Congress Whispers, Reservation Nations Endure: A Century of Public Acts of Aggression, Confusion, & Resolution

Copyright © 2012 by B. L. Wilson & Associates, LLC.

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Contents

Preface

Introduction

Legislated Geographies

Legislative Sample, Part I: 1885-1920

Acts of an Insecure Victor

Federal Agents Only: The Seven Major Crimes Act of 1885

Checkerboard Shell Game of Gigantic Proportions: The General Allotment Act of 1887

Erasing Tribal Spaces: The Reduction of the Great Sioux Reservation Act of 1888

The Spoils of Soil: The Leasing of Indian Lands Act of 1891

Take the Children Away: The Indian Education Act of 1891

Dismissing Tribal Powers: Declaration of Presidential Power over Tribes in 1906

Fair Play in the Balance: The Burke Act of 1906

Thirty Years in Coming: The Sioux Pony Act of 1906

Witness to Economic Barriers: Buy Indian Act of 1910

Keeping the Wheels Turning: Administration Act of 1921

Legislative Sample, Part II: 1921-1961

Public Acts of Mixed Intent

Closing the Loopholes: Indian Citizenship Act of 1924

Good News, At Last: The Johnson-O’Malley Act of 1934

Mixed Intentions: The Indian Reorganization Act of 1934

An Economic Boost: The Arts and Crafts Board Act of 1935

An Honorable Move: The U.S. Indian Claims Commission Act of 1946

Poof: Termination Policies of 1953

A Working Chance: The Indian Vocational Training Act of 1956

Legislative Sample, Part III: 1962-1990

One American to Another

Better Later Than Never: The American Indian Civil Rights Act of 1968

Welcome Back to Parents: Indian Elementary and Secondary School Assistance Act of 1972

Loans at Last: Indian Financing Act of 1974

Administrative Rights Returned: Indian Self-Determination and Education Assistance Act of 1975

Access to Local Health Care: The Indian Health Care Improvement Act of 1976

Recognized in the USA: The Reinstatement of the Modoc, Wyandotte, Peoria, and Ottawa Tribes Act of 1978

Homegrown Degrees: Tribally-Controlled Community College Assistance Act of 1978

Family Care at Last: The Indian Child Welfare Act of 1978

Worship as You Will: The American Indian Religious Freedom Act of 1978

No New Jobs: Indian Employment Act of 1979

Cash Infusion: Indian Gaming Regulatory Act of 1988

Common Decency: The Native American Graves and Repatriation Act of 1990

Toward A More Perfect Nation

Chapter Notes

Bibliography

Acknowledgments

Photographs & Maps

Appendix

In 1830, at the urging of southern and western Congressmen and Senators, the Indian Removal Act was passed, and this act marks the emergence of the legislative branch as the dominant factor in the formation of Indian policy.

Vine Deloria, Jr.

Preface

YEARS AGO, WHEN my Book of the Month Club subscription brought Dee Brown’s Bury My Heart at Wounded Knee to my rural Ohio doorstep, little did I know where its content would lead me. Some time later, as my daughter and I visited the Pine Ridge Reservation to pay our respects at the mass gravesite at Wounded Knee, I remained unaware of the tribally focused public laws that framed our journey.

My awareness of these laws, and of the role they played throughout more than a century of American history, grew over time. My own graduate research, in which I used U.S. census data to analyze changes in one reservation population and its three adjacent counties, led me to the analytical works of cultural anthropologists, historians, and legal scholars whose writings focused on federal and state policies toward tribes (Wilson 2000). This foray into their analyses marked my first encounter with the unique and extensive body of Congressional actions that lie in near silence within the shadowy margins of all other U.S. public laws. This seldom-discussed genre of public law is specific to tribal communities; as such, it applies to fewer than 1.5% of the nation’s total citizenry. Even then, it applies—with limited exceptions—only when the following conditions of legal status are in effect: tribal membership within a federally recognized tribe, and residence within the geographic boundaries of a federally designated reservation. While Americans who meet these two criteria are subject to the same public laws as those affecting all other U.S. citizens, they must also attune themselves to an abundance of tribally-specific public laws.

