A Fateful Time: The Background and Legislative History of the Indian Reorganization Act

A Fateful Time

Wilbur S. Shepperson Series in History and Humanities

ELMER

R.

RUSCO

A Fateful Time The Background and Legislative History of the Indian Reorganization Act

University of Nevada Press Reno & Las Vegas

Wilbur S. Shepperson Series in History

Library of Congress

and Humanities

Cataloging-in-Publication Data

Series Editor: Jerome E. Edwards

Rusco, Elmer R. A fateful time: the background

University of Nevada Press

and legislative history of the Indian

Reno, Nevada 89557 usa

Reorganization Act / Elmer R. Rusco.

Copyright © 2000 by

p.

University of Nevada Press

series in history and humanities)

All rights reserved

Includes bibliographical references and

Manufactured in the United States

index.

of America

isbn 0-87417-345-0

cm. — (Wilbur S. Shepperson

1. Indians of North America— The paper used in this book meets the

Legal status, laws, etc.—History

requirements of American National

2. United States. Indian Reorganization

Standard for Information Sciences—

Act—Legislative history. I. Title.

Permanence of Paper for Printed Library

II. Series: Wilbur S. Shepperson series in

Materials, ansi z39.48-1984. Binding

history and humanities (Unnumbered)

materials were selected for strength and

kf8205.r87 2000

durability.

323.119707309 — dc21

First Printing 09 08 07 06 05 04 03 02 01 00

54321

00-008554

To all those, Native Americans and others, who support tribal sovereignty.

Contents

Preface

ix

Chapter One Indian Self-Government and the National Government During the 1920s

1

Chapter Two The Status of Indian Governments During the 1920s

35

Chapter Three Conflict and Consensus: The 1920s

62

Chapter Four The Rhoads-Scattergood Administration: New Era or Transition?

94

Chapter Five The Tribal Alternative: Early Versions

114

Chapter Six John Collier and the Tribal Alternative

137

Chapter Seven Drafting the ira Proposal

177

Chapter Eight The ira Before Congress: Stalemate and Response

220

Chapter Nine After the Summit: The Final Form of the ira

255

Chapter Ten Conclusion

282

viii

Contents

Notes

305

Bibliography

333

Index

345

Preface

The making, and then the administration, of the Indian Reorganization Act, was central . . . in the unfolding of a philosophy of democratic grass-roots action . . . because [it] replaced the Bureau’s authority with Indian autonomy. —John Collier, Commissioner of Indian Affairs, 1933 –1945

The reforms of the Indian New Deal failed to endure because, in the last analysis, they were imposed upon the Indians, who did not see these elaborate proposals as answers to their own wants and needs. — Graham D. Taylor, The New Deal and American Indian Tribalism

The quotations above typify polar and conflicting judgments on the significance and impact of the 1934 Indian Reorganization Act, or ira.1 This statute, often referred to as the Wheeler-Howard Act after its chief alleged congressional authors, belongs among the small group of national laws that has profoundly affected the lives of Native Americans.2 The ira was the most important general statute after the General Allotment Act of 1887 and probably the most important single statute affecting Indians during the two-thirds of a century since its passage. As one indicator of its importance, over half the Indian governments in the United States today are organized under its provisions or those of separate statutes (affecting Oklahoma and Alaska) that parallel the ira in major ways. Clearly, Native Americans and those who wish to understand their unique place in American life need to understand this statute. It is particularly important to be informed about the ira’s impact on the restricted ability of Native Americans to govern themselves. Yet scholarly opinion on how the ira has affected Indian governance is deeply divided. John Collier and Graham Taylor cannot both be right on this question, although the truth may well lie somewhere between their conclusions. The genesis of this book was the discovery that a study of the impact of the ira on the Nevada Agency (which had authority over most Indians living in Nevada in the 1930s) could not be undertaken without an undisputed summary of the intent of the ira, which did not exist. Scholarly opinion until the mid-1970s usually ascribed to the ira a generally positive role in Native American life, particularly with respect to self-

ix

x

Preface

government. Gary Stein remarked in 1972, for example, that “there are numerous . . . testimonials to the success of the ira.” John Collier asserted many times that the act had stopped and reversed the destruction of the Indian land base, revitalized Indian self-government, and halted the erosion of Native American cultures. Typical of the tendency to agree with Collier’s assessment was this conclusion by Theodore H. Haas: “In lieu of a pattern of Indian administration emphasizing fixed conformity . . . the new policy encouraged cultural diversity, a part of the essence of democracy. . . . The law has offered Indians, whether organized under the ira or unorganized, a greater opportunity in their own local community or elsewhere, alone or in association with others, to shape democratically their own destiny.” 3 Collier was the chief proponent of the ira and head of the agency that attempted to implement it, and Haas played a role as a government attorney in carrying out the ira, so perhaps their views can be discounted (although not dismissed) as biassed. Yet for some years scholarly outside observers often echoed the conclusions of Collier and Haas. For example, anthropologist Henry F. Dobyns wrote in 1968 of “the therapeutic value of tribal selfgovernment” that had followed passage of the ira. Kenneth Philp, author of the only biography to date that has attempted to evaluate Collier’s overall impact on Native American life, concluded that the claims made by Commissioner Collier were basically justified. Although he noted that Collier had fallen short of reaching his goals, Philp attributed this partial failure chiefly to non-Indian resistance to his attempt to resurrect a “Red Atlantis”—a term Collier had used as the title for a 1922 article in The Survey.4 Starting twenty years ago, however, scholarly opinion began to come to conclusions much more critical of the ira and the efforts to implement it under Collier’s leadership. Although no comprehensive study of the actual effect of the ira on Native American self-governance has yet appeared, in 1980 Graham Taylor published a study describing the act as carried out in several parts of Native America, with the overall assessment of the ira’s effect on selfgovernance quoted above. While Taylor admitted that there were some positive aspects of the ira and that it did not have the same impact in all Native American communities, he concluded that its “economic programs had substantial effect only in specific situations and did not permanently improve Indian living standards” and that “its political programs produced institutions and arrangements that survive, but the goal of genuine Indian self-determination remains a dream.” 5 The core of the revisionist critique, first articulated by some Indian activists in the mid-1970s, is that the ira’s provisions dealing with self-government are fundamentally flawed and on balance have reduced the capacity of Native American communities to govern themselves. Specifically, Taylor concluded

