A Brief History of U.S. Laws Applied to American Indians

In 1983, Vine Deloria and Clifford M. Lytle in American Indians, American Justice outlined six periods of federal Indian policy characterized by the impact of federal actions for trying to resolve the "American Indian problem."

In the first phase, Discovery, Conquest, and Treaty-making (1532-1828), Indian people were recognized "as legitimate entities capable of dealing with the European nations by treaty" and this became the basis for defining legal and political relationships among the parties.

The second period, Removal and Relocation (1828-1887), began when the Indian Removal Act of 1830 was passed in order to move Indian people westward away from the approaching white civilization. During this period, various treaties began establishing reservations. The structure of these agreements was repeatedly violated by westward expansion, however, and these violations led to a period of Allotment and Assimilation (1887-1928). During this period two-thirds of the reservation lands were reduced through allotment; jurisdiction over felony crimes became federal; the boarding school system was developed and other legislation was passed to promote assimilation.

The next phase, Reorganization and Self-Government (1928-1945), brought an assessment of social and economic status of Indian people under the "Meriam Report." Recommendations from this report eventually became legislation. The Indian Reorganization Act of 1934 (IRA) passed to end the allotment policy and "to enable tribes to organize for their common welfare and to adopt Federally approved constitutions and bylaws." The constitutions were new and strange to most tribes and comprised a restructuring of their traditional ways.

Termination (1945-1961) was a period that saw the termination of several tribes by the passage of congressional resolutions and legislation. The reason for the termination policy was to reduce and eventually eliminate the Federal budget for Indian people.

Self-Determination (1961-Present) is a period in which many major pieces of legislation were enacted. "By the late 1960's, the policy of termination was largely regarded as a failure, and the assimilationist ideal began to fade" (Canby, 1988). The Indian Civil Rights Act of 1968 essentially imposed the basic requirements of the Bill of Rights that were previously not applicable to American Indians. Other laws enacted include: the Indian Education Act of 1972, the Indian Self-Determination and Education Assistance Act of 1975, and the establishment of the Senate Select Committee on Indian Affairs.

As this last period indicates, the trend of dealing with American Indians with an adversarial attitude has begun to change. President George Bush (Special Edition, 1991) reaffirmed the Federal government's recognition of tribal sovereignty. He stated, "... the existence and durability of our unique government-to-government relationship is the cornerstone of the Administration's policy of fostering tribal self-government and self-determination."

Because federal policy currently encourages tribal sovereignty and has moved toward helping tribes become autonomous, tribal governments are excluded from complying with much federal legislation, including the ADA. In general, most tribes are sovereign nations with legal authority and responsibility for their people and lands. The relationship of the various tribal governments to the government of the United States can be most simply understood as one based on negotiated treaties. "Indian Law has always been heavily intertwined with federal Indian policy, and over the years the law has shifted back and forth with the flow of popular and governmental attitudes toward Indians....At the risk of oversimplification, they may be reduced to four. First, the tribes are independent entities with inherent powers of self-government. Second, the independence of the tribes is subject to exceptionally great powers of Congress to regulate and modify the status of the tribes. Third, the power to deal with and regulate the tribes is wholly federal; the states are excluded unless Congress delegates power to them. Fourth, the federal government has a responsibility for the protection of the tribes and their properties, including protection from encroachments by the states and their citizens." (Canby, 1994). This means that, under current Federal law, for the ADA to apply on tribal lands⁽¹⁾ either a separate negotiation must be conducted with each of the approximately 547 tribes currently recognized by the Federal government or the tribes must initiate the process for themselves. While this arrangement clearly allows the tribes to protect their cultures and values, it means that special efforts must be made to extend potentially good ideas to those on tribal lands who might benefit from them.

Tribal governments are as varied as the tribes, native villages and reservations they represent. Most tribes were severely damaged by white conquest and indigenous systems of government fell to federal management. Many tribes were unnaturally grouped on reservations. "The Indian Reorganization Act of 1934 provided that any tribe or tribes 'residing on the same reservation had the right to organize and adopt a constitution ... the "new 'constitutional tribes often included more than one ethnic tribe" (Canby, 1988). And while the new constitutions, designed by the Federal government, were adopted by many tribes, many other tribes rejected the provisions of the IRA outright.

Of the tribal governments that accepted the new constitutions, many have made significant changes to meet the needs of their people. For example, one tribe's government is comprised of 10 council members elected from districts that represent the four confederated tribes living on that reservation. They meet twice a week to manage the business of the tribe. Another tribal government has over 400 delegates representing a single tribe and is structured similarly to the U.S. Congress. They meet quarterly. The result is that with each tribal group or reservation a different approach to legislative change is needed. Disability policies must be fashioned with recognition of these disparate governmental structures.

From: Fowler, L., Dwyer, K., Brueckmann, S., Seekins, T., Clay, J., & Locust, C. (1996). American Indian approaches to disability policy - Establishing legal protections for tribal members with disabilities: Five case studies. Missoula: Research & Training Center on Rural Rehabilitation, Montana Affiliated Rural Institute on Disabilities, The University of Montana-Missoula.

1. ¹Tribal lands include federally recognized reservations, Alaska Native villages and tribal trust lands.