Thirty-nine examples of these rarified public laws comprise the sample presented in this volume. Most are quintessential examples of U.S. policies toward tribes; a few are more obscure, yet are included as examples of the range of topics that Congress has addressed. This legislative data set was collected primarily during visits to the reading rooms of the Library of Congress and the National Archives in Washington, DC. Samples of transcripts of Senate and House dialogues and orations, collected during visits to the Public Library of Cincinnati and Hamilton County, Ohio, are presented as found within various volumes of the Congressional Record. Every effort has been made to present these texts as originally written, keeping their idiosyncrasies of spelling and syntax intact.

This volume highlights several legislative commentaries, including those found in articles and books by notables in the field, such as Francis P. Prucha, S. Lyman Tyler, Wilcomb Washburn, Robert M. Utley, Arrell M. Gibson, William T. Hagan, Philleo Nash, Lawrence C. Kelly, and Vine Deloria, Jr. Additional publications that influenced this project include a Lakota-based mental health curriculum developed collaboratively by Dr. Robin Herman and Gary Neidenthal, the journalistic and creative writings of Harvey Arden, and Dr. Tom Holm’s illuminating explanations of the dynamics of the Native American veteran experience. Samples of the the Meriam Report of 1928, an oft-referenced Bureau of Indian Affairs analysis of reservation operations and living conditions, appear within several chapters and in the appendix. Examples of key findings of more recent federal inquiries are also included. Statements made by Will Rogers, as gleaned from his newspaper columns and radio broadcasts about Capitol Hill goings-on between 1925 and 1935, appear in their original form; any review of public law-making during these years would be incomplete without savoring some of his brilliant, compassionate, and patriotic wisdom.

Interviews with several trusted colleagues—social workers, community advocates, combat veterans, college instructors, entrepreneurs, and other tribal community leaders—provided invaluable insights into ways tribal generations have shouldered the legacy of this legislative set. Ethnographic materials considered during the evolution of this collection derive in large measure from the works of Gregory Gagnon and Karen White Eyes, Severt Young Bear and R. D. Theisz, Elizabeth S. Grobsmith, and Joseph Starita. Reviews of a number of first-person narratives, including those found in the literary works of Chief Arvol Looking Horse, Leonard Peltier, Warren Petoskey, Sharon Brunner, and Michael Dorris, provided further insights into ways that individual tribal families have been affected by these laws.

This compilation of public laws represents one step in my decades-long quest to better understand the enduring power of America’s promise of Life, Liberty, and the Pursuit of Happiness to all citizens. My lifelong travels across the United States fostered my interest in Congressional actions that converted tribal land masses into reservations, national parks, and states. With hopes of expanding awareness about the importance of following the public lawmaking process with both an open mind and a critical eye, I gratefully bring to conclusion this leg of a rewarding journey that began long ago.

Introduction

My Country, ‘tis of thee, sweet land of Liberty, of thee I sing.

AMERICA’S NATIONAL IDEALS of Life, Liberty and Happiness have always functioned within a legal infrastructure, one comprised of both houses of Congress, the Office of the Presidency, and a national system of federal courts. Together, these three distinct power centers set all national policies, administer all federal programs, and defend the U.S. Constitution. But it is Congress, the repository of the combined intellect of the House of Representatives and the Senate, which creates all U.S. public laws. And it is Congress which constructs the wording that provides all Americans an architecture from which to suspend their own visions of America’s promise: "Life, Liberty, and … Happiness."

Congressional Lawmaking

U. S. PUBLIC LAWS

Congress expresses the will of the American People through the national policies it proposes, considers, and, in some cases, votes into law. This public lawmaking happens in a congressional whirlpool of conflicting parties, contrasting priorities, and cantankerous mindsets. From the earliest legislative days to the present, special interest groups have influenced policy-making by promoting their own economic and social power agendas to federal legislators, and their state and local constituencies. Contemporary special interest groups include forces Dwight D. Eisenhower once dubbed the military-industrial complex, as well as the insurance industry, energy conglomerates, banking and finance industries, consumer groups, religious organizations, health advocates, large non-governmental organizations, and scores of other small-to-global corporate and nonprofit players. Examples of the more ennobling and enduring historical outcomes of this ongoing congressional activity include the nation’s national parks system, child labor laws, and safer workplaces. Other culturally adaptive outcomes include the near eradication of polio in the United States, the increased safety of highways and bridges, the preservation of green spaces for wildlife, child protective services, and cleaner air.

