the 1913 case of United States v. Sandoval, a dispute over the selling of alcohol by non-Indians on Pueblo Indian land in New Mexico, the court condescended to call the Pueblos simple-minded and obtuse: “Always living in separate and isolated communities, adhering to primitive modes of life, largely influenced by superstition and [fetishism], and chiefly governed according to the crude customs inherited from their ancestors, [the Pueblos] are essentially a simple, uninformed and inferior people.”[10] Similarly, and as late as 1980, Supreme Court Justice Rehnquist said Native Americans “lived only for the day, recognized no rights of property, robbed or killed anyone if they thought they could get away with it, inflicted cruelty without a qualm, and endured torture without flinching.”[11]
The Johnson case, however, was just the first in a series that would incrementally decimate indigenous peoples’ land base on the continent, often pushing them to other open lands, and eventually relocating them to cities. Seven years after Johnson, in 1830, Andrew Jackson signed the Indian Removal Act, which would authorize the government to exchange lands west of the Mississippi River for eastern tribal lands. Some forty years after that, as the American conservation movement was taking its first steps, and National Parks were becoming fashionable displays of environmental integrity, the U.S. government lassoed larger tracts of land further west and again wrangled them away from natives. The Crow, the Blackfoot, the Nez Perce, the Shoshone, and the Bannock Indians’ insistence on hunting within the bounds of Yellowstone National Park baffled park authorities, who saw the natives as interfering with pristine wilderness. One government liaison to the Shoshone wrote in 1865, “Wild Indians, like wild horses, must be corralled upon reservations. There they can be brought to work, and soon will become a self-supporting people, earning their own living by their industry, instead of trying to pick up a bare subsistence by the chase.”[12]
The presence of these natives challenged the Western European assumption of dichotomous spheres of activity: During the week, white men worked and lived in the cities; on the weekends, they came to the wilderness to relax, commune with nature, and hunt for sport. The Indians of Yellowstone lived outside of those spheres, which is why they were eventually walled into various reservations in the area. That kept the West categorical, and it kept the National Parks comfortable only for weekend warriors.[13]
With the Indian Removal Act of 1830, as white settlers migrated further west, the beast of land consumption grew. The same year that the Indian Removal Act was signed into law, Congress also passed the first Preemption Act, which entitled any non-Indian settler on unsurveyed public domain to claim up to 160 acres and buy it from the government for $1.25 per acre. The act was originally intended to expire after two years, but was renewed in 1832, 1834, 1838, and 1840. In 1841, Congress extended the act indefinitely. It was finally repealed as late as 1891, during what became known as the Allotment Era for Native Americans, between the 1870s and 1930s.
The General Allotment Act (or Dawes Act) of 1887 authorized the parceling of reservation lands for individual sale. Individual Indians could claim parcels, but the surplus would be opened to homesteading by non-Indians.[14] “Congress dreamed up the Dawes Act…to destroy the Indian nations, then take the rest of their land,” writes Russell Means of the American Indian Movement (AIM) in his autobiography. “One must understand that to an Indian, ownership is a foreign concept. The earth is our Grandmother, who provides us with everything we need to survive. How can you own your grandmother? How can you sell her? How does a piece of paper that you probably can’t read prove ownership of something that can’t be owned?”[15]
The clash of traditional economies and the new American economy marks a definitive ideological shift in North American history. In the new American economy, all aspects of the environment were segmented and assigned various worths in terms of dollars, thus transmogrifying land into property, and laying the foundation for today’s U.S. real-estate market system. As Means describes above, the indigenous were surprised by this notion of private property: The primary economic institutions of the Six Nations of the Iroquois, for example, were longhouses in which all the tribe’s goods were stockpiled and doled out by women’s councils.[16] Collective ownership models defeated the idea of owning altogether, as value was based on use, and use was based on need. Since these practices applied similarly to land use, the implementation of Anglo-European ideas about private property were disruptive and disorienting to tribes, making the Allotment Era one of the most destructive periods economically, as well as culturally, for Indians. By permitting natives to maintain their land only in the form of an individual parcel, the U.S. government isolated Indians from their extended families and communities, while simultaneously dismantling the tribes’ custom of land sharing.
White custom, which had migrated to North America, now rapidly proliferated its individualist paradigms. By implementing arbitrary legal statutes, the U.S. government succeeded in compartmentalizing nearly every aspect of American life. By way of the Dawes Act, what was known as “Indian Country” was actually an acreage of land that, while often populated by some Indians, ironically also contained parcels owned in fee simple by non-Indians.[a] Some white men even extended their land holdings by marrying impoverished and often illiterate Indian women, then forcing them to work their own land.[17]
The indigenous land base was further torn apart along lines perforated by surveyors when Indians were forced to buy the plots they already lived on. Any Indian who resisted this movement toward cultural isolation and Anglo-Americanization was branded as an “irreconcilable” and subject to arrest, incarceration, or forced appointment of land.[18] According to Duthu, “The allotment policy was the key plank in the government’s assimilation efforts of the late nineteenth and early twentieth centuries designed to bring an end to the distinct cultural and political existence of Indian tribes.”[19]
Divesting natives of their right to determine who lived on their land further deprived them of their agency to define the character of the place where they lived—which still further smothered their cultural birthright. When Congress ended the allotment system in 1934, Indian land had dwindled to about 48 million acres, down from 138 million acres in 1887. At the end of the Allotment Era, Native Americans had the right of occupation on less than .02 percent of the land in the United States.[20]
In 1955, the Supreme Court heard the case of Tee-Hit-Ton Indians v. United States, in which the Tee-Hit-Ton Indians sought compensation for lumber taken from their lands. The resolution of the Johnson case from 123 years earlier figured heavily into the deliberation in Tee-Hit-Ton. This case was significant because it was the first time that the court distinguished Indian title from “recognized” title and, in Duthu’s words,
concluded that since the former was not “property” under the Constitution, Congress could extinguish the Indian title without making just compensation to the tribes. This holding effectively created a different class of property rights for certain Indian land claims to avoid triggering the legal obligation imposed on government by the Constitution’s Fifth Amendment, which states, in pertinent part: “Nor shall private property be taken for public use, without just compensation.”[21]
Here, Duthu is referring to eminent domain—the government’s prerogative to seize privately owned land in exchange for just compensation. But because the Supreme Court in 1823 deemed Indian peoples non-nations and earmarked their lands as non-property, it was ambiguous whether Congress should act under its eminent domain powers or under its trustee powers. If eminent domain was not applicable due to the status of Indian land, then just compensation need not be made.[22]
The Tee-Hit-Ton decision came about during the so-called Termination Era of the 1950s and ’60s. The Termination Era—just as it sounds—was a time during which the government committed to terminating Native Americans as a distinct people.[b] The cornerstone of this era was the highly destructive Urban Relocation Program. The program strategically moved indigenous individuals to selected urban centers around the country (including, but not limited to, Los Angeles, Dallas, Denver, Salt Lake City,
