The Dawes Act Hammered Native Americans

In contrast to earlier United States policies of open war, forcible removal, and relocation to address the “Indian Problem,” the Dawes Act of 1887 focused on assimilation and land severalty — making American Indians citizens of the United States with individually-titled plots of land rather than members of collective tribes with communal land. Considerable scholarship shows that the consequences of the policy differed substantially from its stated goals, and by the time of its repeal in 1934, American Indians had lost two-thirds of all native land held in 1887 (86 million acres)—and nearly two-thirds of American Indians had become landless or unable to meet subsistence needs. Complementing rich qualitative history, this paper provides new quantitative evidence on the impact of the Dawes Act on mortality among American Indian children and adults. Using 1900 and 1910 U.S. population census data to study both household and tribe-level variation in allotment timing, we find that assimilation and allotment policy increased various measures of American Indian child and adult mortality from nearly 20% to as much as one third (implying a decline in life expectancy at birth of about 20%) — confirming contemporary critics’ adamant concerns about the Dawes Act.

Grant Miller, Jack Shane & C. Matthew Snipp, "The Impact of United States Assimilation and Allotment Policy on American Indian Mortality" NBER Working Paper #33057 (October 2024).

It turns out that suddenly switching from a communal land ownership regime to an individual land ownership regime is just as deadly as socializing individual land ownership.

Indigenous Peoples' Day

It is officially Indigenous Peoples' Day in Denver. (Accompanied by a snow storm and freezing temperatures following a 75 degree and sunny day yesterday.)

Some thoughts:

* Indigenous Peoples' Day was invented as a substitute for Columbus Day.

* Columbus Day, in turn, was an effort of the Knights of Columbus and Italian-Americans, generally, then a comparatively young and disadvantaged immigrant population and minority Roman Catholic religious population, to gain a focus for their "tribes." Since then, white Roman Catholics, generally, and Italian-Americans, in particular, have increasingly come to identify as white Americans rather than identifying strongly with their particular national origin, as they have assimilated over roughly a hundred years since the main wave of Italian immigration to the United States. 

* The indigenous population of the Americas collapsed more than 90% following the arrival of Columbus in 1492 CE, as a proximate result of the arrival of Columbus and his crew. 

* Most of that decline was due to the arrival of Old World diseases that people in the New World did not have resistance to, a result that no one could have anticipated at the time and that Columbus, his crew, and subsequent waves of Old World colonists did not fully understand. In what would become Mexico, the primary cause determined from examining bodies in mass graves dug when the population was collapsing, was a virulent strain of salmonella. In North America, a couple of centuries later, small pox was the main culprit. The germ theory of disease would not be widely accepted for centuries and wouldn't even be proposed for another half a century.

* There was a spread of new diseases from the New World to the Old World, most notably, syphilis, which Columbus's crew brought back to Europe with them. But, it wasn't proportionate.

* This isn't to say that early European visitors to the New World treated the indigenous population well or in good faith. They leveraged the advantage they obtained from massive disease deaths to conquer indigenous populations. The harm caused by forced relocation and loss of land was far worse than the actual battle deaths in the "Indian Wars" as the U.S. military defines them.

* It is hard to argue that what indigenous people in the United States have ended up with ca. 2017, is a raw deal.

* This has left a lot of distrust, with the consequence that Native American populations in the U.S. have largely refused to cooperate with efforts to document their populations and heritage with DNA tests of contemporary populations and with ancient DNA, in a loss to science that can't fully be restored if Native American populations embrace these efforts to discern their heritage later on.

* Some of the most despised efforts, like forcible boarding schools for Native American populations designed to assimilate them into modern U.S. culture, erased cultural ties and destroyed families, while simultaneously producing the greatest levels of conventional socio-economic success for their alumni compared to people who grew up in reservations.

* Historically, the Native American criminal justice system has erred on the side of under enforcement of Indian on Indian crime, rather than by being too harsh.

* Sovereignty hasn't been used in a very economically advantageous manner by Indian Nations with reservations. Casino gambling, tax dodges and acceptance of toxic and nuclear waste dumping sites have been some of the main economic uses to which it has been put. Reservations are often too small, to poor in land quality, and too removed from the traditional territories of their inhabitants, to make continued use of traditional subsistence living viable economically.

Bad Man Liability

In January 2003, a young woman named Lavetta Elk got into a car with an Army recruiter whom she had known since she was sixteen. She believed that she had been accepted as an enlistee — her dream was to work eventually as an Army nurse — and that he was taking her for a medical evaluation. Instead, Staff Sergeant Joseph Kopf drove down a deserted road and, once they were miles away from the nearest building, sexually assaulted Elk. Kopf was never prosecuted for his crime in civilian court; his Army court-martial resulted in no prison time. However, because Elk was a member of the Oglala Sioux Tribe and the assault occurred on a Sioux reservation, she had access to an unusual cause of action. 

