The Legal History of the United States and Its Attack Against Native Americans

Since May 2021, more than 1,308 unmarked graves have been found at four former Indian Residential Schools in Canada. [1] These discoveries have renewed significant interest in investigating and speaking out against the oppression of Native Americans. Indian Residential Schools particularly demonstrate that oppression against Native Americans has extended beyond mere assimilation efforts to include outright elimination tactics in pursuit of a contiguous settler state. Indian Residential Schools have recently become an impetus for exploring elimination tactics across numerous sectors, including the legislative branch of American government. 

. . .

“Indian” Residential Schools: Kill the Native and the Man

Between 1883 and 1997, 150,000 Native children were often forcibly removed from their homes and placed into distant boarding schools that imposed a white, Christian settler culture. [2] Given that unmarked graves have been found at four of the 139 Indian Residential schools and the scale of Native removal, the 1,308 recently discovered, unmarked graves are likely a fraction of the numerous others that exist and are yet to be found. [3] 

Along with experiencing cultural genocide, the students at the Indian Residential schools faced a system severly underfunded and riddled with deliberate negligence that caused their massive deaths. [4] There have been attempts to whitewash and obscure the severity of mistreatment at the Indian Residential schools, often under the guise of unfortunate luck and inevitable disease. [5] 

The federal Canadian government failed to prevent and in many ways exacerbated the extreme circumstances in the Indian Residential Schools. Underfunding was a prominent issue, with “the per capita federal grant provided for food in most schools [being] half that required to maintain a balanced diet.” [6] Authorities were aware of the severe malnourishment of students at the Indian Residential Schools, but they decided to capitalize and experiment on sick Indigenous children rather than resolve the problem. L.B. Pett, head of the federal Nutrition Division, experimented with nutrition interventions (and non-interventions) on malnourished students across the schools. [7]

Malnourishment, compromised immune systems, and lack of ventilation and quarantine facilities amplified the prevalence of diseases such as Tuberculosis. Sick children were sent to segregated, underfunded hospitals that received half the per capita funding of non-Indigenous hospitals. Families were uninformed when their children were sick or died; graves were intentionally unmarked. Not only did settler society seek to eliminate traces of Indigeneity among the living, it sought to silence the dead so as to not have to acknowledge that they ever existed. [8] 

“Kill the Native, save the man” is commonly presumed to have been the central doctrine of residential schools. However, the recently discovered mass graves illustrate that there were no attempts to “save the man,” either. Settler society is rooted in Indigenous erasure that is more nuanced and comprehensive than merely assimilation efforts, in Canada and around the world. Tracing land laws and blood quantum regulation policies of the United States additionally illustrates the comprehensive oppression and erasure of Indigenous peoples by settler society. 

. . . 

Land Laws and Blood Quantum Regulations: The Erasure of Indigenous Peoples 

Historian Patrick Wolfe in his “Settler Colonialism and the Elimination of the Native” argues, “[Colonialism] strives for the dissolution of native societies…it erects a new colonial society on the expropriated land base. Settler colonizers come to stay: invasion is a structure not an event” (p. 388). [9] Access to territory is central to settler society’s mission, or as Wolfe adds, “Territoriality is settler colonialism’s specific, irreducible element” (p. 388). [10] The threat of Indigenous land ownership therefore becomes clear, and it is unsurprising that initial legal measures taken against Indigenous people heavily revolved around issues of territory. 