American Indian Disability Technical Assistance Center

The University of Montana Rural Institute: A Center of Excellence for Disabilities Education, Research and Services,
52 Corbin Hall
Missoula, MT 59812-7056 Toll Free: 866 - 4 - AIDTAC or (406) 243-5441

(Opinions expressed are those of RTC: Rural staff and not those of the U.S. Department of Education)


	Ruralfacts: A Brief History of U.S. Laws Applied to American Indians
In 1983, Vine Deloria and Clifford M. Lytle in American Indians, American Justice outlined six periods of federal Indian policy characterized by the impact of federal actions for trying to resolve the "American Indian problem." In the first phase, Discovery, Conquest, and Treaty-making (1532-1828), Indian people were recognized "as legitimate entities capable of dealing with the European nations by treaty" and this became the basis for defining legal and political relationships among the parties. The second period, Removal and Relocation (1828-1887), began when the Indian Removal Act of 1830 was passed in order to move Indian people westward away from the approaching white civilization. During this period, various treaties began establishing reservations. The structure of these agreements was repeatedly violated by westward expansion, however, and these violations led to a period of Allotment and Assimilation (1887-1928). During this period two-thirds of the reservation lands were reduced through allotment; jurisdiction over felony crimes became federal; the boarding school system was developed and other legislation was passed to promote assimilation. The next phase, Reorganization and Self-Government (1928-1945), brought an assessment of social and economic status of Indian people under the "Meriam Report." Recommendations from this report eventually became legislation. The Indian Reorganization Act of 1934 (IRA) passed to end the allotment policy and "to enable tribes to organize for their common welfare and to adopt Federally approved constitutions and bylaws." The constitutions were new and strange to most tribes and comprised a restructuring of their traditional ways. Termination (1945-1961) was a period that saw the termination of several tribes by the passage of congressional resolutions and legislation. The reason for the termination policy was to reduce and eventually eliminate the Federal budget for Indian people. Self-Determination (1961-Present) is a period in which many major pieces of legislation were enacted. "By the late 1960's, the policy of termination was largely regarded as a failure, and the assimilationist ideal began to fade" (Canby, 1988). The Indian Civil Rights Act of 1968 essentially imposed the basic requirements of the Bill of Rights that were previously not applicable to American Indians. Other laws enacted include: the Indian Education Act of 1972, the Indian Self-Determination and Education Assistance Act of 1975, and the establishment of the Senate Select Committee on Indian Affairs. As this last period indicates, the trend of dealing with American Indians with an adversarial attitude has begun to change. President George Bush (Special Edition, 1991) reaffirmed the Federal government's recognition of tribal sovereignty. He stated, "... the existence and durability of our unique government-to-government relationship is the cornerstone of the Administration's policy of fostering tribal self-government and self-determination." Because federal policy currently encourages tribal sovereignty and has moved toward helping tribes become autonomous, tribal governments are excluded from complying with much federal legislation, including the ADA. In general, most tribes are sovereign nations with legal authority and responsibility for their people and lands. The relationship of the various tribal governments to the government of the United States can be most simply understood as one based on negotiated treaties. "Indian Law has always been heavily intertwined with federal Indian policy, and over the years the law has shifted back and forth with the flow of popular and governmental attitudes toward Indians....At the risk of oversimplification, they may be reduced to four. First, the tribes are independent entities with inherent powers of self-government. Second, the independence of the tribes is subject to exceptionally great powers of Congress to regulate and modify the status of the tribes. Third, the power to deal with and regulate the tribes is wholly federal; the states are excluded unless Congress delegates power to them. Fourth, the federal government has a responsibility for the protection of the tribes and their properties, including protection from encroachments by the states and their citizens." (Canby, 1994). This means that, under current Federal law, for the ADA to apply on tribal lands⁽¹⁾ either a separate negotiation must be conducted with each of the approximately 547 tribes currently recognized by the Federal government or the tribes must initiate the process for themselves. While this arrangement clearly allows the tribes to protect their cultures and values, it means that special efforts must be made to extend potentially good ideas to those on tribal lands who might benefit from them. Tribal governments are as varied as the tribes, native villages and reservations they represent. Most tribes were severely damaged by white conquest and indigenous systems of government fell to federal management. Many tribes were unnaturally grouped on reservations. "The Indian Reorganization Act of 1934 provided that any tribe or tribes 'residing on the same reservation had the right to organize and adopt a constitution ... the "new 'constitutional tribes often included more than one ethnic tribe" (Canby, 1988). And while the new constitutions, designed by the Federal government, were adopted by many tribes, many other tribes rejected the provisions of the IRA outright. Of the tribal governments that accepted the new constitutions, many have made significant changes to meet the needs of their people. For example, one tribe's government is comprised of 10 council members elected from districts that represent the four confederated tribes living on that reservation. They meet twice a week to manage the business of the tribe. Another tribal government has over 400 delegates representing a single tribe and is structured similarly to the U.S. Congress. They meet quarterly. The result is that with each tribal group or reservation a different approach to legislative change is needed. Disability policies must be fashioned with recognition of these disparate governmental structures. From: Fowler, L., Dwyer, K., Brueckmann, S., Seekins, T., Clay, J., & Locust, C. (1996). American Indian approaches to disability policy - Establishing legal protections for tribal members with disabilities: Five case studies. Missoula: Research & Training Center on Rural Rehabilitation, Montana Affiliated Rural Institute on Disabilities, The University of Montana-Missoula. 1. ¹Tribal lands include federally recognized reservations, Alaska Native villages and tribal trust lands. American Indian Disability Technical Assistance Center The University of Montana Rural Institute: A Center of Excellence for Disabilities Education, Research and Services, 52 Corbin Hall Missoula, MT 59812-7056 Toll Free: 866 - 4 - AIDTAC or (406) 243-5441 (Opinions expressed are those of RTC: Rural staff and not those of the U.S. Department of Education)

Ruralfacts: A Brief History of U.S. Laws Applied to American Indians