Legal Discrimination Against Native Americans
The early European explorers and settlers described the Native Americans as innocent, ingenious, friendly, and naked. In a sense, the Native Americans were seen as childish — one of the early stereotypes about them. As more European settlers arrived, English concepts of property — land transfer, titles, deeds — were inserted into the relations between the settlers and the natives.
It is not surprising to find that much of the discrimination against Native Americans was tied very closely to the legalistic legitimation of land grabs by European settlers. The bulk of this discrimination is found in legal documents, especially treaties, that defined the nature of Native Americans’ presence and residence on their own land.
The taking of Native American land by whites was philosophically legitimized by the principle of Manifest Destiny, the belief of European Americans that “through divine ordination and the natural superiority of the white race, they had a right (and indeed an obligation) to seize and occupy all of North America.… During the nineteenth and twentieth centuries, the philosophy of Manifest Destiny was accompanied by several pieces of legislation that accomplished under… law that which would not have been legally justifiable through military force”. Central pieces of legislation that defined the U.S. government’s relationship with Native Americans include the following:
Indian Removal Act (1830). Andrew Jackson used this act to force the mass relocation of the Creek, Cherokee, Choctaw, Seminole, and other Indian nations during the 1830s. The intent was to open up the territory east of the Mississippi for settlement by white Americans and their African slaves.
Major Crimes Act (1885). This act allowed the United States to extend its jurisdiction into Native American territories. Since the treaty defined the sovereignty of Native American territories, this act nullified the treaty’s purpose, which had permitted Native Americans to exercise their own jurisdiction within their own territories.
General Allotment Act (1887). Also known as the “Dawes Act,” this act was designed to break up the collective ownership of Indian lands by requiring Indians to identify themselves by means of a “blood quantum” code. Under the act, “full-blood Indians” received the deeds to land parcels over which the U.S. government exercised control for twenty-five years, and “mixed-blood Indians” received “patents in fee simple” — basically land rental agreements — and were forced to accept U.S. citizenship. As a result of the act’s implementation, the United States acquired over 100 million acres of Native American land between 1887 and 1934.
Indian Citizenship Act (1924). This act conferred U.S. citizenship on all Native Americans born within the territorial limits of the United States. The act’s purpose was to curtail the demand for indigenous identity among Native Americans. To protest, the Hopi and Onondaga refuse to acknowledge the act by issuing their own tribal passports.
Indian Claims Commission Act (1946). There is some speculation that this act originated, in part, as a response to the role the United States played at the Nuremberg trials. The act was designed to provide legal recourse to those Native Americans who felt that their land was unjustly taken away from them. The act established the Claims Commission, responsible for hearing cases brought forward by Native Americans. The commission, however, was not empowered to return the land to any Native American; rather, it was required to assign a monetary value to the land in question — “at the time it was taken.” As a result, awards given out by the commission tended to be very small. In general, the act gave the United States the tool to legitimize its claim to Native American lands.
Relocation Act (1956). This act created job training centers in urban areas for Native Americans. The purpose of the act was to force Native Americans off the reservation by offering job training opportunities only in urban areas. Native Americans participating in the job training programs were required to sign formal agreements that they would not return to their reservations.
Alaska Native Claims Settlement Act (1971). The act removed the sovereign status of the Indian nations in Alaska by incorporating them into the United States. Approximately 44 million acres of Native American lands were turned into U.S. assets. The importance of this act is that the incorporation of Native American lands included the oil beneath and the timber on top.
Treaties were the first step in the colonization of Native Americans. Most of the legal concepts — such as land deeds and land tenure — were foreign to natives, but they accepted treaties as a “good-faith” attempt at coexistence with the whites. Native Americans perceived treaties as a recognition of their sovereignty as Indian nations and assumed that they were on an equal legal footing with the United States.
The second step in the colonization of Native Americans was congressional legislation, such as the acts reviewed above, which became a tool for displacing Native Americans from their lands. Congress’s efforts to alter the original treaties with Native American nations were motivated by the white settlers’ demands for yet more land. Without their land, Native Americans lost their sovereign status and became a fully colonized population.
All these manipulations of the law increasingly undermined the promises of the 1787 Northwest Ordinance:
The utmost 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… they shall never be invaded or disturbed…; 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.
Such laws, as it turns out, were used as a tool for doing great wrong.
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