Thursday, February 09, 2023

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B. Treating Indians as Wards of the Federal Government


With the demise of the Indian nations as potent military threats to the United States in the early nineteenth century, there emerged in American law the notion that the Indians were wards of the federal government. This notion emanated from the treaty provisions that acknowledged the protection of the United States. But the real impetus for the incorporation of this view in American law came from the Supreme Court, and in particular, Chief Justice Marshall. In the now famous “Marshall Trilogy” of cases--Johnson v. M'Intosh, Cherokee Nation v. Georgia, and Worcester v. Georgia, Court laid out the fundamental principles that would define the future legal relationship between the United States and the Indian nations under federal law.

In Johnson, the Court dealt with the question of what power Indian nations had to pass title to non-Indians, holding that Indians had been divested of fee title to their own land solely by virtue of being “discovered” by the European explorers. In Cherokee Nation, however, the Court was called upon to address the question of whether the Cherokee Nation could invoke the Court's original jurisdiction on the grounds that it was a “foreign nation.” This directly confronted the question of how the United States would conceptualize Indian legal status under its law. The Court held that the treaty relationship between the Cherokee Nation and the United States required that the Cherokee Nation could only be considered a “domestic dependent nation” under federal law. In part this conclusion was driven by Marshall's assessment that the Indians were “in a state of pupilage” and that:

[t]heir relation to the United States resembles that of a ward to his guardian. They look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and address the president as their great father.

This principle was reaffirmed in Worcester, where the Court held that the relationship between the federal government and the Indian nations was exclusively federal in origin and thus preemptive of state assertions of power in the Indian territory.

As the Indian nations became less and less of a threat to the America and more and more surrounded by it, the predominant view came to be that the Indians were the wards, or beneficiaries, of the federal government, which assumed the role of guardian or trustee. In accordance with this view, Congress passed laws granting the Secretary of the Interior sweeping authority over the management and control of Indian affairs. Thus, the federal government began to assume a wide variety of responsibilities for its Indian “wards” on the grounds of what was later judicially defined as its “trust responsibility.” This conception of the federal-tribal relationship was rooted in Marshall's assertion in Cherokee Nation that Indians were in a “state of pupilage.”

While as a general matter the United States viewed Indians as citizens of their own nations as well as its wards, some Indians were considered as neither. By the time the Republic was founded, a few Indians had sufficiently assimilated into American society. These Indians had assumed the “responsibilities of civilized life,” were taxpayers, and were thus acknowledged to be part of American society by virtue of their acceptance of the American way of life. Thus, the Constitution contained the provision regarding the exclusion of “Indians not taxed” for purposes of apportionment because some Indians were, in fact, taxed and thus eligible to be counted.

Assimilated Indians, however, were not necessarily deemed citizens. In an 1856 opinion, United States Attorney General Caleb Cushing was called upon to determine whether a mixed-blood Chippewa could be considered an American citizen for purposes of exercising preemptive rights available to all citizens. The Attorney General first concluded that Indians could not be born citizens because they were only “subjects” of the United States. As a result, Indians could not be naturalized under existing federal law because “[t]hose acts apply only to foreigners, subjects of another allegiance. The Indians are not foreigners, and they are in our allegiance, without being citizens of the United States.” Moreover, he concluded, those acts only apply to “white” men, although Congress could pass laws or enter into treaties that could make Indians citizens.

A further question addressed in this opinion was whether Indians “by continual crossing of blood, cease to be Indians” and thus no longer be considered incapacitated and ineligible for citizenship. His answer was “undoubtedly” and that such a matter was to be determined by the states. While he acknowledged that “[m]any persons of this class à are of most respectable character, and mentally and morally capable to be citizens of the United States,” this could only occur “by ceasing to be a member of the tribe.” The Attorney General concluded that it was “reasonable and just” that one “who claims and takes the benefits of such tribal membership, shall not be allowed at the same time to claim benefits which are only attached by law to persons not Indians.”

By the late nineteenth century, the notion that Indians were the wards (or subjects) of the federal government was firmly embedded in American law. In U.S. v. Kagama, the Supreme Court was called upon to decide the question of whether Congress had the authority to exercise its criminal jurisdiction within Indian territory. In upholding this assertion of power, the Court held:

These Indian tribes are the wards of the nation. They are communities dependent on the United States à. From their very weakness and helplessness, so largely due to the course of dealing of the Federal government with them and the treaties in which it has been promised, there arises the duty of protection, and, with it, the power.

Both the federal government's trust responsibility and the idea that Indians are wards (or beneficiaries) of the federal government have continued to the present day. Because the United States has continued to recognize Indians as citizens of their own nations, this has established the somewhat incongruous status that Indians are both citizens of one nation but wards of another. This status, perhaps, can only be reconciled if one accepts the Supreme Court's conclusion in Cherokee Nation that Indians are merely citizens of “domestic dependent nations.”