1800s - Federal Indian Policy developes

The trail of tears was one of the many consequences of failed Indian policy in the 19th century.

        Small libraries could be filled with the volumes of scholarly works that have been written and published over the past two centuries on the evolution of federal Indian policy.   Much of that work is fine-grained investigations of settled principles of federal Indian law, case law, and legal theory.  (click here for more)

 Here are a few of the policies that guide most decisions at the federal level:

Federal Power and Obligations

  •  The Commerce Clause of the U.S. Constitution, treaty rights, and the Indian Non-Intercourse Acts, preempt the exercise of state power over Indian lands and resources.  This is source of constant friction between the states and tribes.
  •  Exclusive power over Indian matters flows to Congress from the Indian Commerce Clause of the Constitution.  Congress has the exclusive right to regulate commerce with the tribes.
  • The 1790 Trade and Intercourse Act formalized the role of the federal government as a necessary participant in Indian land transactions.  It underlies viable Indian land claims in the 21st century.
  • Congress has plenary power (Hitchcock v. Lone Wolf)over the tribes, but that absolute power is balanced by absolute responsibility and fiduciary obligations as a guarantor for the tribes' land and resources (i.e., timber, minerals, oil, water).
  • Congress can abrogate treaties, alter tribal powers, and extinguish title to land (but not to tribal owned 'commons' held in trust).
  • The U.S. Supreme Court has said it will review legislative actions to make sure they are rationally tied to the fulfillment of Congress' unique obligation toward Indians - obligations it has ignored, from time to time, with tragic consequences.
  • Courts have insisted that the Executive department conduct its dealings with Indians by the highest fiduciary standards.  Where public duty is in conflict with the interests of the Indians, public duty should yield.
  •  The federal courts have jurisdiction over Indians on the rez in certain federal cases.
  • States have little or no authority over Indian people, their land, or their resources.
  • Indian legal rights are the oldest in our society.   Native rights were recognized in order to provide a means for the occupation and sovereignty of the United States to be extended across the continent with a minimum of human costs.


         History reminds us that principles are one thing, and actions are often something entirely different.  No one has been more eloquent in describing federal Indian policy than the 19th century native rights activist, Wendell Phillips, who said: "...the system of injustice, oppression, and robbery which the Government calls 'its Indian Policy," which has covered it with disgrace as incompetent, cruel, faithless, never keeping its treaties, and systematically and shamelessly violating its most solemn promises, has earned the contempt and detestation of all honest men and the distrust and hate of the Indian tribes."