Preface

xi

that “the most durable legacy of the Indian New Deal, the tribal governments established under the Indian Reorganization Act, evolved into a form far removed from that which Collier and his fellow reformers intended or anticipated, and are today focal points for rivalry and contention among Indians rather than spokesmen for their aspirations.” 6 It has been charged that the Bureau of Indian Affairs (bia) in implementing the ira went around the country imposing a “model constitution” based overwhelmingly on non-Indian structures and values and that the chief effect of the period of constitution-building following passage of this landmark statute was to suppress traditional governing structures, which were much more attuned than the new ones to Native American culture and values. This conclusion has become a standard part of the growing literature on contemporary Native American life.7 Given the width of the gap between interpretations of the ira and the importance of the issues, it is surprising that no thorough and legally informed study of the background and legislative history of the act has previously appeared. The excellent biographical studies of John Collier by Kenneth Philp and Lawrence Kelly are valuable but insufficient. Philp covered Collier’s entire career in one volume and so could not deal in detail with the ira or the issue of Indian self-government. Kelly’s admirable study of Collier’s early years (ending in the mid-1920s) has unfortunately not been followed by similar published accounts of Collier’s later career, although Kelly did publish an excellent article on Collier’s selection as Indian Commissioner. Taylor’s study of the implementation of the ira devoted only three chapters to its origins. The closest to an adequate study is The Nations Within: The Past and Future of American Indian Sovereignty, which appeared in 1984.8 In this book noted Native American scholar Vine Deloria Jr. and political scientist Clifford M. Lytle devoted seven of seventeen chapters to the subjects discussed in this book. However, they paid inadequate attention to Collier’s role and ideas. Moreover, while they used the published hearings of the House and Senate committees that held hearings on the ira draft bill in 1934, they did not tap major sources at the National Archives—notably the Wheeler-Howard File of the Bureau of Indian Affairs, Collier’s Office File, and numerous Bureau and Department of the Interior files dealing with legislation—and missed other sources that could have enriched their work. Other scholars have contributed significantly to portions of the story told here. Curtis Berkey contributed three articles in the American Indian Journal in 1976; he is the first person to have used the Wheeler-Howard File in writing on this subject. J. Leiper Freeman Jr.’s dissertation, “The New Deal for Indians,” includes the only significant source discovered so far about the Wheeler-

xii

Preface

Zimmerman summit, which led to the final form of the ira, and is sophisticated about congressional sources. But Freeman did not utilize important archival sources or deal with the complex events of the period leading up to passage of the ira.9 Although this study cannot resolve conclusively the dispute over the actual impact of the ira, it provides a sounder base than currently exists for dealing with the first question that must be addressed: What was the legislative intent of the ira? This book devotes substantial attention to several important issues not previously given sufficient notice: the nature and significance of the general pattern of judge-made Indian law; the allotment policy and its relation to Indian self-government; the nature of Native American governments before the ira; the differences among reformers in fundamental values and understanding of the nature of Indian policy; the views and actions of John Collier, who was far more important than any other individual in determining that there would be a reorganization act and in affecting its specific provisions; the status of judge-made Indian law in the early 1930s; the significance of relations between the Collier administration and congressional committees while the measure was moving through Congress; and how the effort to pass the ira was influenced by the relation between the president and the Congress in the second year of the New Deal. Further, in each of these areas the strongest focus is on the significance, in terms of Indian self-governance, of the factors and events discussed, since conclusions on this issue are highly disputed and of greatest importance. This book assumes that the period leading to passage of the ira in June 1934 was indeed “a fateful time” for the Indians, as John Collier said in 1933.10 The reader should be warned that a complete account of everything that happened affecting Native Americans and government policy toward them during the period covered by this book has not been attempted. Moreover, because the focus is on self-government, my reading of some of these events differs from previous accounts in some respects. For example, some of the differences with the conclusions reached by Frederick E. Hoxie in A Final Promise result from the fact that he does not discuss Indian self-government in depth.11 Beyond this study, of course, lies another subject not broached here—how implementation of the Indian Reorganization Act affected Indian self-governance and other aspects of Native American life. In spite of the substantial amount of time that has passed since 1934, a firm overall judgment about the effect of the ira as it was actually carried out in every part of Indian country is still premature. There is still no thorough study of how the Bureau of Indian Affairs organized itself to carry out the act and few studies of the actual writing of consti-

Preface

xiii

tutions and related actions in specific Native American communities. It is my hope that this book will make such studies and the drawing of overall conclusions easier, by clarifying what various players intended when they helped to enact the Indian Reorganization Act. Two basic assumptions underlying this study should be made explicit at this point. First, it is assumed here that ideologies play important roles in determining historic events, particularly for the most sophisticated and engaged actors. By ideology is meant simply the structure of ideas, which determines the meanings ascribed to particular events. Political ideologies (which might also be called theories or paradigms) usually include notions of right and wrong, conceptions of the goals of government policy, understandings about causality, and clues for determining which factual events are to be given attention. The more sophisticated the political actor and the better informed he or she is about the issues dealt with by the ideology, the more logically consistent the ideology usually becomes. In this case, the ideologies organizing reality for John Collier and Senator Burton K. Wheeler obviously played extremely important parts in determining whether Congress would amend statutes affecting Indians in a major way in early 1934, but so did patterns of political ideas that were rejected. Ideology, although of substantial importance politically, is not the only element that affects political outcomes, however. There are interests—matters that affect the personal well-being of relevant political actors or of groups in the population—and the constraints provided by the nature of the decisionmaking structures within which political controversy takes place. It is not assumed here that the meaning of legislation is determined solely by ideology, but the pictures in people’s heads play very important roles in these matters. For example, whose interests are relevant is decided at least partly by the roles ascribed to various groups by ideologies. For a long time at the national level being studied here, particularly when the most important general policy decisions were made, the relevant political actors were very few, and almost no Native Americans can be included in the group. Both legislative and major administrative policy at the national level were the domain of a quite small group of people. Few senators and representatives knew much about Indian policy or were interested in it, partly because Indian voters were of minor importance except in a handful of states. Likewise, few administrators at top levels were well-informed on the issues arising out of Indian policy and/or more than superficially interested in them. Outside the government, the same general situation prevailed. Except for matters narrowly affecting specific groups (when they could get congressional attention at all) the number of individuals and groups informed and concerned about national Indian policy can be described only as tiny. It has not