Nine treaties concluded between the United States and various Indian tribes in 1867 and 1868 each contain what is known as a “bad men” provision. Within each of these provisions is a clause in which the United States promises to reimburse Indians for injuries sustained as a result of wrongs committed by “bad men among the whites, or among other people subject to the authority of the United States.” 

Although these “bad men among the whites” clauses have rarely been used in the last century and a half, they remain the source of a viable cause of action for Indians belonging to those tribes that signed the nine treaties of 1867 and 1868. In 2009, Lavetta Elk won her action for damages under the Fort Laramie Treaty of 1868, recovering a judgment in the Court of Federal Claims of almost $600,000 from the United States government.

Elk is the first and only plaintiff to take a “bad men among the whites” action through trial and win on the merits. She is unlikely to remain alone in her success.

From Note, "A Bad Man Is Hard To Find", 127 Harvard Law Review 2521 (2014).

A similar provision exists in a treaty with the Ute Indian tribe of Colorado and Utah, which recently resulted in a reported decision from the Federal Circuit in a plaintiff's favor. Article 6 of that treaty which was at issue reads as follows:

If bad men among the whites or among other people, subject to the authority of the United States, shall commit any wrong upon the person or property of the Indians, the United States will, upon proof made to the agent and forwarded to the Commissioner of Indian Affairs at Washington City, proceed at once to cause the offender to be arrested and punished according to the laws of the United States, and also reimburse the injured person for the loss sustained.

Winning The Battle But Losing The War?

The backers of a pipeline across the Dakotas have truly screwed the pooch with the intense law enforcement response to protests in the face of some doubtful efforts by supporters to push the project through over opposition.

At this point, even if they are successful, they are going to have a pipeline that can't move and can't possibly be guarded over all of its thousands of miles expanse, that large numbers of people will feel justified in sabotaging for decades to come. As a practical matter, the project will become an uninsurable albatross that will be out of service due to intentional efforts to destroy it more often than it is up and running.

I'm not endorsing that course of action, but it increasingly seems inevitable and makes the efforts of backers of the pipeline appear to be nothing but folly.

The Indian Removal Act Was Championed By Slave States

In the House, four fifths of slave-state representatives voted for the Indian Removal Act, while only a third of representatives from free states did.

From here.

To be clear, we are talking about legislation based during Andrew Jackson's Presidency, not recent legislation.

The Arrival of the Miami Indians In Ohio

Growing up in Oxford, Ohio, home of Miami University of Ohio, I'd always assume that the Miami Indians after whom the university is named were longstanding ancestral populations of the area. But, it turns out that this isn't the case. The Miami Indians started to arrive in Ohio around 1720, (in a migration noted historically by French hunters and trapper and missionaries) less than ninety years before Miami University was founded in 1809. Their migration, driven by pressures from other Indian tribes drove them there from an earliest known point of origin in Wisconsin.

The Indian tribes who preceded them in Ohio and their languages, like the indigeneous residents of large swaths of the Eastern United States in both the Midwest and the Southeast, have been lost to history.

Native Americans and the Civil War

[Before] 1907, Oklahoma was known as "Indian Territory." It was the site where Indian tribes were relocated after having been removed from areas east of the Mississippi River. Among those removed to Oklahoma were the Choctaw and Cherokee. The majority of the Native American tribes in Indian Territory sided with the Confederacy during the Civil War, in part because many of them had slaveholding members.

From here.

Angels On Pinheads

As a result, the standard of review in this case rises to the at least theoretically more stringent “plain error” standard. We say “theoretically” because, while plain-error review appears more stringent in theory, it is hard to comprehend how a standard can be any more stringent in actuality than that ordinarily applied to sufficiency-of-the evidence challenges. As we observed in Vizcarra-Martinez:

"[U]nder our ordinary test — the standard applicable when the defendant makes all the proper motions — we cannot reverse unless there is a clear showing as to insufficiency: we must affirm if any rational trier of fact could have found the evidence sufficient. Thus, it is difficult to imagine just what consequences flow from our application of the [plain error] standard[ ] or to envision a case in which the result would be different because of the application of one rather than the other of the standards."

Our case law, however, has repeatedly parsed the increasingly thin differences between standards of review, slicing ever finer and finer distinctions whose practical consequences are seemingly minuscule, if not microscopic. As a result of these exercises in abstraction, our standards of review continue to multiply, the relationships between them growing more obscure with each iteration. Still, because an existing decision of this court has clearly held that plain-error review applies when a jurisdictional element is the subject of an unrenewed motion for acquittal, we dutifully apply that standard in this case.