Every federal law is a public law and a time-stamped legislative action. By casting winning votes, legislators collectively create public laws that assert mechanisms of control over the behaviors or resources of the citizenry. Public laws resonate with the voice of the people and constitute the essence of public policy. In theory, the purpose of all public lawmaking is to support the public good. The extent to which any given public law affects each individual citizen is weighted by pertinent personal, local, and regional circumstances. Obviously, laws that fund health services for low-income children affect families living at the top of the economic ladder differently than those dangling from the bottom rung, and laws that create construction jobs in Nevada may never make the news in the Sunshine State.

Individual public laws can be confusing in terms of their overall intent. Some contain multiple, and often conflicting, elements. For example, a single legislative proposal may build dissimilar objectives into its text, as when the funding of military equipment upgrades appear alongside funding requests for a renewal of public health services for senior citizens. And although the titles of many public laws reveal their intent, some monikers tell little to nothing about the content of the law; one example, the Indian Employment Act of 1979, did not address any aspect of Indian Employment, as its only mandates focused on the distribution of Bureau of Indian Affairs (BIA) retirement benefits to BIA retirees.¹ And even when the purpose of a given law is readily apparent, the ramifications of its application are often more oblique.

Whenever Congress is in session, all of its proceedings are public. Every public discussion, oration, filibuster, debate, and call for votes is captured as part of the public record. This written record—the Congressional Record—contains verbatim texts of House and Senate committee reports, proposals, and public laws, as read into the official record prior to the call for votes. Members of Congress, their staff, and the general public can all access these records through the Library of Congress.² Whether or not there exist any resources that can support a given legislative change is another matter. In some cases, specific changes are mandated by public law, yet no change comes, sometimes due to a lack of funding to support the change initiative. One example is an act dated December 8, 1911, whereby Congress set aside a site on Staten Island as the location of a proposed Native American Indian Memorial. The anticipated private funding never materialized. Similarly, Indian Health Service legislation of the 1970s was never applied in a robust manner, as its funding was filtered through a nation-wide competitive system which gave low priority to the delivery of health services on reservations.

PUBLIC LAWS IN THE SHADOWS

Many of the earliest of these laws reflect the confusion and cultural arrogance of the times, and their mandates continue to challenge the resilience of contemporary tribal communities. Congressional law-making specific to tribes began in earnest in 1819 with passage of the Civilization Act, and continued with the 1830 passage of the Indian Removal Act.³ These early sui generis laws grew out of this nation’s need to mitigate cross-cultural conflicts and manage communications between the United States and a broad range of domestic sovereign nations—American Indian tribes.⁴ The U.S. Constitution had given Congress the responsibility of regulating trade with federally-recognized tribes through the language of its oft-cited commerce clause. Legal scholars, including Vine Deloria, Jr. (here quoted), have identified fundamental expansions in the role of Congress, over time, in its dealings with American Indian tribes.

The commerce clause, Section 8, clause 3 or Article I of the Constitution, gives Congress the power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes. In theory Congress should have no greater power over Indian nations than it does over states, but in historical practice such has not been the case. The initial tendency of Congress was to establish the rules and regulations under which citizens of the United States could have trade and intercourse with Indian nations. Early statutes reflect this narrow view of the power and responsibilities of the legislative branch. Within two decades of the adoption of the Constitution, however, Congress began to appropriate funds for the civilization of Indians, and the creation of these kinds of funds represented a fundamental shift in Congress’ view of its powers under the commerce clause. The goal was wholly humanitarian. Faced with the fictional dilemma of either exterminating or assimilating the Indian tribes, Congress chose the latter course, and began to develop a policy that would accomplish this goal.⁵

This set of tribally-focused public laws is full of contradictions. Some of these laws took children away from caring, capable parents, sending them to distant institutions for years of cultural indoctrination; in time, contradictory congressional actions returned the right to care for and educate children to the families and tribal communities of their birth. After criminalizing the use of American Indian languages with one law, Congress later recognized indigenous languages as national treasures with another. Likewise, although Congress once prohibited traditional American Indian marriages, religious practices, clothing, and hairstyles, in time Congress would overturn all such prohibitions. Generally speaking, in the context of the present legislative set, the concept of federal funding does not necessarily equate to any expenditure of tax dollars; rather, it is often a euphemism for payments of interest or other income derived from the use of reservation lands held in trust by the United States through provisions of some of the laws of this set. For example, funds collected through the federal leasing of reservation lands to off-reservation ranchers, mining companies, or military bases, might be applied to support reservation-based food programs, off-reservation boarding schools, or federal law enforcement on reservations.