xiv

Preface

been possible to learn all of the contacts with congressional offices that had some direct impact on passage of the ira, but it is clear that the key legislators dealt primarily with only a few individuals in the Bureau of Indian Affairs and the Department of the Interior and a few groups outside the government. In spite of unprecedented but belated efforts by the Collier administration to involve Indians outside Washington, few Native Americans played roles of importance in the struggle over the ira. However, in the last analysis Indian involvement nevertheless had a powerful impact on the fundamental nature of the law that was passed in 1934. How to attach a label to this small group is difficult. I began by calling them collectively the Indian policy élite but eventually concluded that the people who were of most importance in determining national Indian policy lacked both the consistent unanimity and (collectively) the structural characteristics implied by that term. Instead, they are referred to here as the friends of the Indians, a nineteenth-century term that could not be improved upon. However, it must be kept in mind that most Indian policy takes place not at the national level but on reservations or other settings where significant numbers of Native Americans live. At this level Indians were and are the main actors. This situation did not change when the effort was made to translate generalities of the ira into actual policy on reservations or elsewhere in Indian country. At this level Native American input was far more important and can be understood only by examining local conditions in hundreds of communities. However, adequate studies have yet to be carried out in more than a few instances, and this book does not get into this important area. It is appropriate in a study of this kind to state my own personal preferences on the issues discussed in this book. I believe that the thrust of national governmental policy should be toward as substantial, meaningful self-government for Native American communities as the realities of earlytwenty-first-century society in the United States allow. These societies are the descendants of the various self-governing communities collectively constituting Native America when Europeans arrived in what became North and South America, and the first peoples have never relinquished completely their previous independent existence. Moreover, U.S. law dealing with Indians has always been based on judicial recognition of this reality, although much of the Indians’ actual right to govern themselves has unfortunately been lost or seriously eroded. I do not believe this commitment to Indian self-government has clouded my ability to understand the events described in this book, but it has influenced the choice of the topic as worthy of study and the questions asked. It is my hope that the study will assist Native Americans and others wishing to preserve and strengthen Indian sovereignty.

Preface

xv

The research leading to this book has gone on for many years and has relied on numerous institutions and individuals. The most important source of data has been various units of the National Archives and Records Administration: the National Archives in Washington, D.C.; Regional Archives in Denver, Laguna Niguel, and San Bruno; and Presidential Libraries in Hyde Park, New York, and West Branch, Iowa. Several research libraries have been very helpful. I am indebted to librarians and archivists at the California Academy of Sciences; the Nevada State Historical Society; Princeton University; the South Dakota State Historical Society; Stanford University; a unique branch of the University of California, Davis, library run by Michael Harrison; the University of California at San Diego; the University of Nevada, Reno; and Yale University. I would like to thank the University of Nevada, Reno, for a sabbatical year to do research on the book and the Travel to Collections program of the National Endowment for the Humanities, the Hoover Presidential Library Association, and the Nevada Humanities Committee for financial assistance. Julie K. Schorfheide’s expert assistance reduced errors substantially and greatly improved the clarity and readability of the book. I have learned much from involvement with Indian affairs in Nevada over many years and wish to record my thanks particularly to John and Effie Dressler, Joseph H. Ely, Robert Frank, Corbin Harney, Glenn Holley, Robert Hunter, Thomas E. Luebben, Jerry Millett, Elwood Mose, Virginia Sanchez, Elaine Walbroek, Brian Wallace, and Raymond Yowell. Several colleagues have helped with the writing or my education on the issues: Steven Crum, Vine Deloria Jr., Faun Dixon, Jack D. Forbes, Timothy Haller, Lawrence Kelly, Mary Rusco, and Al Ziontz. Rusco has read much of the manuscript at various stages and offered help. Finally, Barbara Forbes, Nancy Vucinich, and William and Ann Scott contributed by providing places to work free of telephones and other distractions, and Pamela Zeizer provided valuable editorial assistance. Any remaining errors or failures to comprehend are, of course, my responsibility.

A Fateful Time

Chapter One Indian Self-Government and the National Government During the 1920s

The Indian Reorganization Act grew out of the interaction of Native American societies with the United States government, particularly in the decade and a half before 1934. National government policy toward Native Americans had been far from consistent from the ratification of the Constitution to that date. In fact, the national government’s efforts in this area were notable for numerous dramatic reversals of both programs and goals. At first Native American societies were dealt with as sovereign nations; treaties were made with them, and the national government’s activities were restricted chiefly to military, diplomatic, and trade relationships with various Indian societies. This policy resulted in a large de facto reduction of Native American landholdings but left large areas under Indian control. But in an abrupt change of direction during the 1830s, the national government removed many Native Americans beyond the Mississippi River to a new Indian Territory where they could govern themselves and have their land ownership rights protected while white Americans occupied their remaining lands east of the great river. In the 1850s another reversal resulted in practice in a policy of creating reservations in the western United States. In 1871 Congress abruptly forbade further treaty-making, although existing treaties were not abrogated and in practice much of the previous pattern persisted in the form of agreements made with various societies. However, one aspect of the new policy was a subtle but important shift toward treating Indians on reservations as to some degree under the authority of the national government, although the courts ruled that Indians were not under the jurisdiction of the United States and therefore did not become citizens by birth after adoption of the Fourteenth Amendment to the federal Constitution. In practice, national government control over Indians expanded. In still another about-face, at the end of the nineteenth century and the beginning of the twentieth the promise to maintain the Indian Territory as an inviolate preserve was violated. Oklahoma was officially opened to non1

2

A Fateful Time

Indian settlement, the Indian governments that had functioned for decades in various Indian communities within the territory were destroyed, and Indian lands were once more greatly reduced. From the 1880s on, the national government, at both administrative and congressional levels, was dominated by advocates of the ideology of forced assimilation and by the allotment policy (to be discussed more fully in the next chapter). This well-established pattern provided the background for the events of the 1920s, which prepared the way for the Indian Reorganization Act. Several elements of the system that had been in place since the 1880s, particularly those strongly affecting Native American self-government, are noted in the next chapter. First, however, it is necessary to record that Indian law, as created and interpreted by judges, had not changed as much or as erratically as policy created by administrators and legislators. In fact, in a fundamental sense there was an underlying consistency in judge-made Indian law, a circumstance that created conflict between Indian law and the policies pursued at various times by Congress.

