Federal Law and Indian Policy Overview

Treaties established the earliest pattern of legal and political interaction between the federal government and Indian tribes.

Europeans signed the first treaties with Indian tribes in the early 1600s. In 1778, the U.S. signed its first treaty with an Indian tribe, the Delaware Indians. In 1871, when the treaty making era formally ended, the U.S. had signed more than 350 treaties with Indian tribes. Even after 1871, there were many written agreements between tribes and the United States which functioned like treaties.

Indian Removal Act policies during the period between 1830 and 1850 removed many tribes from their eastern homelands to lands west of the Mississippi River, especially into the area known as Indian Territory, which is now the State of Oklahoma. These mass removals included the "Trail of Tears," a long journey traveled primarily on foot by the Cherokee, Choctaw, Creek, Chickasaw, and Seminole, during which many died.

Removal policies later gave way to the reservation system. Between 1850 and 1891, numerous treaties and other written agreements were made that required tribes to relocate to distant territories or confined them to small areas that were "reserved" portions of the tribes' aboriginal territories. These reservations were created by treaties, statutes, and executive orders.

The General Allotment Act, also known as the "Dawes Act," was passed in 1887. It broke up communal reservation lands and assigned individual parcels, called "allotments," to tribal members. These parcels were to be held in trust for 25 years, although this time was often extended or shortened by the federal government. Because of the parcels' trust status, they could not be sold, or leased, or otherwise conveyed by their Indian owners without federal approval. After the trust period expired, titles to the parcels were to be converted to fee simple status, giving the owners the ability to convey an interest in their parcels without federal approval. The remaining reservation land, which had not been allotted to tribal members, was declared "surplus," and was opened to non-Indian settlement. The policy of allotment reduced the amount of land owned by tribes. Although Native Americans controlled about 138 million acres of land before the Dawes Act, they lost the majority of this land due to these allotment divisions and selling of surplus. Only 48 million acres of land remained in tribal control by 1934. The Indian Reorganization Act, enacted in 1934, ended the creation of allotments, eliminated time limitations on trust status, and allowed existing allotments to remain in trust status indefinitely. Allotments which remained in trust in 1934 are still Indian country.It would be respectful of the tribal perspective to acknowledge here, the significance of the Indian land loss that occurred through the allotment process. Indian held land went from 138 million acres in 1887 to 48 million acres in 1934. 2/3rds of the land was lost in this process alone. There were many forced sales of the allotted land due for non-payment of state taxes after the 25-year period.

The next phase of the federal government’s policy supported the reorganization of Indian tribes. The Indian Reorganization Act of 1934 ended the allotment of reservations, ensured that any allotted parcels still held in trust for individual Indians would not convert to fee simple status, and reaffirmed that tribal governments had inherent powers. The Act also provided a mechanism for the formalization of tribal governments through written constitutions and charters for tribes that would agree to federal oversight.

During this period, many of the reorganization era reforms were reversed, primarily by the federal government’s decision to terminate the federal recognition of many Indian tribes. Note that the federal trust relationship was terminated, not the tribes themselves. The Termination Policy was intended to further promote the assimilation of Native Americans into mainstream American society. In some cases, termination led to a loss of federal services and resources for those tribes. Some tribes terminated during this period have successfully petitioned to have their federal recognition restored. In 1953, a statute known as Public Law 280 (18 U.S.C. § 1162) transferred federal criminal jurisdiction, and some civil jurisdiction, to certain states over tribal lands that lay within their boundaries.

In the late 1960s and early 1970s, federal Indian policy began to support the concept of Indian self-determination. Various laws and presidential policies strengthened support for tribal governments and reaffirmed federal acknowledgment of tribal sovereignty.

The tribal right of self-government flows from the inherent sovereignty of Indian tribes and nations and for which the United States recognizes a special government-to-government relationship with Indian tribes. The Tribal Self-Governance Act of 1994 transferred control to tribal governments, upon tribal request, over funding and decision-making for certain federal programs, services, functions, and activities operated by the Department of Interior or the Indian Health Service and intended to benefit Indians as an effective way to implement the federal policy of government-to-government relations with Indian tribes and strengthen the federal policy of Indian self-determination.