CONGRESSIONAL FACT-FINDING

Congress can move with agility from one priority to another. Its collective perspective adjusts to new information and new understandings. It attunes its lawmaking to changing national circumstances and to new local, regional, or national priorities. Still, its members must make decisions within the limits of their own individual understandings of national issues; personal, regional, and social biases factor into mindsets that can appear at some times to race backwards, forwards, and sideways through history. In order to bridge gaps in the life experiences and expertise of its members, Congress forms fact-finding committees on an as-needed basis. Such committees may spend weeks or years gathering data for the purpose of better informing and instructing Senate and House discussions; eventually, they will present their findings to members of the House and Senate in Congress assembled. Typically, their reports include some history on the topic of interest, along with research-based recommendations for subsequent congressional consideration. These reports provide legislators with unfiltered, in-depth, primary source data that may not be available from any other readily available, verifiable, and cohesive source. The Meriam Report of 1928 is one example of the use of subcommittee investigations to identify gaps in legislative efficacy.

This Legislative Data Set

Over the course of more than 100 years, Congress has fashioned hundreds and more sui generis public laws specific to American tribal communities. Residents of contemporary reservation communities know the history, outcomes, and day-to-day responsibilities associated with this additional layer of Public Law. Between 1885 and 1990, Congress generated more tribally-focused public laws than those included within this legislative sample; however, these constitute much of the central architecture of America’s ongoing and complicated relationship with its domestic sovereign nations, the American Indian tribes. These laws continue to frame the relationships of contemporary reservation communities and their state and federal counterparts.

This legislative set reflects the outcomes of about one month’s worth of congressional work days—mornings, afternoons and evening hours—time-scattered throughout a century of American public law-making, 1885-1990. Collectively, these few days of congressional action left an indelible mark upon the American Psyche and the American landscape.

The purpose of each of these quintessential Indian Policy acts is, typically, readily apparent; the ramifications of each, however, are more obtuse. The laws of this collection mandated more than fifty general outcomes. These predictable results followed eleven primary legislative themes. The most common anticipated outcomes were the enhancement of tribal authority, the transfer of lands to whites, and the provision of economic opportunities to residents of towns bordering reservations or towns where Indian boarding schools were located. Next in frequency were adjustments to state and federal jurisdiction over reservation resources, the placement of limits on tribal power, and the provision of economic opportunities for reservation households. Additional themes, presented here in relative order of frequency, included the incarceration of tribal adults, the removal of tribal children from reservation communities, the provision of health services, the return of tribal children to their families, and the granting of U.S. citizenship. Some laws (e.g., the Seven Major Crimes Act of 1885) mandated only one outcome; others (e.g., the Indian Reorganization Act) stipulated multiple outcomes. The most significant secondary result of this body of law was the formation of many western states and the resulting expansion of the land mass of the United States.

This sampling of over 100 years of congressional actions toward tribes relies primarily upon primary federal sources: original transcripts of Senate and House sessions, congressional subcommittee reports, and federal commission reports to Congress. Nowhere is the historic will of the American people more transparent than in the laws of this legislative sample. The mark these policies left on the American Psyche and U.S Geography is indelible. The enduring social dichotomy these laws established, still vibrant today, lives in the uniquely American relationship of today’s American Indian tribes and their less regulated compatriots.

Figure 1

This ornate interior ceiling can be found in the lobby of the Thomas Jefferson Building, one of three Library of Congress buildings located within close proximity of each other in Washington, D.C. The Library of Congress was established through an act of Congress in 1800.

Figure 2

An enactment in 1891 mandated an allocation of funding to continue the Library of Congress construction project, stating: For continuing the construction of the building for the Library of Congress, and for each and every purpose connected with the same, six hundred thousand dollars.

Figure 3

An elaborate staircase in the Thomas Jefferson Building of the Library of Congress features depictions of four cherubic toddlers, including one of apparent Native American descent.

Figure 4

Federal laws affect all Americans every day, either directly or indirectly, providing the legislative architecture which frames the context of American discourse and influences the experiences of all citizens.

Figure 5

"Be it enacted by the Senate and the House of Representatives of the United States in Congress assembled, That… is the phrasing which follows each enactment’s initial statement of intent. This photo, titled Congress in session in the Capitol," was taken between 1890 and 1920 and is part of the collections of the Library of Congress.

