Before first contact, almost all tribes on the North American continent were communal societies. Some were nomadic, others sedentary. Some had a hierarchy form of self-governance, others were loosely organized by family clans or bands. But no matter how diverse, tribes shared a sense of community based on kinship. Individuals did not own the land, but its resources were shared by the group. They lived off the land.
When the Europeans arrived, they brought with them their materialistic worldview. They valued private ownership of property and a reliance on governments of written laws, popular consent and judicial dispute resolution. And they wanted more lands and resources Native peoples were using. In the European point of view, the Indians weren't exploiting the land to its fullest, therefore they were deemed to be savages and had no natural right to it. Because Europeans had "discovered" this New World, they had the right to possess it.
In the 1770s, one of the first big constitutional debates of the new United States was how much sovereignty or self-governing power, should tribes be allowed and who would control Indian policies, the federal government or the states. From colonial times, the founding fathers had dealt with Indian tribes as foreign sovereign nations through negotiated treaties. But the states aggressively pursued policies that would allow them, the states, to take the land and move the Indians away from the eastern seaboard.
The First Marshall Decision
In 1823, U.S. Supreme Court Chief Justice John Marshall wrote for the majority that Indians had some claim to title to the land they occupied, but that legal title was of a lesser kind than a title that European discoverers used by right of discovery. To leave the land to the Indians would mean leaving it a wilderness, and therefore the Indians did not have absolute title — the United States did. Tribal sovereignty was attacked.
The Cherokee Cases
In the 1830s, there were three cases involving the Cherokee tribe in North Carolina. The Cherokee had become "civilized," adopting white farming methods, laws and even religion. But the state of Georgia still wanted them moved to Indian Territory in Oklahoma. The Cherokee pointed out they were a sovereign nation confirmed by treaties with the U.S. government. Therefore, shouldn't they be considered like a 'State' within the meaning of the U.S. Constitution? Marshall said, No. He said they are "domestic dependent nations. They occupy a territory to which we assert a title independent of their will. They are in a state of pupilage."
Later he backed away, somewhat, from this position. In 1832, he said that the Cherokee Nation possessed "its right to self-government," even though it was "dependent" on the U.S. Further, he said that the federal government, not the state of Georgia, had to right to govern the tribe. Georgia couldn't force the Cherokee off their land. The Cherokee thought they had won the right to stay in the Carolinas and Georgia. They were wrong.
Trail of Tears
President Andrew Jackson — a western general with whom the Cherokees had fought — is supposed to have said, "John Marshall has made his decision, now let him enforce it." For political reasons, Jackson sided with Georgia, using federal troops to round up the Cherokee, and marching them to Oklahoma Indian Territory.
The Treaty Era
The Trail of Tears confirmed and became the legalized pattern in the federal government's dealings with the Native tribes during the drive to settle the West. Between 1778 and 1868, 367 tribal treaties were ratified by the U.S. Senate. On the one hand, treaties implicitly recognized that tribes were sovereign nations. On the other hand, many other treaties were never ratified by the Senate, especially those from California tribes. And the terms of the treaties were regularly and persistently broken. So, the rights of all these native sovereign nations were trampled at every turn and the people were relocated.
The Dawes Act
Between the Civil War and 1887, the white population of the U.S. doubled to 60 million. The states and new immigrants wanted more land opened up. Ironically, friends of the Indians also thought the reservation system was wrong, keeping Native Americans from being self-sufficient. U.S. Senator Henry Dawes pushed through a new law that authorized the President to divide communally held reservation land into individual parcels to be "allotted" to individual tribal members.
The practical effect of the Dawes Act fundamentally changed the way Indians dealt with their land base and it eventually removed much of the land from their reservations through private sales or outright confiscation. "Surplus" land was then sold off. The result was Native Americans often found it impossible to make a living, and so began selling their allotments to land-hungry farmers and ranchers. In 1881, Indians held more than 155 million acres. By 1890, they held 104 million acres. By 1900, 77 million acres.
The IRA, Indian Reorganization Act
In 1934, Roosevelt's New Deal tried to reform Indian affairs, slow down the land grab and swing the pendulum back toward tribal sovereignty. FDR's Indian Commissioner, John Collier, wanted to encourage economic development, self-determination, cultural pluralism and even the revival of tribalism. The IRA stopped the allotment process and halted the loss of Indian lands. The tribes were given the chance to organize their governments under a constitution. Tribal councils could hire lawyers and protect their remaining lands. For many tribes, this contradicted their traditional forms of government.
After World War II, the pendulum again swung back. A number of tribes were taking their new governmental power and filing suit to enforce land claims from old treaties. Congress was getting tired of the bickering, so they set up a commission to pay off the claims — without awarding any land back to the tribes — and then enacted a law to terminate the federal recognition and protection of selected tribes. Jurisdiction was turned over to the states. In 1953, all of the tribes in California, Florida, New York and Texas were slated for termination. The goal was to get the federal government out of the Indian business, but states have always been much less protective of Native American sovereignty. The program lasted until 1962 when the Poncas of Nebraska were the last tribe to be terminated.
At about the same time, the government's urban relocation program gave tribal members who no longer had a reservation — as well as members who did — a place to go to try and assimilate into mainstream society. The cities were seen as offering better job opportunities than the poor reservations. The relocation program did succeed in moving large numbers of Indians to urban areas, isolating them from their reservations. But, the program did not succeed in finding new and better jobs for many of its clients. Ironically, it was the children of the urban Indian pioneers who became some of the most vocal activists in the 1960s.
Indian Civil Rights Act
In 1968, Congress moved to give a few more rights back to the tribes. But it wasn't until 1988 that they "terminated the Termination Act."
Since the 1960s, the general thrust of federal policy has been to gradually allow tribal governments more and more control over programs on their reservations. These programs started with education as tribes were awarded contracts to manage their own schools. Next came health services. Next came judicial proceedings and economic development.
"History." Indian Country Diaries. PBS, Sept. 2006. Web. 6 Feb. 2016. .