The Conflict between Law and Administration The Constitution of the United States is practically silent on the role of Indians in the American polity. It authorizes the Congress to regulate foreign and interstate commerce plus commerce “with the Indian Tribes,” and it states that “Indians not taxed” will not be counted when congressional seats are allocated among states. Both of these provisions arise from the recognition that very few Native Americans were citizens or subjects of the United States in any sense when the Constitution was ratified. The most important aspect of early national/Native American interactions for many decades—the treatymaking process— does not specifically mention Indian nations as parties to such agreements. The national judiciary, especially the Supreme Court, created the structure of law relating to Native Americans after the Constitution was adopted. This legal structure, unique in this country—no other groups have the legal standing of Indians—is also unique among other nation-states, although in recent decades there have been attempts in some other countries to move toward the U.S. pattern. This legal structure was in place and being followed by the courts during the 1920s and early 1930s, although the brilliant codification by Felix Cohen in the Handbook of Federal Indian Law did not systematize the structure and reveal its underlying symmetry until the 1940s.1 The basic elements of this legal system were formulated initially and primarily by Chief Justice John Marshall in the first third of the nineteenth cen-

Indian Self-Government and the National Government During the 1920s

3

tury. After examining how European nations and then the early United States had defined Native Americans legally, Marshall concluded, in Worcester v. Georgia, that the Indian nations had always been considered as distinct, independent, political communities, retaining their original natural rights. . . . The very term “nation,” so generally applied to them, means “a people distinct from others.” The constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, . . . admits their rank among those powers who are capable of making treaties. The words “treaty” and “nation,” are words of our own language. . . . We have applied them to Indians, as we have applied them to the other nations of the earth; they are applied to all in the same sense.2 Marshall was giving legal meaning to the practice of concluding treaties with Indian nations; hundreds of these documents were negotiated (although some were not ratified) before Congress stopped the practice in 1871. But even when treaty-making ceased, the existing treaties were stated to be still in effect and binding; they are still appealed to in legal proceedings, although the Supreme Court has held that Congress can unilaterally revoke a treaty, by implication as well as explicitly.3 Several aspects of the structure of Indian law created by the courts and judicial interpretation of the treaties can be summarized as they still existed in 1920. These were: 1. Native American governments no longer possessed the right to control their foreign policies; for this purpose the national government had assumed sole authority. However, some Indian nations today still insist that they retain some rights of sovereign nations in this area. 2. From their perspective, the European nation-states that came to North America had acquired ownership in some sense of the lands belonging to Native American societies simply by “discovering” them. Chief Justice John Marshall again wrote the first and most fundamental court decision on this question, Johnson v. M’Intosh.4 In this opinion, Marshall held that the first non-natives on the scene had gained an ownership right over Native lands simply by being the first Europeans to assert such a right. But the right was not absolute; in practice, it amounted to an exclusive authority as against other European nation-states to acquire the lands of Native societies by various legal means. In other words, Indians had to be dispossessed of their lands by conquest, purchase, or agreement (in the form of treaties) in spite of this discovery right. Indians retained occupancy rights to their lands until legally divested of them by one of these means.

4

A Fateful Time Marshall ruled that the U.S. government had inherited the authority to acquire Indian occupancy rights when it came into existence. Because of the supremacy clause of the Constitution, only the national government—not states or individuals— could acquire full ownership of Indian lands. In practice, Native Americans were deprived eventually of almost all of their property through many means, only some of which were legal. Legally, most Indian property rights questions were not settled until the 1980s, when in almost all cases the Indian Claims Commission created by Congress in 1946 completed its work. However, it did so by taking it for granted that all Native American lands except those remaining in reservations had by that time been lost; the only issue it would consider was whether compensation to the survivors should be paid and, if so, how much. In a few instances Native Americans were still claiming in the 1990s that their property rights had never been extinguished.5 3. The United States Supreme Court in the first decade of this century declared that Indians living on reservations possessed water rights dating from the creation of the reservation, whether or not these were explicitly stated in treaties or other formal documents. In the 1905 Winans case, which dealt with fishing rights, the court stated the underlying logic behind this decision: Indians possessed aboriginal rights and continued to retain them unless they had agreed to relinquish them or Congress had abolished them. In 1908, in Winters v. United States, this logic was extended to water rights.6 Thus, even in periods when Congress ignored Indian rights, the courts sometimes extended them. 4. In practice after the late 1860s, many (although certainly not all) Indians lived on reservations. From an Indian point of view these were remnants of their former holdings still under their control; from the standpoint of the courts the reservations were areas held in trust for Indians by the national government. Again because of the supremacy clause, states had no jurisdiction over reservations except where explicitly granted it by Congress. 5. The federal government had a legal obligation, derived from provisions of treaties, to protect the rights of Indians on reservations against state and local governments and individuals. As Marshall put it, the relation between the national government and Native American societies resembles that of a guardian to a ward. Down to the present, there has never been any legal doubt that the national government owes some kind of protection to Indians. At times actual governmental behavior has fallen far short of upholding this obligation and at other times actions have been taken in

Indian Self-Government and the National Government During the 1920s

5

direct contradiction to this responsibility, but the courts have consistently maintained that the national government has a trust responsibility toward Indians. 6. In the early years of this century, in Lone Wolf v. Hitchcock, the Supreme Court ruled that Congress has plenary power over Indians; it can revoke treaties and even Indian sovereignty if it chooses to do so, and can extend national authority over Indian nations at will.7 However, before 1920 there had been no general abolition of Indian sovereignty. Piecemeal statutes, such as the Major Crimes Act (passed in 1885 to overcome a court decision resting on the fact that the national government had never acquired criminal jurisdiction over individual Indians), had eroded Indian sovereignty to a significant extent. One of the most egregious of these statutes, the destruction of the Indian Territory without Indian consent, had provided the occasion for the ruling in the Lone Wolf case. In some instances the sovereign rights of particular societies had been abolished or drastically reduced. Moreover, the Supreme Court had sustained the allotment policy, which had resulted in practice in the loss of huge amounts of Indian land. These exceptions did not, however, eliminate much remaining Indian sovereignty. The plenary power doctrine has proved in recent decades a potent means of diminishing Indian sovereignty. While “it is settled today . . . that Congress is subject to constitutional strictures in its dealings with Indians,” the Supreme Court has never in fact declared unconstitutional any statute dealing with Indians, even when these have abolished Native governments without their consent, taken their property, denied them Indian status, or violated their rights in other ways.8 But most of these results of the pernicious plenary power doctrine lay in the future when the second decade of the twentieth century opened. 7. One of the most important remaining aspects of Indian sovereignty was the right of Native American societies to govern themselves. This right had existed before Europeans arrived in the New World and had never been withdrawn except in limited ways. As Felix Cohen wrote in “Powers of Indian Tribes” and later in the Handbook, “Perhaps the most basic principle of all Indian law, supported by a host of decisions hereinafter analyzed, is the principle that those powers lawfully vested in an Indian tribe are not, in general, delegated powers granted by express acts of Congress, but rather inherent powers of a limited sovereignty which has never been extinguished. Each Indian tribe begins its relationship with the Federal Government as a sovereign power, recognized as such in treaty and legislation” (italics in original).9

