What are the problems for the United States having sovereign nations within its borders? How has the U.S. dealt with these problems? Support you views with examples from  the program  The Story of Federal Indian Law.  Federal Policy There are 2 basic views regarding Indian tribes: 1. Indian tribes are here to stay and need a land base which needs to be protected. 2. Tribes should disappear and their members absorbed into mainstream society. The result is that for the last two hundred and twenty-five years federal policy regarding Indian affairs has been pendulum-like, swinging back and forth between assimilation and self-determination. This shift does not occur instantly, it rather resembles a continuum: Assimilation____________________________________________Self-determination The textbooks divide the history of federal Indian policy into several eras. 1. Colonial Period – ended in 1820 Initially, European powers dealt with Indians through the use of treaties. After the American Revolution, the federal government continued this practice for two reasons: Non-Indian settlers needed land, and war weary from the American Revolution, the federal government wanted to ensure peaceful relations with Indians. European powers, and later the federal government, took the role of a protector of the Indians from the settlers who wanted land. The U.S. Constitution gave Congress power over Indian affairs, so Congress passed a series of Trade and Intercourse Acts that made interactions with Indians subject to federal control. 2. Removal (1820-1850) Generally, the non-Indian community believed that Indians would assimilate, become christianized and live in the European tradition. There were those, however, including Thomas Jefferson and his followers, who didn’t believe Indians and non-Indians could live together. Jefferson therefore urged voluntary removal of Indians to their own territory west of the Mississippi River. Indians were moved from the southeast U.S. to Oklahoma, many of them dying along the way. This resulted in what has become known as the “trail of tears.” The move was termed “voluntary”, but under the circumstances, tribes were left with little choice other than to leave their homelands. By 1849, the eastern U.S. was almost entirely free of Indian tribes. The Bureau of Indian Affairs was then moved from the War Dept. to the Dept. of Interior. 3. Movement to Reservations (1850-1887) Non-Indians began to move westward. The federal government created a policy of restricting tribes to reservations. Tribes were moved entirely or were granted portions of their land, with the bulk of the land going to the federal government through treaties that were often coerced or fraudulently induced. When Indians were placed on reservations, Indian agents supervised their adaptation of non-Indian ways. Organized religions tried to christianize Indians and reservations were divided among the churches. There are many Baptist churches on reserv.

1. What are the problems for the United States having sovereign
nations within its borders? How has the U.S. dealt with these
problems? Support you views with examples from the program
The Story of Federal Indian Law.
Federal Policy
There are 2 basic views regarding Indian tribes:
1. Indian tribes are here to stay and need a land base which
needs to be protected.
2.
Tribes should disappear and their members absorbed into
mainstream society.
The result is that for the last two hundred and twenty-five years
federal policy regarding Indian affairs has been pendulum-like,
swinging back and forth between assimilation and self-
determination. This shift does not occur instantly, it rather
resembles a continuum:
Assimilation__________________________________________
__Self-determination
The textbooks divide the history of federal Indian policy into
several eras.
1.
Colonial Period – ended in 1820

2. Initially, European powers dealt with Indians through the use of
treaties. After the American Revolution, the federal government
continued this practice for two reasons: Non-Indian settlers
needed land, and war weary from the American Revolution, the
federal government wanted to ensure peaceful relations with
Indians.
European powers, and later the federal government, took the
role of a protector of the Indians from the settlers who wanted
land. The U.S. Constitution gave Congress power over Indian
affairs, so Congress passed a series of Trade and Intercourse
Acts that made interactions with Indians subject to federal
control.
2. Removal (1820-1850)
Generally, the non-Indian community believed that Indians
would assimilate, become christianized and live in the European
tradition. There were those, however, including Thomas
Jefferson and his followers, who didn’t believe Indians and non-
Indians could live together. Jefferson therefore urged voluntary
removal of Indians to their own territory west of the Mississippi
River.
Indians were moved from the southeast U.S. to Oklahoma, many
of them dying along the way. This resulted in what has become
known as the “trail of tears.” The move was termed “voluntary”,
but under the circumstances, tribes were left with little choice
other than to leave their homelands. By 1849, the eastern U.S.
was almost entirely free of Indian tribes. The Bureau of Indian
Affairs was then moved from the War Dept. to the Dept. of
Interior.
3. Movement to Reservations (1850-1887)