From here.

The underlying opinion concerns almost the same subject as Plessy v. Ferguson. The issue in that case was initially, "when is a man black?" This case asks the question, "when is a man an Indian?"

On appeal the Court finds that he is not an Indian within the meaning of the federal law governing crimes committed by Indians in Indian Country with which he is charged, so the defendant is acquitted of the crime that a jury found that he had committed.

The man was Indian by descent (his mother was 63/64th Indian with descent from one Canadian and one American tribe), but did not have “tribal or federal government recognition as an Indian.” This is determined under a four factor test, with the factor consisting of, “in declining order of importance, evidence of the following: ‘1) tribal enrollment; 2) government recognition formally and informally through receipt of assistance reserved only to Indians; 3) enjoyment of the benefits of tribal affiliation; and 4) social recognition as an Indian through residence on a reservation and participation in Indian social life.”

In considering the facts as applied to this test:

Taken in the light most favorable to the government, the record reveals the following facts related to Cruz’s Indian status:

1. Cruz is not an enrolled member of the Blackfeet Tribe of Indians or any other tribe.

2. Cruz has “descendant” status in the Blackfeet Tribe as the son of an enrolled member (his mother), which entitles him to use Indian Health Services, to receive some educational grants, and to fish and hunt on the reservation.

3. Cruz has never taken advantage of any of the benefits or services to which he is entitled as a descendant.

4. Cruz lived on the Blackfeet Reservation from the time he was four years old until he was seven or eight. He rented a room in a motel on the reservation shortly before the time of the offense.

5. As a descendant, Cruz was subject to the criminal jurisdiction of the tribal court and was at one time prosecuted in tribal court.

6. Cruz attended a public school on the reservation that is open to non-Indians and worked as a firefighter for the federal Bureau of Indian Affairs, a job that is also open to non-Indians.

7. Cruz has never participated in Indian religious ceremonies or dance festivals, has never voted in a Blackfeet tribal election, and does not have a tribal identification card.

Analyzing this evidence, it is clear that Cruz does not satisfy any of the four . . . factors.

The dissenting opinion argues that eligibility for benefits as an Indian is sufficient even if one does not avail oneself of them.

Should Native American Be Different?

For most purposes, race is not properly a factor to be considered in legal proceedings. In parental rights cases, however, under the Indian Child Welfare Act, a federal law, a child's ethnicity not only may, but must be considered and impacts who has standing in the case and what burden of proof applies in termination of parental rights proceedings.

The Indian Child Welfare Act is not new, and presumably, challenges to it under the 14th Amendment have been attempted and failed.

This isn't the only situation where distinctions are made on ethnic status that would otherwise be improper is permitted when Native Americans are distinguished.

Dead bodies are treated differently if believed to be of Native American descent, Hawaii has a trust that benefits descendants of Native Hawaiians that might not otherwise be valid, and there are certain kinds of hunting and animal parts (whales and bald eagles, for example) that are permitted in a Native American context, likewise peyote can be used for Native American religious purposes where it wouldn't otherwise be allowed. This list is not exhaustive.

One justification for these acts is that they flow from a form of current nationality, a distinction which is proper not only for immigration purposes, but also for treaty purposes. Indeed, the U.S. Constitution, with its "Indians not taxed" clause has long recognized a different status for Native Americans some of the time. Foreign nationals sometimes have different rights, which the federal government may establish.

This justification seems thinner over time, as Native American tribe members have increasingly integrated into the general melting pot of American society. Treaties notwithstanding, in daily life, Indian tribes look less and less like sovereign nations. Liechtenstein and the Vatican have more elements of sovereignty. In particular, Indian tribes have the secondary kind of sovereignty associated with U.S. states and federal political divisions, rather than the absolute sovereignty associated with truly independent states. Indeed, Indian tribe governmental structures in most cases have the lesser sort of independence associated with territorial governments and municipalities within U.S. states, rather than the significant autonomy of U.S. states.

Another justification is that the distinctions made represent different activities. This argument suggests that the real life relationship between the community represented by a tribe and a parent is different that the real life relationship between non-Indians and their communities. Indian tribes might, for example, have a relationship collectively with an Indian tribe, morally equivalent to a grandparent's relationship with a grandchild in much of the rest of U.S. society. In tribes with their own living languages, language issues that cannot be addressed outside a tribe, may be relevant.

Similarly, supervised religious drug use may differ from recreational drug use in the rest of society, and while it might be theoretically possible that other groups have bona fide religious drug use, legislators may not be convinced in reality there are other such bona fide users out there.