6

A Fateful Time

In other words, during the 1920s the courts recognized that Indian societies had substantial rights, not derived from the Constitution, that had never been taken away from them. These rights were not as extensive as they once had been, but they were still real as far as the courts were concerned. One aspect of this legal theory was the recognition that Indian societies had the right to govern themselves, by political structures of their own choosing. Overall, as John Collier noted during the 1920s, Indian policy was a type of colonial rule; the underlying reality was that Europeans and then the Americans who were culturally their descendants had made the most important decisions for Native American societies for some time. But there have been a number of different patterns of colonial rule during the last few centuries, when European control extended to most of the world before it started to recede during World War II. In the American model, the legal doctrines outlined here constituted (and remain) a major element of the colonial pattern, which by no means abolished Indian sovereignty. A number of statutes still in force during the 1920s grew out of and often explicitly stated these legal realities. Appropriation laws often contained specific items to carry out specific treaty-based obligations. Moreover, several statutes authorized the making of agreements with Indian societies—a replacement for treaties in many instances. For example, Section 424 of Title 25 of The Code of Laws of the United States as it stood in 1925 authorized the secretary of the Interior to negotiate “agreements with any Indians for the session to the United States of portions of their respective reservations of surplus lands.” 10 Numerous statutes required the consent of Indian societies, sometimes explicitly of their governments, before certain actions could be taken. For example, the president was authorized to consolidate two or more Indian agencies “with the consent of the tribes to be affected thereby, expressed in the usual manner.” One of these consent statutes, which played an important role during the 1920s in establishing the Navajo Tribal Council, had been enacted in 1891. Section 327 of Title 25 stated that “where lands are occupied by Indians who have bought and paid for the same, and which lands are not needed for farming or agricultural purposes, and are not desired for individual allotments, the same may be leased by authority of the council speaking for such Indians” under “terms and conditions” proposed by the Indian agent and subject to the approval of the secretary of the Interior. There were also numerous statutes referring to governing authorities of specific tribes or nations. The word council was used in two other statutes, in addition to the one cited above; eight statutes referred to the “chief” or “chiefs” or “headmen” of tribes; and one referred to the “heads of tribes or bands.” Another of these statutes gave superintendents of Indian affairs the authority to punish a trespasser on allotted lands, if the person was a “chief or headman of

Indian Self-Government and the National Government During the 1920s

7

a band or tribe,” by suspending the trespasser from office for three months. Still another statute allowed the secretary of the Interior to let Indian governing authorities control agency employees. This law stated that “where any of the tribes are, in the opinion of the Secretary of the Interior, competent to direct the employment of their blacksmiths, mechanics, teachers, farmers, or other persons engaged for them, the direction of such persons may be given to the proper authority of the tribe.” 11 The term tribal authorities is used in another section and tribal organization in a third. One of the most important laws acknowledged the criminal authority of Indian governments (even though, as noted above, national law applied to a small number of specified crimes). Section 218 of Title 25 stated that the general criminal law of the United States did not extend “to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe.” These statutes were often ignored, but occasionally they decided important questions. One of the few Supreme Court decisions during the 1920s dealing with the authority of Native American governments declared invalid an agreement between a non-Indian and the governor of the Indian village of Santa Rosa in Arizona. The inhabitants of this village were part of the Tohono O’Odham nation, then known to the federal government as the Papago tribe. The agreement was declared invalid because it did not have the consent of the council of the village, as required by law. The decision relied partly on the obligation of the national government to protect Indian rights; it stated that “the rights of Indians, unlettered and under national wardship, are here involved.” But the decision also turned on the fact that the contract that gave rise to the case violated two national laws then in force. One of these provided explicitly that any agreement by “‘their tribal authorities’” affecting the lands of Indians had to contain an explicit written statement of “the ‘scope of authority’” of the government involved and “‘the reason for exercising that authority.’” Because the agreement did not meet this statutory requirement, it was invalid.12 Another example of the importance of statutory as well as judge-made law during this period is that an effort by the bia to change Indian customs of marriage and divorce was aborted by a legal opinion citing both kinds of law to support the conclusion that “so long as Indians continue in tribal relations their domestic affairs are controlled by their peculiar customs.” Specifically, this opinion held that the validity of “Indian custom” marriages was recognized by several statutes and court opinions.13 Partly in response to this opinion, an effort was made in 1926 (described below) to get Congress to outlaw marriages in conformity with tribal law, but this effort failed. Another illustration of the importance of the legal structure was that the

8

A Fateful Time

granting by Congress in 1924 of citizenship to all Indians not already citizens had little impact on the authority of Indian governments. The courts held that, because the Congress had not stated explicitly that declaring Indians to be citizens was intended to eliminate tribal authority, it had not had this effect. Likewise, the courts held that the Dawes Act (the general statute providing for allotment of Indian lands) had not automatically changed the legal status of Indians. This result was reached because the statute had not stated explicitly that this status was changed, although perhaps Congress assumed that it was. Both of these issues are discussed more fully in the next chapter.

Administrators and Indian Self-Government Felix Cohen noted in his Handbook the unfortunate fact that there has often been a difference between the way courts and administrators have viewed the legal status of Native Americans. He wrote that “the Indian’s right of selfgovernment is a right which has been consistently practiced by the courts, frequently recognized and intermittently ignored by treaty-makers and legislators, and very widely disregarded by administrative officials.” 14 The gap between these two perceptions of Indian law in fact was a central problem for Indians for several decades before the Indian Reorganization Act. The actual treatment of Native American governments by officials of the national government agency with primary responsibility for dealing with them is quite complex, however. On the one hand, the leadership of the bia undoubtedly believed that the proper goal of their work was the eventual abolition of Indian self-government. Buttressing this view was the concomitant belief that in many Native American societies such governments had disappeared. On the other hand, the bia in fact recognized many Indian governments and even had an unwritten policy for doing so, which gave the Bureau practically unlimited authority to decide when, whether, and under what conditions to extend such recognition. Moreover, the agency created several such governments, or attempted to do so, when such action would serve its objectives. In short, the bia actually dealt with existing governments in many instances, in spite of the belief that such governments did not exist.15 t h e id e o l o g y o f f o r c e d a s s i m i l at i o n The commissioners of Indian Affairs from John D. C. Atkins (who was in office when the Dawes Act was passed) to 1929 had been united in their belief that their task was to bring about the assimilation of American Indians into general American culture. This was even true of the first commissioner who was an