3. Non-Indians began to move westward. The federal government
created a policy of restricting tribes to reservations. Tribes were
moved entirely or were granted portions of their land, with the
bulk of the land going to the federal government through
treaties that were often coerced or fraudulently induced.
When Indians were placed on reservations, Indian agents
supervised their adaptation of non-Indian ways. Organized
religions tried to christianize Indians and reservations were
divided among the churches. There are many Baptist churches
on reservations; however in the west, Catholic churches are
dominant. Some traditional religious dances and ceremonies
were outlawed at this time, to encourage christianization of the
Indians.
One of the most significant events of this era, in a legal sense,
occurred in 1883. The U.S. Supreme Court issued an opinion in
a case known as Ex Parte Crow Dog. Crow Dog killed Spotted
Tail on the Lower Brule Sioux Reservation. Both Crow Dog and
Spotted Tail were members of the Lower Brule Sioux Tribe. The
district court in the Dakota territory sentenced Crow Dog to
death for the murder of Spotted Tail. Crow Dog claimed that the
laws of the U.S. did not apply and that the district court had no
jurisdiction to try him. He then applied to the Supreme Court
for a writ of habeas corpus. (This is a request that is made when
an individual is being illegally held against his will).
There was a law that applied in Indian Country which stated
that general laws of the United States applied to punish crimes
committed anywhere in the exclusive jurisdiction of the U.S.,
including Indian Country. The act provided for an exception
when an Indian had been punished by the local law of the tribe,
or in any case when a treaty provision gave the tribe exclusive
jurisdiction over such offenses.
The argument made in support of jurisdiction was that pursuant

4. to a treaty, the U.S. had jurisdiction. The treaty provided that
“If bad men among the Indians shall commit a wrong or
depredation upon the person or property of any one, white,
black, or Indian, subject to the authority of the Untied States,”
the Indians will turn them over to the United States to be
punished. The court said it is clear that this was not meant to
apply to a crime committed by an Indian against another Indian.
Next, the U.S. relied on treaty language that said, “Congress
shall, by appropriate legislation, secure to the tribe “an orderly
government.” The court said this meant self-government - the
tribe could maintain peace and order through use of their own
laws and customs. The court further said that Indians should be
judged by their own law not by “one which measures the red
man’s revenge by the maxims of the white man’s morality.” (In
this case, peacemakers of the tribe negotiated with the families
of Spotted Tail and Crow Dog for compensation for Spotted
Tail’s death. Crow Dog and his family gave Spotted Tail’s
family $600, eight horses and one blanket to compensate them
for the loss of Spotted Tail).
It is said that by the time the court’s decision reached the
Dakota Territory, Crow Dog had a noose around his neck. Non-
Indian authorities had no choice but to let him go.
The BIA had been lobbying Congress for many years to get
federal criminal jurisdiction extended into Indian Country.
Congress reacted to this case by giving the BIA what they
wanted. The Major Crimes Act was passed, which granted
criminal jurisdiction over certain crimes to the federal
government. This marked the beginning of the next shift in
federal policy towards assimilation.
3. Allotment and Assimilation (1887-1928)

5. Those friendly to Indians realized that there was hopeless
poverty on reservations. Other non-Indians resented the
reservation system because there were tracts of land that were
completely unavailable to settlers.
In 1887, the General Allotment Act, also known as the Dawes
Act, was passed. Under the plan, Congress thought they could
assimilate the Indians in a single generation. It was supported
by those sympathetic to the plight of Indians, who believed that
Indians could be given plots of land, become middle-class
farmers and assimilate into mainstream society.
The Act authorized the President, whenever he believed it was
advantageous to the Indians, to allot reservations into farm-size
parcels, according to a formula dictated by Congress. The act
called for 160 acres of land to be given to the head of each
family. 80 acres was to be given to all other tribal members.
These quantities were doubled if land was only suitable for
grazing, but later all quantities of land to be distributed were
cut in half.
There were many problems with the Allotment Act, as you will
see from the external links. One of the problems with allotments
is that it didn’t provide for future generations. The land was
divided at a specific point in time among those who were alive
at that time.
The Allotment Act provided that allotments were to be held in
trust by the federal government for 25 years. This meant that
the federal government owned the land for the benefit of the
individual tribal member. The purpose of the 25-year period was
to give Indians time to learn proper farming and business
methods. During this period, the land was not subject to state