Figure 6

Congressional acts do not always survive the scrutiny of the courts and state legislatures. When Congress fought the use of child laborers in dangerous circumstances it was met with strong opposition. The Keating-Owen Act of 1916, which prevented the interstate shipment of goods produced in factories by children under 14 and in mines by children under 16, was struck down in the Hammer v. Dagenhart (1918) ruling. Likewise, the Pomerane Amendment of 1918, which taxed companies that used child labor, was declared unconstitutional in Bailey v. Drexel Furniture (1922) on the grounds that it was an unwarranted exercise of the commerce power of the federal government and violated states’ rights. In 1924, the Senate passed a Constitutional amendment banning child labor, but it was never ratified by enough states. Finally, the Fair Labor Standards Act of 1938 prohibited the full-time employment of those 16 and under (with a few exemptions) and enacted a national minimum wage which made employing most children uneconomical. It received the Supreme Court’s blessing. [Source: Whaples, Robert. Child Labor in the United States. EH.Net Encyclopedia, edited by Robert Whaples. October 7, 2005. URL: http://eh.net/encyclopedia/article/whaples.childlabor].

Legislated Geographies

Some reservations are the remnants of a tribe’s original land base. Others were created by the federal government for the resettling of Indian people forcibly relocated from their homelands. Not every federally recognized tribe has a reservation.1

AT THE FIRST dawn of American imaginings, there were no reservations. For thousands of years, hundreds of indigenous populations had inhabited their respective traditional North American homelands; as most of those homelands became the lands of the United States of America, a number of American Indian reservations also came into being. The Bureau of Indian Affairs website now posts information about more than three hundred reservations (one of which is in Alaska):

There are approximately 326 Indian land areas in the U.S. administered as federal Indian reservations … The largest is the 16 million-acre Navajo Nation Reservation located in Arizona, New Mexico, and Utah. The smallest is a 1.32-acre parcel in California where the Pit River Tribe’s cemetery is located. Many of the smaller reservations are less than 1,000 acres.

Prior to the 1830s, eastern tribes lived in their respective traditional homelands east of the Mississippi. In the Southeast, these homelands included well-established farming communities. The fact that few contemporary tribal communities are situated in their traditional homelands is due, in large part, to the tribally focused genre of legislation which began in 1819. Thomas Jefferson influenced congressional thinking about the future of American Indian tribes by encouraging Congress to develop ways to force cultural changes within Indian communities.² Congress responded with its enactment of the Civilization Act of 1819. Jefferson’s expressed intention was the conversion of economic, religious, linguistic, and other cultural patterns of Native American populations into alignment with the cultural norms of the then idealized American farming lifestyle.³

Eleven years into its civilization initiative, Congress enacted the Indian Removal Act of 1830; its passage resulted in the diasporas faced by many eastern tribes. This act served as the legalistic mechanism for the takeover of eastern tribal farms, farmhouses, livestock, and orchards, following the deportation of eastern Indian populations to lands west of the Mississippi River. Dozens of tribes, the Creek and the Cherokee among them, were forced to leave the farms and woodlands of their ancestors.⁴ They headed westward, into the lands of western tribes. Most walked. All journeyed at the command of mounted U.S. military units and thousands died along the way. Perhaps as significant as the forced migrations this 1830 legislation caused to eastern tribes, was the inherent message this law proclaimed to western tribes, through its demonstration of an American ideology which favored the destruction of tribal communities.

The Indian Removal Act of 1830

AN ACT

To provide for an exchange of lands with the Indians residing in any of the states or territories, and for their removal west of the river Mississippi. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That it shall and may be lawful for the President of the United States to cause so much of any territory belonging to the United States, west of the river Mississippi, not included in any state or organized territory, and to which the Indian title has been extinguished, as he may judge necessary, to be divided into a suitable number of districts, for the reception of such tribes or nations of Indians as may choose to exchange the lands where they now reside, and remove there; and to cause each of said districts to be so described by natural or artificial marks, as to be easily distinguished from every other.

SEC. 2. And be it further enacted, That it shall and may be lawful for the President to exchange any or all of such districts, so to be laid off and described, with any tribe or nation of Indians now residing within the limits of any of the states or territories, and with which the United States have existing treaties, for the whole or any part or portion of the territory claimed and occupied by such