Non-Status Indian in the United States: Part 4 of Daniels v. Canada/Crown

Harold Monteau

Click here if you missed Part 1; here if you missed Part 2; and here if you missed Part 3.

QUESTION: Does the U.S. have a Trust Responsibility to individual Indians even where they are descendants of Historically Recognized Tribes, although not “Federally Recognized”, where they were/are Indian descendants of “Terminated” Tribes, where they are “disenrolled” Indians from a Federally Recognized Tribe, where they are members of State Recognized Tribes, where they are Indian “persons” recognized as such in their communities and/or by other Tribes, where they are not enrolled in a Federally Recognized Tribe but who are descendants or heirs of “Allotment Holders”?

ANSWER: The answer is yes. Neither Congress nor the Tribes themselves, or their “aggregate” members, have ever divested the Federal Government of the Trust Responsibility that it has maintained since Colonial Times with regard to individual Indians/Native Americans. The United States has abandoned, and continues to neglect, its trust responsibility to individual Indians, that it has under Federal Law. To not do so violates both Federal and International Law. Any Attempt to “benignly” neglect its beneficiaries (Tribes and individual Indians) out of existence is neither humane nor moral, and is “illegal” under both Federal and International Law. Abandonment of U.S. Trust Responsibility to its Indian Beneficiaries, especially where it is based on past practices (even law and policy), in the aggregate, demonstrate intent to put the Indians under “such circumstances as to bring about their disappearance as a people”. would violate both U.S. and International Law. The U.S. cannot “disappear” its Indian Beneficiaries.

The answer to this question (actually “questions”) lies in whether the current U.S. Policy towards Indians (Self-Determination/Self-Governance) is just a continuation of historical policies of “Termination and Assimilation” with the ultimate goals still being the “disappearance” of Indian Tribes and the absorbing of individual Indians into the “American Mainstream”. The difference being that the Tribes are now in charge of effectuating the Policy as a surrogate of the Trustee.

As was discussed in Part 3 of this series, the United States has throughout its history, “assumed dominion” over Indians, Indian Tribes and Indian Lands. It has done this since the establishment of Colonial Governments that were surrogate governments of the British Government (The “Crown” as our Canadian Indian relatives refer to it.). The Spanish, French, Dutch and Russian colonizers also had “surrogate” representatives endowed with authority to “govern” over lands that they colonized in the New World. But, the colonizer we are most familiar with is “The Crown”. Our textbooks tend to treat the presence of other “Crowns” rather cursorily.

The origins of present Federal Indian Law and Policy are found in International Law, particularly the law between European Nations referred to as the “Doctrines of Discovery and Conquest”. The first reflecting the European concept that a Nation being the first to “Discover” new lands could claim it for whatever “Crown” sponsored their adventures or Voyages of Discovery. The “Discovery” by one nation entitled it to exclusive “Dominion” over the lands discovered and the “Crown” had the exclusive right to deal with the population therein and exclusive right to deal with the land. The second Doctrine reflects the European concept of assuming “dominion” over other nations by Conquest in a “just war”. They practiced this concept with each other and then extended it to the “Kingdoms” they encountered in the New World. Thus extending these doctrines to indigenous populations they ran into upon discovery and presenting them the option of “Treaty or Annihilation”, usually with a pretty good attempt at the latter before offering the former. The Spanish in particular used annihilation (by some accounts or their English Contemporaries, 20 Million between the 1500s-1700’s). Once submission was accomplished the treatment of the indigenous populations were driven by “Christian Values” to “Christianize and Assimilate” what was left of the population. These practices were an extension of Vatican Religious Doctrine, since the Holy Catholic Church had great influence, and sometimes control, over European Nations that had embraced Christianity to the exclusion of Paganism.

These same Doctrines made their way into British Colonial Law, and in turn, into the Laws of the Continental Congress, the Declaration of Independence and then the Constitution of the United States. The doctrines influenced the development of Indian “policy” within the newly empowered “Congress, Judiciary and Executive” Branches of Government, now taking the place of the “Crown”. Of course, these doctrines also became the legal basis for the Supreme Court affirming the exclusive right of the Federal Government of the United States to deal with the Indians, as opposed to the individual States. The exclusive was solidified in the now entrenched “Marshall Trilogy” decisions. These decisions and their prodigy solidified the Federal Government’s exclusive right to make Treaties with the Indian Nations, conquer them, annihilate them, or Christianize and assimilate them. To this day, the Supreme Court starts out most cases involving what we now call “Federal Indian Law” by a recitation of case law beginning with the Marshall Cases, named after Chief Justice John Marshall, the presiding Chief Justice at the time.