6. law including taxation, but at the end of the 25-year period, title
to the land was given to the individual Indian and state law
applied, including taxation. Many allottees lost their land
because they could not pay the taxes.
Indians living on reservations were not considered U.S. citizens
until 1924; however, under the Allotment Act, upon receiving
an allotment, an Indian became a U.S. citizen and was subject to
state criminal and civil law. In 1906 the Allotment Act was
amended so that Indians became citizens when the trust period
expired and they received title to their land.
Each reservation had a federally appointed Indian agent. The
agents withheld rations and annuities for individuals who
wouldn’t work their land. For many tribes, agriculture was not a
natural way of subsistence. Plains Indians were hunters,
traditionally following the buffalo. Indians in Washington and
the Great Lakes were fishermen. Even the withholding of food
and money was insufficient to convert many Indians to a life of
farming.
In 1891, the Allotment Act was amended to allow the Secretary
of the Interior to lease the land of any allottee who couldn’t
benefit from or improve his allotment. If the agent didn’t like
the way an allotment was being used, he could lease it to
whomever he wanted. After 1891, leasing became a common
occurrence.
A further problem is that the Allotment Act subjected allotted
land to state intestacy laws if the allottee died without a will.
Most Indians didn’t have wills. Under state law, if a person dies
without a will, the property will pass to his or her spouse. If
there is no spouse, the property passes to his or her children. In
the 1800s, it was common to have large families. If an Indian
died without a spouse, each child would receive an undivided
interest in the parent’s property. For example, if a man dies

7. leaving 10 children, each child will receive a 1/10th share of the
allotment. If each of those children has 10 children and dies
without a will, those children will inherit a 1/100th interest in
the land. These interests are undivided. That is, each of the 100
people doesn’t get an acre of land; they all receive a 1/100th
interest in the entire parcel. To do anything with the land, there
must be agreement of all 100 owners. Getting 100 family
members to agree on anything is a tumultuous task (at least in
my family). This has resulted in many allotments being unused.
This problem still exists today.
By the mid-1920s, the federal government realized that
assimilation was not going to work and the shift began towards
reorganization.
4. Reorganization (1934 - 1953)
The Merriam Report was prepared at the direction of the
Secretary of the Interior to assess conditions on Indian
reservations. The report stated that the Congressional purpose
behind the Allotment Act was to make farmers out of the
Indians, but the act provided for instruction and training in
agriculture, which did not occur. The report further outlined
procedures for improving Indian services and made
recommendations for expenditures of funds.
Congress was outraged when they received the Merriam Report.
The general belief was that the report was slanted in favor of
the bureaucratic apparatus of the BIA. The Senate Committee on
Indian Affairs therefore conducted their own investigation.
Several years later, after the senators made many trips to
reservations and observed the poverty firsthand, they came up
with basically the same results.
In 1934, the Indian Reorganization Act, (IRA), also known as
the Wheeler-Howard Act, was passed to rectify conditions on

8. the reservations. The Act promised expanded social programs,
federal funding of projects and put an end to allotments. It also
extended the trust period indefinitely for existing allotments
that were still in trust. In addition, it authorized the Secretary of
the Interior to restore to tribal ownership any excess lands the
federal government acquired from the tribes under the
Allotment Act, as long as the land was still held by the
government.
The IRA allowed tribes to organize for their common welfare
and adopt a constitution and bylaws to be approved by the
Secretary of the Interior. The BIA sent a model constitution and
bylaws to all tribes. The constitution and bylaws had to be
approved by the majority of adult Indians residing on the
reservation within two years. Benefits to tribes if they
organized pursuant to the IRA were that, the tribe had the right
to:
1. Employ legal counsel, subject to BIA approval
2. Prevent the sale, disposition, lease or encumbrance of lands
or other tribal assets without their consent
3. Negotiate with federal, local and state governments
4. Receive appropriations
5. Form Tribal Corporations
181 tribes voted to accept the act and 77 tribes specifically
rejected the act, including the Navajo tribe.
Tribal governments were bolstered under the IRA, but not in the
traditional sense. The new governments, created at the direction
of the BIA, often had little resemblance to the tribal
governments that once existed, but even using this federal
model, this era of supporting tribal governments only lasted
until 1953.