Indian Self-Government and the National Government During the 1920s

9

Indian—Ely S. Parker. The hostility to Indian self-government was merely one aspect of this underlying policy orientation, which was a well-worked-out system of ideas. Forced assimilation is the most appropriate name for this pattern of ideas, because its essence was that Indians were to be compelled to become assimilated rather than offered choices.16 One of the strongest advocates of forced assimilation, who clearly stated the implication of this ideology for Indian self-government, was Theodore Roosevelt. With his usual forthrightness and vigor, Roosevelt stated in 1889 that “nowadays we undoubtedly ought to break up the great Indian reservations, disregard the tribal governments, allot the land in severalty (with, however, only a limited power of alienation), and treat the Indians as we do other citizens, with certain exceptions, for their sakes as well as ours.” 17 By the time he had become president, Roosevelt was sure that it was time to complete the assimilation of the Indians, chiefly because of the impact of the allotment policy on their societies. He said in his first annual message to Congress that “in my judgment the time has arrived when we should definitely make up our minds to recognize the Indian as an individual and not as a member of a tribe. The General Allotment Act is a mighty pulverizing engine to break up the tribal mass. . . . We should now break up the tribal funds, doing for them what allotment does for the tribal lands; that is, they should be divided into individual holdings. . . . The marriage laws of the Indians should be made the same as those of the whites.” 18 These statements clearly express the determination to use national authority to accomplish assimilation. At the same time, partly because the federal courts continued to recognize Indian sovereignty, partly because federal administrative control was assumed to be a necessary tool to force assimilation, and partly because the self-preservation needs of the bia undoubtedly helped shape policy, national administrators continued to acknowledge the trust responsibilities of the national government toward Native American societies. In fact, no major steps to speed up the process of assimilation were taken during the 1920s. Frederick E. Hoxie, in A Final Promise: The Campaign to Assimilate the Indians, 1880 –1920, has argued that between passage of the Dawes Act in 1887 and 1920 a significant shift took place in the societal and governmental views of Native Americans. According to Hoxie, by 1920 government officials had given up on actually achieving the goals of the forced assimilation policy and had begun to view Indians as a “minority group” doomed by its racial backwardness to a permanent position of inferiority in American society.19 While this thesis is discussed more fully in chapter 2, during the 1920s the highest governmental officials dealing with Indians displayed no indication that they had given up on the ultimate goal of assimilating Indians into the

10

A Fateful Time

wider society. It is also the case that they had not switched to a policy of termination, which called for ending immediately the unique Indian legal status. t h e b u r k e a d m i n i s t r at i o n Charles H. Burke served as commissioner of Indian Affairs from May 7, 1921, until March 9, 1929, during the Harding and Coolidge administrations under Secretaries of the Interior Albert B. Fall, Hubert Work, and, briefly, Roy D. West. Burke was a former six-term representative from South Dakota, a state with a large Indian population, and had served on the Indian Affairs Committee of the House before his appointment. One of the major modifications of the allotment policy, the Burke Act of 1906, was named after him.20 Burke’s assistant commissioner was Edgar B. Meritt, a career civil servant who had started his federal service in the Government Printing Office before the turn of the century. About 1905 he had transferred to the Bureau of Indian Affairs and there served in various positions, including the Bureau’s “chief law officer,” until he was appointed to the second-most important post in the Bureau in 1913, during the Wilson administration. In 1933, although he had not been in high office in the Bureau for four years, Meritt was a strong candidate for Indian commissioner because he was backed by the majority leader of the Senate, Joseph Robinson of Arkansas, Meritt’s home state.21 Meritt agreed with Burke in viewing assimilation as the goal of the Bureau’s efforts, and these views were supported by the secretaries of the Interior for whom Burke and Meritt worked. However, both also agreed that the national government should perform its wardship responsibility toward Indians as long as substantial numbers of them were not assimilated. The annual reports of the bia during the 1920s contain numerous statements of the forced assimilation theory, such as the assertion in the 1921 commissioner’s report that the “general course” of governmental policy was based on the allotment to individual Indians of “freeholds in severalty, with the aim of inducing by this transfer of tribal to individual holdings a departure from old communal traits and customs to self-dependent conditions and to a democratic conception of the civilization with which the Indian must be assimilated if he is to survive.” 22 In 1923 Commissioner Burke contributed a foreword to a book on Indian policy reflecting the viewpoint of Protestant missionaries working with Indians. The author of the book, Rev. G. E. E. Lindquist, had written that the nation had gone through three periods of Indian policy: “Extermination, Concentration, Assimilation. . . . Under the last, gratifying progress has been made along material, mental and spiritual lines, and it is unbelievable that there will be any return to the older ‘policies.’” Burke described the “present policy” of assimilation:

Indian Self-Government and the National Government During the 1920s

11

Practically all our work for the civilization of the Indian has become educational: teaching the language he must of necessity adopt, the academic knowledge essential to ordinary business transactions, the common arts and crafts of the home and field, how to provide a settled dwelling and elevate its domestic quality, how to get well when he is sick and how to stay well, how to make the best use of his land and the water accessible to it, how to raise the right kind of live-stock, how to work for a living, save money and start a bank account, how to want something he can call his own, a material possession with the happiness and comforts of family life and a pride in the prosperity of his children; teaching him to see the future as a new era and one inevitably different from his past, in which individual ambition, unaided by the show and trappings of ancient custom, must contend with the complexities and competition of a modern world. In an interview with a writer in the same year, Burke put it more succinctly: “I believe in making the Indian take his chance, just the same as white folks do.” 23 This view, of course, took it for granted that Indians were still “savages” lacking even the most fundamental knowledge necessary for “civilized” life; they could not even take care of their own health or housing and knew no “arts and crafts” of value. In a magazine article published in 1924, Secretary Work wrote, The instrument of guardianship prolonged into adult life of white or red man, dwarfs the initiative of imagination and breeds helplessness, while doles develop mendicancy. Thoughtful people know that without thrift there can be no substantial character development in man of any race, and also that communism paralyzes industry. How then to encourage individual industry, thrift and responsibility, the three graces of self-respect, is our fundamental problem.24 Although several case histories of the actual treatment of Native American governments by the bia during the 1920s are mentioned here, it should be kept in mind in this and following chapters that only a small portion of events that determined the actual interaction of bia officials with Indian governments at the reservation level can be documented from records in the National Archives Building, because most of what transpired occurred at the reservation level. The number of employees of the Bureau actually working in Washington during this period was around two hundred, while the rest of the approximately six thousand employees of this agency were field-workers. Moreover, almost all the Indians lived west of the Mississippi, far from the national office.