A third justification, at least in the child custody area, might be that this is a form of affirmative action in response to a history of abuse by courts in this area in the past, based upon the conclusion that this history is proof of a greater risk of abuse in the future by the courts. Child custody is particularly prone to this risk because it makes judgments on parenting based upon largely uncodified cultural parenting norms of the judge, the jury and social services agencies.

I don't know the cases in Indian law very well, or the actual justifications that are the basis for existing law. Likewise, I'm not terribly worried about the exceptions. The percentage of cases, and the number of people, respectively, that are impacted is modest outside a very small number of jurisdictions near Indian reservations. The definition of Indian tribe membership, moreover, which is based upon how many ancestors of a certain degree one has from a tribe (which varies from tribe to tribe), prevent these special rules from ballooning in importance.

Further, the select legal privileges afforded Indian reservations seem, on the whole, to be outweighed by the miserable state of law enforcement, weak economic situations, and limited government services that exist on most of those reservations. And, many of these legal distinctions are distinct to matters on or related to aactivities that are based at reservations.

Perhaps the most interesting question about Indian law is whether it is constitutionally unique. Can one constitutionally have, for example, different family law rules for members of different cultures, as many countries do now and as Britain is considering doing.

In the case of polygamy, the courts have generally said no. In the case of cousin marriage and of the formalities of marriage (including common law marriage) divergent practice has been generally tolerated. Courts have been skeptical, but not completely dismissive, of rabinnical arbitration in family law cases. Perhaps most notably, courts have generally taken a mixed approach to community property rights, honoring community property rights that accrue while a couple live in a community propety jurisdiction, while applying their own laws to other time periods.

Also, even if distictions can be made, should they be made? Have the distinctions made between Indians and non-Indians in American law been a success? Are Native Americans collectively and individually better off as a result? Is the United States more honorable as a result? Has anyone been harmed by these rules, and if so, whom? Has the Indian Child Welfare Act been a net benefit to Indian children, for example?

The Indian Child Welfare Act is also a natural social experiment that couldn't otherwise be ethically conducted that tests whether stronger protections for parental rights have any meaningful impacts for good or ill.

Tribal Justice in America

The tribal jail system is not large. The entire tribal jail system has fewer inmates than the City of Denver.

Hat Tip to the Sentencing Law and Policy Blog.

For Carolyn, Willi and Fred

In August of 2001, Carolyn Wagner came to Cortez, Colorado to honor the life of slain Navajo gay Two-Spirit youth Fred C. Martinez, Jr., and to support her mother, Pauline Mitchell. Fred was killed by Shaun Murphy, who plead guilty to murder and was sentenced to 40 years in prison three years ago. Carolyn had a reason for coming. The experience of her own son Willi. Then, this Spring, she became a victim herself.



Violent bigots in Arkansas, it is hard to agree that they are extremists in that state, attacked Willi and later his mom. I can't offer much to them. But, I join Daily Kos commentor Melvin in offering a flower of sympathy and concern.

One day Willie Wagner got beaten up during school lunchtime in Fayetteville. Again. Broken nose, bruised kidney, hematomas, lacerations. The three guys who did it said, "You're getting what you deserve, faggot."

On another day I met Willie's mom, Carolyn...

Carolyn drew people together, me included, to help with this issue. She told us Willi's story. [Willi has since changed the spelling of his name.] Willi had been harassed since junior high for being gay. It continued into high school. His teachers said that if he chose to be gay, he would have to expect such treatment. Everyone told Willie's parents to ignore such incidents and that there would be no punishment for those who had done the harassment.

After the bashing the school administration said that it wasn't a hate crime, that it wasn't a gay bashing, but maybe it was sexual harassment. So maybe they should write a policy about that. That's when the Task Force and PFLAG got involved. Change started.

Time passed but people in Arkansas didn't. Mom's experience echoed that of her son.

Sat May 13 05:47:15 CDT 2006

Carolyn Wagner, long time progressive activist, one time PFLAG National Vice President, and co-founder with me of Families United Against Hate, has become victim of a vicious hate crime. She has been stalked and harassed since January by a right wing extremist group who know of her work in gay rights. One of them attacked her at her home last month, and she has had major spinal and nerve damage as a result. She suffered some paralysis in her legs and is having emergency surgery tomorrow at St. Anthony's Medical Center, in North Little Rock, Arkansas.

She lived. But, no one should have to pay that price that Carolyn, Willi and Fred have paid in the case of Willi and Fred, for being born gay, and in Carolyn's case, for being a mother fighting to end the injustices that made her child suffer.