seminole tribes, as a means of securing compliance. The Removal Act was not in itself coercive, since it authorized the president only to negotiate with tribes east of the Mississippi on a basis of payment for their lands; it called for improvements in the east and a grant of land west of the river, to which perpetual title would be attached. In carrying out the law, however, resistance was met with military force. In the decade following, almost the entire population of perhaps 100,000 Indians was moved westward. The episode moved Alexis de Tocqueville to remark in 1831: The Europeans continued to surround [the Indians] on every side, and to confine them within narrower limits . . . and the Indians have been ruined by a competition which they had not the means of sustaining. They were isolated in their own country, and their race only constituted a little colony of troublesome strangers in the midst of a numerous and dominant people.

The territory west of the Mississippi, it turned out, was not so remote as had been supposed. The discovery of gold in California (1848) started a new sequence of treaties, designed to extinguish Indian title to lands lying in the path of the overland routes to the Pacific. The sudden surge of thousands of wagon trains through the last of the Indian country and the consequent slaughtering of prairie and mountain game that provided subsistence for the Indians brought on the most serious Indian wars the country had experienced. For three decades, beginning in the 1850s, raids and sporadic pitched fighting took place up and down the western Plains, highlighted by such incidents as the Custer massacre by Sioux and Cheyenne Indians (1876), the Nez Perce chief Joseph's running battle in 1877 against superior U.S. army forces, and the Chiricahua Geronimo's long duel with authorities in the Southwest, resulting in his capture and imprisonment in 1886. Toward the close of that period, the Ghost Dance religion, arising out of the dream revelations of a young Paiute Indian, Wovoka, promised the Indians a return to the old life and reunion with their departed kinsmen. The songs and ceremonies born of this revelation swept across the northern Plains. The movement came to an abrupt end December 29, 1890, at Wounded Knee Creek, South Dakota. Believing that the Ghost Dance was disturbing an uneasy peace, government agents moved to arrest ringleaders. Sitting Bull was killed (December 15) while being taken into custody, and two weeks later units of the U.S. 7th Cavalry at Wounded Knee massacred more than 200 men, women, and children who had already agreed to return to their homes. A further major shift of policy had occurred in 1871 after congressional discussions lasting several years. U.S. presidents, with the advice and consent of the Senate, had continued to make treaties with the Indian tribes and commit the United States to the payment of sums of money. The House of Representatives protested, since a number of congressmen had come to the view that treaties with Indian tribes were an absurdity (a view earlier held by Andrew Jackson). The Senate yielded, and the act of March 3, 1871, declared that "hereafter no Indian nation or tribe" would be recognized "as an independent power with whom the United States may contract by treaty." Indian affairs were brought under the legislative control of the Congress to an extent that had not been attempted previously. Tribal authority with respect to criminal offenses committed by members within the tribe was reduced to the extent that murder and other major crimes were placed under the jurisdiction of the federal courts. The most radical undertaking of the new legislative policy was the Dawes General Allotment Act of 1887. By that time the Indian tribes had been moved out of the mainstreams of traffic and were settled on lands that they had chosen out of the larger areas that they had formerly occupied. Their choice in most cases had been confirmed by treaty, agreement, act of Congress, or executive order of the president. The tribes that lived by hunting over wide areas found reservation confinement a threat to their existence. Generally, they had insisted on annuity payments or rations, or both, and the U.S. peace commissioners had been willing to offer such a price in return for important land cessions. In time the view came to be held that reservation life fostered indolence and perpetuated customs and attitudes that held Indians back from assimilation. The strategy offered by proponents of this theory was the Allotment Act authorizing the president to divide the reservations into individual parcels and to give every Indian, whether he wanted it or not, a particular piece of the tribally owned land. In order not to make the transition too abrupt, the land would be held in trust for a period of 25 years, after which ownership would devolve upon the individual. With it would go all the rights and duties of citizenship. Reservation land remaining after all living members of the tribes had been provided with allotments was declared surplus, and the president was authorized to open it for entry by non-Indian homesteaders, the Indians being paid the homestead price. A total of 118 reservations was allotted in this manner, but the result was not what had been anticipated. Through the alienation of surplus lands (making no allowance for children yet unborn) and through patenting of individual holdings, the Indians lost 86,000,000 acres (34,800,000 hectares), or 62 percent, of a total of 138,000,000 acres in Indian ownership prior to 1887. A generation of landless Indians resulted, with no vocational training to relieve them of dependence upon land. The strategy also failed in that ownership of land did not effect an automatic acculturation in those Indians who received individual parcels. Through scattering of individuals and families, moreover, social cohesiveness tended to break down. The result was a weakening of native institutions and cultural practices with nothing offered in substitution. What was intended as transition proved to be a blind alley. The Indian population had been dwindling through the decades after the mid-19th century. The California Indians alone, it was estimated, dropped from 100,000 in 1853 to not more than 30,000 in 1864 and 19,000 in 1906. Cholera in the central Plains in 1849 struck the Pawnee. As late as 1870-71 an epidemic of smallpox brought disaster to the Blackfeet, Assiniboin, and Cree. These events gave currency to the concept of the Indian as "the vanishing American." The decision of 1871 to discontinue treaty making and the passage of the Allotment Act of 1887 were both founded in the belief that the Indians would not survive, and hence it did not much matter whether their views were sought in advance of legislation or whether lands were provided for coming generations. When it became obvious after about 1920 that the Indians, whose numbers had remained static for several years, were surely increasing, the United States was without a policy for advancing the interests of a living people.

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