The Indian Removal Act of 1830 is often cited as a major example and precedent of federal oversight over Indigenous removal and relocation. The Act is a response to measures taken by the state of Georgia years prior. Following the Louisiana Purchase in 1803, the state of Georgia gave up land claims to the west in exchange for the federal government’s promise to acquire the Cherokees’ land and turn it over to the state for settler settlement. By the 1820s, alarm grew at the increasingly assimilated Cherokees who spoke English, were Christian, practiced agriculture, and adopted a government and constitution modeled after the United States. [11] As Wolfe explains, the Cherokees’ extraordinary assimilation “signified permanence,” pressuring the state to pass sweeping legislation in the late 1820s that severely restricted the Cherokees’ rights to governance and land (p. 396). [12] 

After his 1828 election, President Andrew Jackson sympathized with Georgia’s laws; Under pressure from representatives from Georgia and other southern states, he eventually signed the 1830 removal act in hopes of reigning in federal forces to help officiate the removal of the Cherokees, Chickasaw, Choctaw, Creek, and Seminole. [13] Collectively, they were referred to as “The Five Civilized Tribes.” The term “civilized” alluded to their extraordinary assimilation [14]; their removal demonstrates that Native American assimilation was not enough so long as tribes remained intact. It was not enough for Native Americans to adopt settler culture. It was necessary to rid any traces of Indigeneity, in governance and land ownership, otherwise the creation of a contiguous settler nation state remained under threat. 

Following the 1830 Removal Act, the Cherokee filed an injunction against the state of Georgia to the Supreme Court in hopes of altering the course of Native American removal. [15] Rather than side with the Cherokees that “the laws violated their sovereign rights as a nation and illegally intruded into their treaty relationship with the United States,” the Court dismissed the case under the grounds that the Cherokee were not considered a “foreign nation” as alluded to in Article 1, Section 8, Clause 3 of the Constitution. [16] [17] [18] Instead, according to Chief Justice John Marshall, the Native Americans were “domestic dependent nations” whose relationship with the United States “resembles that of a ward to his guardian.” [19] As such, since the Court could only listen to cases filed against a state by a foreign nation, the Cherokee v. Georgia case was officially dismissed in 1831. 

Shortly thereafter, in 1832, missionary Samuel Worcester filed a Supreme Court case against the state of Georgia after it passed extensions that required “white persons” to obtain a state license in order to reside in the Cherokee Nation. The extension was in response to Worcester’s support for Cherokee resistance. [20] The Court deemed Georgia’s laws unconstitutional, stating, “Indian nations are distinct, independent political communities retaining their original natural rights.” [21] This did not reverse Cherokee vs Georgia. Essentially, Indigenous Nations “had a right to live free from the state’s trespasses” but were still within the United States; they had a right to “self-governance” although they had “surrendered sovereign powers [sovereignty] in [previous treaties] with the United States.” [22] [23] Thus, Congress has the ultimate authority to engage with Natives. Together, the rulings did not halt the Congressionally approved 1830 Indian Removal Act that was enforced throughout the 1830s. 

Such “surrendering” of sovereignty was rooted in the concepts of preemption that long preceded the Cherokee vs Georgia and Worcester vs Georgia cases. “Preemption gave the ‘discovering’ (or, in the US case, its successors) power a monopoly over land transactions with the natives, who were prevented from disposing of their land to any other European power” (p. 391). [24] However, as Wolfe adds, “This semblance of native voluntarism has provided scope for some limited judicial magnanimity in regard to Indian sovereignty. In practice, however, the corollary did not apply. Preemption sanctioned European priority but not Indigenous freedom of choice…The American right to buy always superseded the Indian right not to sell.” [25] Essentially, a power imbalance was conceived and later judicially upheld.

Thus, it is unsurprising that Native Americans continued to be uprooted long after the Indian Removal Act of 1830, including by the Kansas Nebraska Act of 1854, Omnibus Treaty, and Medicine Lodge Treaty. [26] Regardless of federal rulings, settler society also encroached on Native American land, often violently. Wolfe explains, “More often than not (and nearly always up to the wars with the Plains Indians, which did not take place until after the civil war), the agency which reduced Indian peoples to this abjection was not some state instrumentality but irregular, greed-crazed invaders who had no intention of allowing the formalities of federal law to impede their access to the riches available in, under, and on Indian soil” (p. 391). [27] 