12

A Fateful Time

These facts are of special significance because the Bureau was organized on an agency basis. I had assumed initially that it would be easy to find Bureau and Interior Department files outlining the general policies followed in this and other areas, but quickly learned that there were no such files. In order to investigate Bureau actions toward Indian governments one must consult the individual agency records that made it to Washington and were preserved. Obviously no complete study of all of these files was attempted for this work. Some actions of the national government, during the Burke years, that bore directly on Indian self-government conform with what would be anticipated on the basis of the forced assimilation ideology: The organization of governments desired by the Indians themselves was discouraged. Two examples from documents in the National Archives illustrate this. In 1921 the White House sent to Secretary of the Interior Albert B. Fall a letter and petition from the Rappahannock Indian Association. The petition asked for government recognition of tribal and intertribal councils and for the creation of an elected national intertribal council, representing all tribes, to present Indian views to Congress.25 The reply of Secretary Fall stated his disapproval of the idea of recognizing and fostering “tribal and inter-tribal organization.” He said that “it has long been the policy of the Indian Bureau to eliminate tribal government and much of the old tribal customs and social conditions, and to fit the Indians as rapidly as possible by education and industrial direction for self-support simply as American citizens.” The secretary stated that individual Indians had no difficulty in making their views known to the Bureau of Indian Affairs and to Congress and that “Indians may . . . convene in council on their reservations.” They also, he said, “frequently visit Washington to take up matters personally with the Indian Bureau.” The reference to temporary councils in this letter is illustrated by voluminous documents in the National Archives recording many councils of Sioux Indians during the 1920s to deal with claims that the Black Hills and other parts of their homeland had been taken from them illegally. The attempt to secure return of the Black Hills still continues, although the Sioux have been awarded money damages for treaty violations. During the 1920s, there were many councils at various locations within aboriginal Sioux country in the successful attempt to get Congress to pass a special jurisdictional act permitting a suit against the government on this issue and to work with attorneys on the outlines of such a suit. In 1863 Congress had denied Indians the right to sue the United States through the new Court of Claims. Not until 1920 did Indian nations begin to sue the federal government by securing specific congressional statutes allowing such suits. One of these was a 1920 law authorizing suit by

Indian Self-Government and the National Government During the 1920s

13

Sioux Indians against the United States, which they eventually lost in the Court of Claims in 1942.26 At one stage of this process there was an attempt to organize a government for the entire Sioux Nation, which had been divided by the creation of various reservations within their country during the nineteenth century. The bia refused this request, on the ground that the U.S. government did not believe in letting Indians organize. In this instance, also, there were reports from various superintendents of Sioux reservations clearly displaying hostility at the local level as well against organization of new Indian governments. These replies were firmly rooted in the forced assimilation theory. In 1921, a group of Sioux Indians proposed creation of a “Great Council of the Dakota Nation.” They submitted a draft constitution and bylaws to Commissioner Burke through South Dakota Representative William Williamson, a member of the Indian Affairs Committee. The constitution proposed that delegates be elected by “adult male members” of the Pine Ridge, Rosebud, Lower Brule, Santee, Crow Creek, Cheyenne River, and Standing Rock Reservations, which together were referred to as “the Great Sioux nation.” Perhaps because Representative Williamson had said that “it strikes me that the idea is a good one and that the Indians should be encouraged in effecting this organization,” Commissioner Burke solicited the opinions of the various superintendents of these reservations before replying to the letter.27 All seven superintendents opposed the suggestion and most stated hostility to the idea that Indians should be represented by their own organizations. A major theme of the replies was that the Indians involved already spent too much time in local councils and would be much better off if they would spend more time working on their individual farms. For example, the superintendent of the Lower Brule Reservation wrote Commissioner Burke that “there is not a head of a family among the Sioux who does not have some of the best land in the state he lives in and other means such as treaty benefits and heirship money to put him on the high road to a financial success and the very fact that he leaves this to attend such meetings as is proposed is just why he has nothing for himself and family.” Another superintendent thought that the new organization would be difficult to control, suggesting that the device of a temporary council, “organized and meeting at the call of the Commissioner, should be all that is necessary to handle the Black Hills matter or anything else which is of particular interest to the Sioux Nation.” Another suggested that the council would probably be dominated by “demagogues” rather than the “better class of Indians and those who have truly progressed toward where we want them to go [and who] never attend councils.”

14

A Fateful Time

Partly on the basis of these replies, Burke wrote Representative Williamson on September 18, 1921, that he doubted “if there is any sound or practical reason for encouraging the proposed Great Council of the Dakota Nation.” In giving his reasons for reaching this conclusion, he repeated the arguments he had heard from the superintendents, beginning with the assertion that Indians “have their tribal councils under authority of this Office for all ordinary and local transactions.” He also claimed that the temporary councils had worked well to let the Sioux pursue their claims. Moreover, he clearly expressed the general hostility toward Indian government that was part of the forced assimilation ideology, stating that “it is not desirable or consistent with the general welfare to promote . . . [the Indian’s] tribal characteristics and organization. What he needs most is individualization and a dissolution of tribal relations, in order to become assimilable and self-supporting in American life.” Possibly Burke had other, unstated reasons for acting as he did; indeed, the incident as related here does not reflect its context in the complex pattern of relations between the Sioux and the federal government. Whatever Burke’s reasons, his response to Williamson illustrates a fundamental view toward Indian governments that was prevalent in the 1920s. Another sample of the hostile attitude of the Burke administration toward Indian self-governance occurred in 1926, when the administration made a strong effort to get the Congress to pass laws outlawing Indian custom marriages, legalizing the Courts of Indian Offenses that had been established without statutory authority on some reservations, and greatly extending the reach of national and state civil and criminal laws over reservations. For several months—from February 13 to May 20, 1926 —the House Committee on Indian Affairs held hearings on h.r. 7826, which had been introduced by Chairman Scott Leavitt of Montana at the request of Secretary of the Interior Hubert Work.28 The administration, responding to complaints from missionaries of alleged immoral practices on various reservations, had first tried by administrative action to outlaw marriages conducted solely according to Native American customs, but had been told by its legal staff that this could not be done without a change in the law. h.r. 7826 flatly declared that “Indian custom marriage and divorce are hereby abolished from and after one year from the date of approval of this Act and thereafter Indians shall comply with the marriage and divorce laws of the State within which they reside.” Marriages of reservation Indians that had taken place before passage were to be still valid.29 But the bill went far beyond this issue. For one thing, it legalized the Courts of Indian Offenses. These institutions lacked specific statutory authority, although the commissioner of Indian Affairs had issued regulations governing their organization in 1883 and Congress had appropriated money for them

