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Chapter One Indian Self-Government and the National Government During the 1920s The Indian Reorganization Act grew out of the interaction of Native American societies with the United States government, particularly in the decade and a half before 1934. National government policy toward Native Americans had been far from consistent from the ratification of the Constitution to that date. In fact, the national government’s efforts in this area were notable for numerous dramatic reversals of both programs and goals. At first Native American societies were dealt with as sovereign nations; treaties were made with them, and the national government’s activities were restricted chiefly to military, diplomatic, and trade relationships with various Indian societies. This policy resulted in a large de facto reduction of Native American landholdings but left large areas under Indian control. But in an abrupt change of direction during the 1830s, the national government removed many Native Americans beyond the Mississippi River to a new Indian Territory where they could govern themselves and have their land ownership rights protected while white Americans occupied their remaining lands east of the great river. In the 1850s another reversal resulted in practice in a policy of creating reservations in the western United States. In 1871 Congress abruptly forbade further treaty-making, although existing treaties were not abrogated and in practice much of the previous pattern persisted in the form of agreements made with various societies. However, one aspect of the new policy was a subtle but important shift toward treating Indians on reservations as to some degree under the authority of the national government, although the courts ruled that Indians were not under the jurisdiction of the United States and therefore did not become citizens by birth after adoption of the Fourteenth Amendment to the federal Constitution. In practice, national government control over Indians expanded. In still another about-face, at the end of the nineteenth century and the beginning of the twentieth the promise to maintain the Indian Territory as an inviolate preserve was violated. Oklahoma was officially opened to non1 01-N1289 6/21/2000 4:19 PM Page 1 Indian settlement, the Indian governments that had functioned for decades in various Indian communities within the territory were destroyed, and Indian lands were once more greatly reduced. From the 1880s on, the national government, at both administrative and congressional levels, was dominated by advocates of the ideology of forced assimilation and by the allotment policy (to be discussed more fully in the next chapter). This well-established pattern provided the background for the events of the 1920s, which prepared the way for the Indian Reorganization Act. Several elements of the system that had been in place since the 1880s, particularly those strongly affecting Native American self-government, are noted in the next chapter. First, however, it is necessary to record that Indian law, as created and interpreted by judges, had not changed as much or as erratically as policy created by administrators and legislators. In fact, in a fundamental sense there was an underlying consistency in judge-made Indian law, a circumstance that created conflict between Indian law and the policies pursued at various times by Congress. The Conflict between Law and Administration The Constitution of the United States is practically silent on the role of Indians in the American polity. It authorizes the Congress to regulate foreign and interstate commerce plus commerce “with the Indian Tribes,” and it states that “Indians not taxed” will not be counted when congressional seats are allocated among states. Both of these provisions arise from the recognition that very few Native Americans were citizens or subjects of the United States in any sense when the Constitution was ratified. The most important aspect of early national/Native American interactions for many decades—the treatymaking process—does not specifically mention Indian nations as parties to such agreements. The national judiciary, especially the Supreme Court, created the structure of law relating to Native Americans after the Constitution was adopted. This legal structure, unique in this country—no other groups have the legal standing of Indians—is also unique among other nation-states, although in recent decades there have been attempts in some other countries to move toward the U.S. pattern. This legal structure was in place and being followed by the courts during the 1920s and early 1930s, although the brilliant codification by Felix Cohen in the Handbook of Federal Indian Law did not systematize...

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