The closing of the frontier brought final efforts to dismantle Indigenous land ownership. Unlike Europeans, Native Americans traditionally did not follow individual proprietorship, rather family and clan proprietorship headed by the tribe. Accordingly, collective land ownership was an extension and expression of Indigenous identity. Attacking collective land ownership was therefore a two-pronged attack; it severed Indigeneity from land claims and significantly reduced the threat of Indigenous land ownership. The Dawes Severalty Act of 1887 was a manifestation of this attack, allowing Native Americans to apply for individual allotments that allowed them to individually sell to white proprietors. By the early 20th century, Indigenous acreage fell from 155 million acres to 52 million (p. 400). [28] 

Having significantly reduced Indigenous land claims and exhausted allotment policies, the United States passed the 1934 Indian Reform Act that required tribes to rewrite their constitutions to be better absorbed within the American judicial system. [29] Blood quantum regulations were required in approved constitutions, which is where “one’s ‘Indianness’ progressively declines in accordance with a ‘biological’ calculus” (p. 400). [30] Essentially, blood quantum regulations quantify how much “Indianness” an individual can have to qualify as a member of their tribe. It operates on the concept of genetic purity and contamination, where inter-racial breeding reduces one’s “Indianness.” Blood quantum regulations ultimately racialized Native Americans and created a system that, according to scholar Annette Jaimes, leads to their continued “statistical extermination,” as many tribes continue to implement blood quantum regulations (p. 400). [31] [32]

. . . 

Tracing the United States’ land laws and blood quantum regulation policies reveals the embedded oppression of Native Americans in the United States’ historic and legal landscapes. Executive and Supreme Court decisions overruled Indigenous sovereignty, and preemption policies and violent settler practices undermined Native Americans’ already limited rights to self-governance and land. Together, such laws and practices operated to uproot Native Americans and make space for settler settlement. Such a removal campaign translated onto individual Native Americans, who later experienced allotment policies that imposed European notions of individual proprietorship and attacked concepts of Indigeneity by compromising collective proprietorship. Having successfully reduced Indigenous land claims to 52 million acres (smaller than the state of Kansas), blood quantum regulations have put forth an apparatus that allows for the continued, gradual elimination of Native Americans by jeopardizing tribal claims. [33] 

All this stands to show that the United States’ historic and legal landscapes have comprehensively targeted and sought the elimination of Native Americans in pursuit of a contiguous settler state. While it is impossible to undo history, it is time that the United States assess how its oppressive past against Native Americans is not only repeating but ongoing both legally and in everyday practices, if it ever wants to serve as a model for human rights protections.

References

[1] Hopper, Tristin. “How Canada Forgot about More THAN 1,308 Graves at Former Residential Schools.” ottawacitizen. Ottawa Citizen, July 13, 2021. https://ottawacitizen.com/news/canada/how-canada-forgot-about-more-than-1308-graves-at-former-residential-schools/wcm/18d376d7-7abc-42b6-a459-d964dc7ca844. 

[2] Mosby, Ian. “Canada's Residential Schools Were a Horror.” Scientific American. Scientific American, August 1, 2021. https://www.scientificamerican.com/article/canadas-residential-schools-were-a-horror/. 

[3] Ibid. 

[4] Ibid. 

[5] Ibid. 

[6] Ibid. 

[7] Ibid. 

[8] Ibid. 

[9]  Patrick Wolfe (2006) Settler colonialism and the elimination of the native, Journal of Genocide Research, 8:4, 387-409, DOI: 10.1080/14623520601056240 

[10] Ibid. 

[11] “BRIA 21 1 c Indian Removal: THE Cherokees, Jackson, and The Trail of Tears.” Constitutional Rights Foundation. Constitutional Rights Foundation . Accessed August 14, 2021. https://www.crf-usa.org/bill-of-rights-in-action/bria-21-1-c-indian-removal-the-cherokees-jackson-and-the-trail-of-tears.html. 

