Introduction to Federal Indian Regulatory Policy & Background

INTRODUCTION TO FEDERAL INDIAN REGULATORY POLICY & HISTORY

To best understand the present housing regulatory obstacles impeding Pueblo TDHEs ability to supply and maintain housing units for tribal members. It is imperative to understand the evolution of the federal Indian policy and the shifting government to government relationship between the United States and Indian Country. The following section will provide a brief historical outlook of the 7 eras of federal Indian policy. Traditionally in the study of Indian law, scholars break down the evolution of federal Indian policy in a chronological order based on thematic patterns that encompass the zeitgeist of an era, such as assimilation or relocation. In this section I reference NYU professor of Indian law, Stephen L. Pevar’s The Rights of Indians and Tribes (2012) division of eras as a starting basis to my overview of the evolution of federal Indian policy.

TRIBAL INDEPENDENCE (1492 - 1770S)

The Tribal Independence spanning between 1492 - 1770. This era begins at the arrival of Christopher Columbus and the Spanish, in addition to the arrival of the early Dutch, British, and French settlers. During this period Indians maintained full independence and international sovereignty. Early settlers depended on Indian nations for trade and knowledge of land and agriculture to establish colonies. Early settler and Indian interaction were often costly for Indians, who often fell victim to new diseases brought over by Europeans. 50 Additionally the growth of settler colonies and their mission to acquire land and promote Christianity increasingly grew which threatened the well-being of Indian tribes. 51

SOVEREIGN NATION INDEPENDENCE ERA (1770S - 1830S)

The era Sovereign Nation Independence Era spanned between 1770 - 1830s. During the period the United States of America was officially formed July 4, 1776 following the signage of the Declaration of Independence. 52 According to Pevar, Indian tribes still posed a military threat to the newly United States of America, thus treaties with Indian tribes were sought by the US government to encourage peace. 53 The United States would eventually seek to establish itself as the dominant power entity amongst the Indians as time unfolded and the military strength of the United States grew. In 1819, the US Congress passed the Civilization Fund Act, which allocated $10,000 amongst missionaries and philanthropists to educate Indians on American governance and Christianity. The intent of the program was to persuade Indian leaders to create a tribal government that can obtain direction from the federal government. 54 Although the Civilization Fund Act was generally unsuccessful, it put forth the ideology that the federal government of the United States should manage all Indian tribes.

50 Pevar, Stephen. (2012). The Rights of Indians and Tribes. New York, NY [etc.: Oxford University Press. 51 Ibid. Wolfe, Patrick. (2006) 52 USAGov. (2020). History and Historical Documents. Retrieved from https://www.usa.gov/history 53 Ibid. Pevar, Stephen. (2012) 54 Nichols, David. (2016). Civilization versus Commerce. In Engines of Diplomacy: Indian Trading Factories and the Negotiation of American Empire (pp. 151-172). Chapel Hill: University of North Carolina Press. Retrieved from www.jstor.org/ stable/10.5149/9781469626901_nichols.13

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The ideology of managing tribes officially came into fruition in 1831, with the Supreme Court ruling was Cherokee Nation v. Georgia (1831). This case ruling officially established the status of Indians as sovereign nations dependent nations to the United States. Additionally this ruling established a trust between the Indian tribes and the federal government’s assurance to protect Indian tribes against state and local police powers, and assist and fund programs that are in the best interest of Indians. 55 Lastly in 1834, the Bureau of Indian Affairs (BIA) was created out of the Department of War to serve as the federal governing body to maintain relationships with Indians tribes and enforce federal policy and program compliance amongst tribes. 56

RELOCATION AND REMOVAL (1830 - 1880S)

The Relocation and Removal Era from the 1830 - 1880s, is defined by the era of Indian policies anti-Indian policies designed to remove Indian tribes from their land and relocate to a pre-selected area chosen by the federal government. The prevailing figure of this era was President Andrew Jackson, who championed the idea of Manifest Destiny. Manifest Destiny encouraged western expansion of the United States from east coast to west coast, in efforts to spread “civilization” i.e. white American culture across North America. 57 A major bill passed during this era was the Indian Removal Act of 1830. The Removal Act authorized the right of the federal government and the BIA to purchase land from tribes and relocate them to designated reservation areas. Reservations acted as containment areas for tribes to further be monitored by the BIA and federal government. According to historian Alfred A. Cave, the Indian Removal Act had no provisions to forcibly seize land from tribes if they were to refuse to sell. Despite this provision, the federal government violently removed Indians from their land to claim territory for the United States. 58 The most prominent instance of Indian removal was the Trail of Tears, in which the Cherokee Nation alone lost more than 5000 members in their forced migration outside west of Mississippi. 59

ALLOTMENT AND ASSIMILATION (1880S - 1930S)

The Allotment and Assimilation era spanned from the 1880s - 1930s. According to scholars the goal of the federal government during this era was to “save” the Indian with the transformative power of private property i.e. It was understood by the federal government, Indian tribes championed a social structure that encouraged communal land ownership which was holding Indians back from economic propensity. 60 In 1887, Congress passed Dawes General Allotment Act. The Dawes Act set out to encourage tribes to adopt a nuclear family living structure by giving heads of households 160 acres and single persons over the age of 18 approximately 80 acres to farm and build a single-family home. Initially allotted