9. Termination and Relocation (1953 - 1961)
This period began towards the end of World War II. Domestic
budgets were reduced to support the war effort and many federal
agencies were reduced or closed. Many Indians left the
reservation to work in factories or join the armed forces. The
federal government began a policy of paying Indians to leave
reservations and move to selected cities to support the war
effort. In California, Los Angeles and Oakland were selected as
cities for relocation.
In 1948, Congress wanted to transfer responsibility for Indians
to the states as soon as possible. At the same time, the National
Council of Churches issued a report recommending that Indians
be given full citizenship by eliminating a lot of the legislation
that bound them to the federal government. Conservatives
wanted federal budget cuts and believed that Indians could
make it on their own once freed from government control, while
liberals took a civil rights position and thought they could help
the Indians by lifting discriminatory legislation.
In 1947, the Senate Civil Service Committee asked the acting
Indian Commissioner to bring them a list of tribes that could
function on their own, and concentrate on those that could do so
within a reasonable time. Tribes chosen for termination were
based on four factors: (1) degree of assimilation of the tribe; (2)
economic conditions and available resources; (3) willingness of
the tribe to dispense with federal services; and (4) willingness
and ability of the states to provide public services. In 1948,
under pressure from Congress, the BIA began to assemble this
data on all federally-recognized tribes.
In 1952, House Resolution 108 was passed declaring that “at the

10. earliest possible time, all of the Indian tribes and the individual
members thereof located within the States of California,
Florida, New York and Texas, should be freed from federal
supervision and control...” ( Resolutions are statements of
policy only and have no legal effect). After receiving reports
from the BIA regarding the social and economic status of tribes,
Congress passed a series of acts terminating tribes. These
included the California Rancheria Act that terminated 31
California tribes. After passage of the acts, the BIA was given a
period of time to implement complete termination of federal
services to the tribes. The shortest period of time allowed was
less than 1 year and the longest was 12 years.
The overwhelming majority of Indians were opposed to
termination, but in San Diego County there was a division
among Indians as to whether tribes should support termination.
The Mission Indian Federation, an Indian organization that had
been around for many years, was now led by Purl Willis, a non-
Indian. Willis argued in favor of termination. The argument
made was that many Indians were now living off-reservation,
and yet services were provided as if all Indians still lived on
reservations. Willis argued that termination would free the
Indians. It was time for them to be treated like all citizens. At
the same time, a few Indians, including Max Mazetti from
Rincon, led the local opposition to termination. The argument
for the opposition was that Indians were not prepared to submit
to state jurisdiction, including state taxes and property taxes.
The fear was that many Indians would lose their land if they
were forced to pay taxes.
The primary argument in favor of termination in San Diego
County was an economic one. All federal health services for
California Indians ended in 1955. The closest Indian hospital in
San Diego County was Soboba Indian Hospital in Hemet. This
hospital was closed and many Indians tried to use the county
hospital but were denied treatment. The federal government also

11. stopped federal support for individual Indians with the
expectation that county and state governments would carry on
this function. San Diego County refused to pay welfare benefits
to Indians living on reservations until a lawsuit was filed and
decided in favor of the Indians. This lack of benefits left many
Indians with no way of supporting themselves. It was in this
climate that P.L. 280 was passed.
In 1958, the Secretary of the Interior casually announced that no
other tribes would be terminated without their consent, but it
was not until 1970, that the termination policy was formally
repudiated. At that time, it was President Nixon who asked
Congress to officially repeal the termination policy.
Tribal Self- Determination (1968)
There was plenty of social change in the 1960s. It was the time
of the Viet Nam War, the peace movement, free love and the
occupation of Alcatraz by Indians. Suddenly, it was cool to be
Indian.
This era was marked by a reversal of Federal Indian policy. The
new goal was to strengthen tribal governments and once again
try to make them self-sufficient. Farming failed, BIA
domination through the Indian Reorganization Act failed, total
assimilation through termination failed and now the federal
government was ready to try something new.
In 1968, the Indian Civil Rights Act was passed which
purported to provide individuals with protections not previously
afforded to them. The Bill of Rights serves to restrain state and
federal governments but does not apply to tribal governments
since they predate the Constitution. The Indian Civil Right Act
provides for most of the rights asserted under the Bill of Rights,
but not all of them.
The Indian Civil Rights Act includes a provision that requires

