Wednesday, February 25, 2009

Three Books on American Indians, Land Loss, and the IRA

In its February 24, 2009 decision on Carcieri v Salazar the Supreme Court decided that the word "now" in the Indian Reorganization Act means the year 1934 when the Act was passed.

The term "Indian" as used in this Act shall include all persons of Indian
descent who are members of any recognized Indian tribe now under Federal
jurisdiction, and all person who are descendants of such members who were, on
June 1, 1934...

In light of this ruling I thought it might be appropriate mention some good books on the subject of how American Indian land was lost in the first place and how the IRA worked to reverse the tide.

In 1887 the Dawes Act divided Indian Reservations into individual allotments with the purpose of ending the very unAmerican custom of holding land in common and turning Indians into farmers. Another convenient consequence was to open un-allotted land to sale outside the tribe. The allotments were to be held in trust by the Federal Government for a specified period, after which they would become fee lands that could be sold by the individual owners. One purpose of the Indian Reorganization Act (part of FDR's New Deal) was to end the hemorrhaging of Indian land being sold for subsistence or, especially during the Depression, lost for taxes.

An excellent book on the history and effects of the IRA is The Nations Within, the Past and Future of American Indian Sovereignty. Under the IRA, provisions were made for the Secretary of the Interior or Congress to take land into trust for American Indian tribes. Since 1934, according to the NCAI website Interior has taken about 9 million acres into trust, accounting for only about 10% of the total lands lost between the Dawes Act and the IRA. Now the Supreme Court has ruled that the Secretary's ability to take land into trust applies only to tribes federally recognized as of 1934.

But as any school kid knows, most Indian land was already lost before The Dawes Act. Some Eastern tribes have been on reservations for over 300 years. Others like the Lenape who started in Pennsylvania, New Jersey and Delaware, were constantly pushed west until they ended in Oklahoma, which, for a time, was supposed to remain Indian Country until it too was opened to settlement. So how did the Indians come to lose all that land?

A common misconception is that Indian land was lost through conquest, but that isn't really accurate. Conquest by Law tells the history of Johnson v M'Intosh, the land tenure case that was the first of the Supreme Court decisions known as the Marshall Trilogy that formed the basis for American Indian Law. How the Indians Lost Their Land tells how, "between the early seventeenth century and the early twentieth century almost all the land in the present-day United States was transferred from American Indians to non-Indians."

Some of what you read here may be surprising.

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