55 Ibid. Lucero, Robert. (2007) 56 McCarthy, Robert. (2004). The Bureau of Indian Affairs and the Federal Trust Obligation to American Indians. BYU Journal of Public Law, 19(1), 1-160. 57 Ibid. Pevar, Stephen. (2012) 58 Alfred A. Cave (2003) Abuse of Power: Andrew Jackson and the Indian Removal Act of 1830, The Historian, 65:6, 1330-1353, DOI: 10.1111/j.0018-2370.2003. 00055.x 59 Ibid. Pevar, Stephen. (2012) 60 Kennth H, Bobroff. (2001). Retelling Allotment: Indian Property Rights and the Myth of Common Ownership. Vanderbilt Law Review, 54(4), 1557-1624. 23

land to Indians were prohibited by the BIA from being sold for a minimum of 25 years in which Indians were expected to assimilate and absorb American values and culture during the time. However, in 1906 the Congress passed the Burke Act, which permitted Indians to sell their land earlier if deemed “capable enough to handle their affairs” by the BIA. Land that wasn’t allotted was sold by the BIA as surplus land to non-Indians. At the inception of the Dawes Act, Indian Country owned 138 million acres of land by the end Indian Country owned 52 million acres.

In regard to Pueblo Indians it is important to note, upon the initial inception of the Dawes Act, Pueblo tribes were still technically considered full citizens of the United States of America, until 1912. Following 1924, the Pueblo Land Grant Act protected Pueblo tribes from further land loss and validated their claims to land under the Spanish Crown land titles. 61

INDIAN REORGANIZATION (1930S - 1940S)

Leading up to 1934, a series of long-term congressional studies on the socio-economic conditions of Indian tribes were issued. These reported detailed high mortality rates, disease, housing conditions and economic hardships on reservations as well as assessed the impact of the Dawes Act. 62 In 1934, the federal government officially suspended the Dawes Act after assessing its socio-economic and cultural damage to Indian Country. Following the suspension of the Dawes Act, Congress passed the Reorganization Act of 1934 (IRA). The main goal of the IRA was to encourage tribal self-governance by permitting tribes to adopt a tribal constitution which will be approved by the Secretary of Interiors. 63 Tribes who created IRA approved constitutions obtained access to a revolving line of credit to fund economic development. Additionally, the IRA created the ability for tribes to create a tribal court to apply their own form of justice over tribal members. Lastly the IRA created preferred hiring preference for Indians seeking employment within the BIA. 64 Many of these key features of the IRA are still active today such as tribal constitutions and tribal court.

TERMINATION ERA (1950S - 1960S)

Following the short-lived Reorganization Era, which promoted self-governance. The Termination Era, spanning from the 1950s - 1960s, is marked by an era of aggressive antiIndian policies focused on assimilation. The majority of IRA Indian programs designed to assist Indian tribes as sovereign nations were abolished almost overnight when President Eisenhower took office in 1953. 65 The driving theory behind Termination Era policies was to subjugate tribes and tribal members to the same state and federal laws of non-Indians and end the US trustee relationship with tribes. 66 Three prominent policies that emerged were as follows: Resolution 108 of 1953, Public Law 280 of 1953, and the Urban Relocation Act

61 Ibid. Lucero, Robert. (2007) 62 Ibid. Davis, Virginia. (2002) 63 Ibid. McCarthy, Robert. (2004) 64 Koppes, Clayton. (1977). From New Deal to Termination: Liberalism and Indian Policy, 1933-1953. Pacific Historical Review, 46(4), 543-566. doi:10.2307/3638162 65 Ibid. Pevar, Stephen. (2012) 66 Ibid. Koppes, Clayton. (1977). 24

of 1956. Resolution 108 called for the official termination of tribes that were believed to be economically sufficient enough to be immersed into American society. The termination of a tribe meant the immediate withdrawal of all federal aid, services, protection and the cessation of a reservation, which was sold off to non-Indians. All tribes in states of California, New York, Florida, and Texas terminated addition to select tribes across the nation, approximating to 109 tribes in total. Moreover, Public Law 280, gave the states of Alaska, California, Minnesota, Nebraska, Oregon and Wisconsin police powers to govern tribes. 67 Lastly, the Indian Relocation Act provided small stipends of a couple hundred dollars and one way ticket for tribal members on reservations to relocate to large urban centers such as Los Angeles, New York, Denver, Seattle, Minneapolis, and many more. However according scholars such as Kasey Keeler, many Indians who relocated to cities faced discrimination from white Americans and were routinely denied access to loans from lending institutions who under the assumption the federal government provided support for Indians. 68 Tribal Self-Determination (1960s - Present)

According to scholars, President Nixon was amongst the first presidents to embrace selfdetermination for Indians following the Termination Era and pressure for the American Indian committee after a series of marches and demonstrations. 69 The Tribal Self-Determination Era, kicked started in the late 1960s and it is currently ongoing today. The driving justifications behind self-determination policies is that tribes can better and efficiently use federal resources to cater to their own needs than an outside governing body. Since the late 1960’s numerous Indian federal policies have been passed to give Indians more say in education curriculum, religious expression, tribal governance structure, as well as more leverage to allocate funds for economic and housing development. 70

67 Ibid. McCarthy, Robert. (2004) 68 Ibid. Keeler, Kasey. (2016) 69 Washburn, K. Kevin. (2017). What the future holds: The changing landscape of federal Indian policy. Harvard Law Review Forum, 130(6), 200-232. 70 Ibid. Pevar, Stephen. (2012) 25