 In Parts 1,2 and 3 of this series we looked at some of the history of the U.S. legislating over Indian Affairs, not only as pertains to Tribes as “Domestic Dependent Nations”, but also over the conduct of individual Indians, their interaction with Traders and their conduct under the supervision of “Superintendents” and “Agents” of almost every aspect of their life. In at least a facial attempt to live up to the Treaties that the U.S. signed with the Indian Nations, certain distributions required by those Treaties necessitated the identification of who was to receive the distributions (mostly goods and rations, but sometimes farm implements and tools). There were also distributions of cash that was in the hands of the U.S. Representatives and Indian Agents that were doled out to Chiefs for distribution to individual Indians, or to the individual Indians directly. The decision as to who was considered “Indian” was mostly deferred to the Tribes at hand and who they considered as being “of the Tribe”. This could include White Men married into the Tribe. It could include White Women who came into the Tribe by way of captivity. It could include other Indians who were married into the Tribe or came into the community as a matter of survival or captivity. It could even include Men who came into the Tribe as slaves. (Yes, some tribes did practice slavery.) Some Tribes that practiced African Slavery were ultimately, as a matter of Treaty language, obliged to recognize African Slaves as being “of the Tribe”, or in the current vernacular, “members”. With the passage of the “Dawes Act” or “General Allotment Act, which allowed for distribution of Indian Treaty Reserved Lands to individual Indians, it became even more important for the U.S. Trustee to determine who was entitled to an Allotment and the establishment of rules and regulations as to the heirs of the Allotment Holder and other successors in interest. Gone was the practice of deferring the question of who was an Indian to the Indians themselves. Now the U.S. Trustee was obligated by law to determine who was an Indian and who were the prodigy of individual Indians on the “Dawes Rolls”, and those who were otherwise heirs.

The history of the Oklahoma Tribes is the classic iteration of the amount of control the U.S. Government took over the lives of individual Indians in the late 1800s and early a1900s. The “Curtis Act of 1888” was sponsored by Charles Curtis, a mixed-blood Kansa Indian and Senator from Kansas. Up to this point the “Five Civilized Tribes” and other Tribes in the Indian Territories of Oklahoma had pretty much been left to govern themselves. With the passage of the Curtis Act, Congress took pervasive control over affairs in Indian Territory. The Curtis Act helped weaken and dissolve Indian Territory tribal governments by abolishing tribal courts and subjecting all persons in the territory to federal law. This meant that there could be no enforcement of tribal laws and that any tribal legislation passed by the tribe after 1898 had to be approved by the President of the United States. Before 1896 each of the Five Civilized Tribes had exercised sole jurisdiction over its citizenship requirements, determining who was a tribe member and who was not. The passage of the Curtis Act Congress authorized the Dawes Commission to prepare new citizenship rolls for each tribe. Sen. Henry L. Dawes of Massachusetts undertook the compilation of a census to be used as the basis for allotment of tribal lands to individual Indians. Enrollment of tribe members and the ensuing allotment was performed without tribal consent. (See Kaye Tatro: "Curtis Act (1898), Encyclopedia of Oklahoma History and Culture, www.okhistory.org)

The Oklahoma Indian Welfare Act of 1936 (also known as the Thomas-Rogers Act) is the United States Federal Law that extended the 1934 Wheeler-Howard or Indian Reorganization Act (IRA) to include those tribes within the boundaries of the state of Oklahoma. As the Five Civilized Tribes began to reorganize and set up new governments, the question arose as to whether they could change their membership rules, specifically, to exclude the Freedmen (Their former slaves that they were required by treaty to be absorbed into the Tribe). In 1941, the Solicitor General opined that Congress had approved the law (IRA) that enabled tribes to reconstitute their governments and, by extension, enabled them to create new constitutions and rules. The Solicitor said that the tribes could pass new constitutions with new membership rules that limited membership to persons of Indian descent. Thus begin the Federal practice of again relying on Tribes to determine who was “of the Tribe” but with the overlay of “blood quantum” and “descendency” that the Federal Government had used to determine who is an Indian during the “Allotment Period”. As far as can be discerned, the Solicitor’s Opinion has not been challenged as the basis for “disenrollment”. Most Tribe’s practiced the philosophy that “once a member, always a member” or once recognized as being “of the Tribe” one was “always of the Tribe”, with the exception of “banishment” for very serious violations of Tribal Law and customs.

A review of the time period leading up to and though the allotment period and into the early part of the 20th Century, reveals a very broad and pervasive practice of Congress and the Administration maintaining what became almost daily supervision and control by the U.S. “Trustee” of the individual Indian “beneficiaries” and individual Indian property interests. Remnants of these practices and the policies they were based upon exist to this day.

In the next installment in this series, we examine the Post-IRA Law and Indian Policy that continued the pervasive control over individual Indians, and into the attempts by the U.S. to “terminate” the U.S. Trust Responsibility to Tribes and individual Indians. We will also examine how these attempts to “terminate” Tribes and Trust Responsibility over Tribes and individual Indians, and the subsequent rejection of Termination Policies, demonstrate that the U.S. (BIA) “must” maintain and carry out its Trust Responsibility not only with regard to Federally Recognized Tribes but has never been “legally” authorized to terminate its responsibility to individual Indians and in light of new Federal Law and International Law may not legally do so. 

Harold Monteau is a Chippewa Cree Attorney of Metis descent and writes from New Mexico. He is the former Chairman of the National Indian Gaming Commission (NIGC) and an Economic Development and Finance of Economic Development Consultant. His Email is [email protected].

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