12. consent from both tribes and states before asserting jurisdiction
pursuant to P.L. 280. The Act also includes a provision which
provides for the retrocession of P.L. 280 jurisdiction at the
request of the state – not the tribe - so if a tribe wants to retain
jurisdiction over its own criminal and/or civil actions, it must
have state approval.
In 1975, the Indian Self-Determination and Education
Assistance Act was passed. The act took control of federal
programs from the BIA and gave it to the tribes. At the request
of tribes, the Secretary of the Interior was directed to enter into
contracts with tribes, and organizations designated by tribes, for
the administration of health, education and construction
programs. The act also gave preference for American Indians
when hiring for contracts affecting Indians.
In 1982, the Indian Tribal Government Tax Status Act was
passed. This act gives tribes many tax advantages that are given
to states, including the right to issue tax-exempt bonds to
finance government projects.
In 1983, President Reagan reaffirmed the policy of
strengthening tribal governments, with the additional goal of
reducing their economic dependence on the federal government.
Current Policy
As you previously read, federal policy shifts between self-
determination and assimilation. There are several factors
occurring in recent years that seem to indicate that the tide is
shifting yet again.
The Indian Gaming Regulatory Act represents an intrusion on
tribal sovereignty previously seen only in laws affecting the
sale of alcohol on reservations. Gaming compacts negotiated

13. between tribes and states contain varying degrees of
applicability of state laws, but all compacts apply some measure
of state law to Indian tribes that did not previously exist.
The BIA’s budget has been drastically reduced since about
1995. In addition, several bills have been proposed in the last
few years that erode tribal sovereignty.
There is a bill that has been raised in at least two congressional
sessions that would impose corporate income tax on tribal
governments for casino income. This is unprecedented. State,
city, county and tribal governments have never paid income tax
on their earnings. The state of California pays no federal taxes
on their lottery income, yet this bill would impose such a tax on
tribes. The bill has been defeated every time it has been
proposed, but it is almost certain to be raised again.
A bill has also been proposed a few times to use means testing
in determining federal allocations to tribes. This would take
into account a tribe’ s income from all economic development in
determining how much federal aid to give the tribe. Proponents
claim that tribes, particularly wealthy gaming tribes, should not
receive appropriations from the federal government because
they do not need the money. Opponents claim that the federal
government has a trust responsibility to the tribes, as enunciated
in the Marshall trilogy, regardless of income. This is the price
the federal government should pay for taking tribal lands. Some
fear that means testing is the beginning of termination. This bill
has also been defeated every time it has been proposed but is
sure to be raised again.
Yet another bill which has been proposed several times is Slade
Gorton’s bill to eliminate tribal sovereign immunity. This bill
has thus far not passed, and Gorton was not re-elected to the
senate in 2000, so it is uncertain if this bill will be raised again.
The U.S. Supreme Court has included in its opinions an

14. invitation to Congress to eliminate tribal sovereign immunity.
Indian housing has taken a new turn. Prior to 1994, Indians
were unable to obtain mortgages on reservations because they
do not own the land. There is now a program in place, known as
HUD Section 184 loans, which enable Indians to obtain
federally-guaranteed mortgages to build, buy or renovate houses
on the reservation. Traditional Indian housing programs have
also changed. The Dept. of Housing and Urban Development
(HUD) funds Indian housing authorities and builds houses for
low-income individuals to either buy or rent. Up until the last
few years, these housing authorities have been subsidized. Low
income housing on reservations is still subsidized but the new
housing laws require that Indian housing authorities act as
businesses. At the same time, it allows tribal housing
authorities more flexibility by allowing them to determine how
they will allocate federal monies.
The Republican-controlled congress has had a policy of federal
de-regulation and granting power to the states. At the same
time, there is a conservative U.S. Supreme Court who are
consistently affirming and expanding state rights, while limiting
tribal rights.
While many Indians still live in poverty on isolated
reservations, others are sophisticated, have money and know
how to use it for political gain. Some tribes, as well as
individual Indians, are in a position to make sizable campaign
contributions, which equates to political power. Tribes have
more political power now than ever before in history. With the
power of the tribes pitted against the conservative congress and
court, it will be interesting to see where federal policy goes in
the future.