[12] Patrick Wolfe (2006) Settler colonialism and the elimination of the native, Journal of Genocide Research, 8:4, 387-409, DOI: 10.1080/14623520601056240 

[13] Garrison, Tim Alan. “Worcester v. Georgia (1832).” New Georgia Encyclopedia, February 20, 2018. https://www.georgiaencyclopedia.org/articles/government-politics/worcester-v-georgia-1832. 

[14] “Five Civilized Tribes.” Encyclopædia Britannica. Encyclopædia Britannica, inc. Accessed August 14, 2021. https://www.britannica.com/topic/Five-Civilized-Tribes. 

[15] McBride, Alex. “The Supreme Court . the First Hundred Years . Landmark Cases . Cherokee Indian CASES (1830s): PBS.” The Supreme Court . The First Hundred Years . Landmark Cases . Cherokee Indian Cases (1830s) | PBS, December 2006. https://www.thirteen.org/wnet/supremecourt/antebellum/landmark_cherokee.html. 

[16] Garrison, Tim Alan. “Worcester v. Georgia (1832).” New Georgia Encyclopedia, February 20, 2018. https://www.georgiaencyclopedia.org/articles/government-politics/worcester-v-georgia-1832. 

[17] “Federal Judicial Center.” Cherokee Nation v. Georgia | Federal Judicial Center. Federal Judicial Center . Accessed August 14, 2021. https://www.fjc.gov/history/timeline/cherokee-nation-v-georgia. 

[18] “Article I Section 8: Constitution Annotated: CONGRESS.GOV: Library of Congress.” Constitution Annotated. Congress. Accessed August 14, 2021. https://constitution.congress.gov/browse/article-1/section-8/. 

[19] “Indian Treaties and the Removal Act of 1830.” U.S. department of state. U.S. Department of State; Office of the Historian . Accessed August 14, 2021. https://history.state.gov/milestones/1830-1860/indian-treaties. 

[20] Garrison, Tim Alan. “Worcester v. Georgia (1832).” New Georgia Encyclopedia, February 20, 2018. https://www.georgiaencyclopedia.org/articles/government-politics/worcester-v-georgia-1832. 

[21] Ibid. 

[22] Ibid. 

[23] “Frequently Asked Questions.” Indian Affairs. U.S Department of the Interior Indian Affairs. Accessed August 14, 2021. https://www.bia.gov/frequently-asked-questions. 

[24] Patrick Wolfe (2006) Settler colonialism and the elimination of the native, Journal of Genocide Research, 8:4, 387-409, DOI: 10.1080/14623520601056240 

[25] Ibid. 

[26] “Removal of Tribes to Oklahoma.” Removal of Tribes to Oklahoma | Oklahoma Historical Society. Oklahoma Historical Society . Accessed August 14, 2021. https://www.okhistory.org/research/airemoval.php#:~:text=1831%20The%20Choctaw%20Nation%20began%20removal%20from%20Mississippi,process%20for%20removal%20of%20the%20Seminoles%20of%20Florida. 

[27] Patrick Wolfe (2006) Settler colonialism and the elimination of the native, Journal of Genocide Research, 8:4, 387-409, DOI: 10.1080/14623520601056240 

[28] Ibid. 

[29] Ibid. 

[30] Ibid. 

[31] Ibid. 

[32] Chow, Kat. “So What Exactly Is 'Blood Quantum'?” NPR. NPR, February 9, 2018. https://www.npr.org/sections/codeswitch/2018/02/09/583987261/so-what-exactly-is-blood-quantum. 

[33] “Kansas Data and Statistics.” FIC. Farmland Information Center , November 13, 2020. https://farmlandinfo.org/statistics/kansas-statistics/#:~:text=Total%20and%20Agricultural%20Land%20Cover%2FUse%20%20%20Data,%20%2046%2C131%2C700%20%203%20more%20rows%20.