SCIA Chairman Sen. Daniel Akaka, D-Hawaii, presides over the committee's hearing on Internet gaming legislation Thursday. (AP Photo/Jacquelyn Martin)

Part 3: The Dawes Act Started the U.S. Land-Grab of Indian Territory

Gale Courey Toensing
2/15/12

February 8 marked the 125th anniversary of the notorious Dawes Act. This is part three of a three-part series on this devastating bit of legislation. Click here if you missed part one, and click here if you missed part two.

The Indian Reorganization Act of 1934 (IRA), which authorized the Secretary of the Interior to restore and acquire lands for Indian nations, was a shot at redemption by descendants of the white European settler colonists who had arrived more than 300 years earlier and stole land in what became the United States of America.

The IRA was signed into law by President Franklin Delano Roosevelt on June 18, 1934, and was considered the Indian New Deal. The act was initiated by John Collier, the Bureau of Indian Affairs’s (BIA) reformist commissioner from 1933 to 1945, who proposed sweeping reforms to the federal Indian policies. “For nearly 300 years white Americans, in our zeal to carve out a nation made to order, have dealt with the Indians on the erroneous, yet tragic, assumption that the Indians were a dying race—to be liquidated,” he wrote in his annual report for 1938. “We took away their best lands; broke treaties, promises; tossed them the most nearly worthless scraps of a continent that had once been wholly theirs. But we did not liquidate their spirit. The vital spark which kept them alive was hardy.”

The IRA was designed to reverse the devastating effects of the Dawes Act. In the 47 years between the enacting of the Dawes Act and the IRA, the allotment policy drastically decreased tribally owned land. The IRA put an end to the practice of allotment and authorized the Secretary of the Interior “to restore to tribal ownership the remaining surplus lands of any Indian reservation heretofore opened, or authorized to be opened, to sale, or any other form of disposal by presidential proclamation, or by any of the public land laws of the United States.” Not only was the secretary mandated to restore Indian lands, he was also authorized to acquire new tribal lands. “The Secretary of the Interior is hereby authorized, in his discretion, to acquire through purchase, relinquishment, gift, exchange, or assignment, any interest in lands, water rights or surface rights to lands, within or without existing reservations, including trust or otherwise restricted allotments whether the allottee be living or deceased, for the purpose of providing lands for Indians.”

Cedric Cromwell

Since 1934, the BIA has restored millions of acres of land to tribes and acquired new tribal lands. According to the BIA website, the federal government now holds approximately 56.2 million acres in trust for various Indian tribes and individuals, including a 1.32-acre parcel in California where the Pit River Tribe’s cemetery is located. Some reservations are the remnants of a tribe’s original land base; others were created to resettle Indian people who were ethnically cleansed from their aboriginal homelands. Some federally recognized tribes have no reservation. And the injustice of the federal government’s actions regarding Indian land rights didn’t stop with its blatant expropriation of Indian land. More recently, the federal government has also benefited from the use and abuse of resources on Indian lands. The late Elouise Cobell, a member of the Blackfeet Nation of Montana, won her 15-year-long legal battle against the federal government for its failure to account for billions of dollars in royalties owed to more than 300,000 American Indians and Alaska Natives. The $3.4 billion settlement is the largest class-action settlement against the government in the history of the country.

Seventy-five years after the IRA was enacted, the momentum of American politics switched again, and the good done by the IRA is gradually being undone. On February 24, 2009, the U.S. Supreme Court issued its ruling in Carcieri v. Salazar which says the Secretary of the Interior does not have the authority to take land into trust for tribes that were not “now under federal jurisdiction” when the IRA was enacted. The ruling didn’t define “under federal jurisdiction” but interpreted the word “now” to mean then—1934—as opposed to “as of now.” The Carcieri ruling has frozen hundreds of land-into-trust applications and has spawned federal lawsuits that could potentially threaten Indian land rights throughout the country.

Mashpee Wampanoag Chairman Cedric Cromwell calls the Carcieri ruling “the modern-day Dawes Act.” The Carcieri ruling was a “terrible, terrible misguided mistake,” he says. “The Carcieri decision is the greatest threat to tribal sovereignty since the General Allotment Act and opens the possibility of condemning tribes to live with the benighted Indian policies of the 19th century and it raises the specter of two classes of tribes, with one class permanently deprived of land,” Cromwell says.

Despite being one of the first people to greet the European settlers in the early 17th century, the Mashpee Tribe was not federally acknowledged until 2007, so it is affected by the Carcieri ruling. “Along with other recently reaffirmed tribes, we are the ones who need land the most so we can begin to provide economically for our people,” Cromwell says. Land, he insists, is fundamentally important to Indian tribes. “We have always been, and today continue to be, land based cultures—communities inextricably connected to the soil, water, and air around us, to the plants and animals that ensure our survival, and to the places we call home. In our view, our lands hold much more than mere economic value but rather have great cultural, religious, and—in the modern era, especially—political significance. Our lands are where we live, where we gather together, and where we exercise our inherent sovereign rights as pre-Constitutional peoples.”

Mashpee was one of the first tribes to experience the effects of Dawes’s theory that private property ownership “civilizes” people. When Dawes sponsored the General Allotment Act, he was putting forward a strategy to break up Indian nations by dispossessing them of their land that had already proven successful with the Mashpee Wampanoag Tribe under a Massachusetts state law.

As part of the Wampanoag Confederacy, the Mashpee Wampanoags had a vast aboriginal territory—approximately 55 square miles from Cape Cod to the Narragansett Bay in present-day Rhode Island to the Merrimack River near Gloucester, Massachusetts. But state legislation enacted in 1842—a precursor to the federal Dawes Act—provided for 60-acre allotments to be given to individual members as privately owned taxable land that they could sell. Tribal members voted against the act twice in ballots seeking the tribe’s consent to the allotments, but in 1870 the act was implemented and each tribal member over the age of 18 received 60 acres of land—freely alienable and fully taxable. “Once communally held lands were made alienable, desperately poor tribal members would in short time lose their parcels,” Cromwell says. Today, the tribe owns only 140 acres of fee land (or privately owned land) and not a single acre is held in trust by the federal government, Cromwell says.

Legislators in Congress and the Senate have promised to move a Carcieri “fix” forward during the current congressional session. Sen. Daniel Kahikina Akaka (D-Hawaii) and Rep. Tom Cole (R-Oklahoma) both have bills pending that would reaffirm the Interior Secretary’s authority to take land into trust for all federally acknowledged tribes. “As chairman of the Senate Committee on Indian Affairs, I will exercise every legislative opportunity at my disposal to bring forward Indian country’s number-one priority: a Carcieri fix,” Akaka told Indian Country Today Media Network in November. Both men reiterated that a Carcieri fix is their top priority.

A Carcieri fix couldn’t come soon enough for the Mashpee Tribe, Cromwell says: “The lingering effect of the allotment of Mashpee tribal land is that by the 20th century those tribal members who had any homes at all were living in shacks among the mansions of the rich people. That’s if they had a home. Most of our people lost their homes and lands to taxation. The people couldn’t afford to live in their homeland anymore and they still can’t, which is why the dream of a tribal housing project is so important.”

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