Indian Self-Government and the National Government During the 1920s

15

since 1888. Courts of Indian Offenses did not exist on every reservation; but where they did, they were appointed by and responsible to agents or superintendents, although the judges (and the police who also usually were appointed at the same time) were usually Indians. These “courts” administered rules promulgated by the agents or superintendents and were instruments of administration more than true courts. The bill to legalize them provided that “the reservation courts of Indian offenses shall have jurisdiction, under rules and regulations prescribed by the Secretary of the Interior, over offenses committed by Indians on Indian reservations, for which no punishment is provided by Federal law; Provided, That any one sentence of said courts shall not exceed six months’ imprisonment or labor or a fine of $100 or both.” 30 The third major provision of h.r. 7826 was a sweeping extension of national law over Indians. As the law then stood, only the offenses specified in the Major Crimes Act applied to Indians on reservations. This bill proposed that “hereafter the civil and criminal laws of the United States shall apply to Indians, and the United States district and circuit courts shall have jurisdiction of crimes and misdemeanors or other violations of Federal statutes committed within Indian reservations by or against Indians.” Precisely what laws would have been extended to Indians without their consent is not clear—national criminal law was quite restricted at that time—but obviously the measure would have substantially increased the scope of both civil and criminal law applying to Indians, thus superseding traditional Native American law. The 1926 “law and order” bill did not become law; it was opposed by various Indian and non-Indian opponents as unconstitutional as well as imprudent. Nevertheless, it demonstrated the existence of a significant body of opinion that held that the authority of most Indian governments was nearly or entirely gone. Even John Collier, the leader of the Indian reform movement at that time and later commissioner of Indian Affairs, subscribed to this view (see chap. 6). r e c o g n i t i o n o r o r g a n i z at i o n o f i n d i a n g ove r n me n t s In spite of the general hostility to the idea that Indians should be dealt with in a corporate capacity, in fact the Bureau of Indian Affairs in this period still did business in many cases with Indian governments. Commissioner Burke, as noted above, even asserted that many of these governments existed “under authority” of the Indian Office. Clearly, the bia did officially recognize some Indian governments during this period, although no overall policy stating the bases for such recognition and the procedures for bringing it about has been discovered. In other instances the bia itself organized or attempted to organize Indian governing structures. Some understanding of the reasons for the actual policy pursued by the

16

A Fateful Time

Bureau at the national level can be achieved by looking at aspects of the general situation facing it during the 1920s and several instances in which the national leadership of the Bureau brought about Indian organization or attempted to do so. First, many traditional Native American governments, perhaps most, still existed. These governments were authoritative to their members and in practice their existence could not be ignored completely by Bureau officials. No comprehensive listing of Indian governments during the 1920s for the entire nation is available, but the existence of many governments of this sort is obvious (see chap. 2). Another element in the situation is that the general hostility to Indian governments on the part of the bia did not always extend to “business councils,” a relatively new form of Indian government. In fact, the Bureau not infrequently encouraged organizations of this type. Undoubtedly the Bureau usually thought of business councils as something akin to chambers of commerce, for primarily business purposes, rather than as general-purpose governments, and this must have been a reason for favoring them. The actual role played in governance by these business councils no doubt varied from place to place and time to time. In some cases they probably competed with traditional governing structures for the authority to govern, in other cases they may have concerned themselves with questions not normally handled by Indian governments, and in other cases they probably provided at least the rudiments of governance in situations in which traditional structures had in fact broken down. In some instances, the bia clearly encouraged the creation of structures with the characteristics of general-purpose governments. If its objectives could be achieved more readily by encouraging or initiating such organizations, the Bureau often did so. Examination of several examples of such action by the Bureau can aid understanding of the role of the national government in relation to Indian self-government during the 1920s. The present government of the Navajo Nation, the largest Native American society on the largest reservation in the United States, was created by the bia during the 1920s. Before the mid-1920s, Navajo political organization was highly decentralized, as was Navajo society. After 1868 the Navajos lived primarily by herding— chiefly sheep and goats—supplemented by a little hunting, such limited agriculture as was possible in their arid environment, and sale of woolen rugs or blankets or silver jewelry. They were spread in small familybased groups over a very large territory, comprising reservation and nonreservation lands; nothing like villages or towns existed for many decades.31 There was no decision-making structure at the level of the Navajo Nation as a whole. Anthropologist Mary Shepardson has stated that the Navajo Nation

Indian Self-Government and the National Government During the 1920s

17

was not “a corporate group; it was never centralized nor organized as a unit, but rather represented a community of language and culture shared by a people who occupied a common territory. . . . Common speech and customs, widespread linkages through marriage induced by clan exogamy, and shared religious practices formed the basis for cohesion. . . . Anthropologists at present agree that the Navajo tribe was traditionally not a political unit.” 32 Complex decision-making structures existed, but at the local level. “The locus of authority was in the various functional groups, the biological family, the extended family, the outfit, the local group, the raiding party, the hunting party, and the ceremonial gathering. . . . The highest authority lay in the agreement achieved within the group after matters had been ‘talked over.’” Leaders within this decentralized structure were persons with specialized knowledge or skills and/or persons whose advice was given great weight because of the respect in which they were held.33 This pattern had been the traditional one among the Dine, their name for themselves; it had existed for the hundreds of years during which the nation had inhabited its Southwestern homeland. After the defeat of the Navajos by the United States and their return from exile in Fort Sumner in 1868 the pattern remained essentially the same, although during the period of active conflict with the United States temporary decision-making structures apparently developed. Often, local agents of the Bureau introduced a significant change: “The early Navajo Agents needed some form of political organization for communication with the wide-ranging tribe, and so instituted the appointment of a headman or chief.” 34 This was still a decentralized system, however; no attempt was made to appoint an overall chief for all Navajos. Moreover, the Bureau’s own structure for dealing with the Navajos was also decentralized. Between 1901 and 1908, for example, the large Navajo Reservation was divided in several stages into six agencies (including the Hopi Agency), and this system remained until the centralization introduced by the Collier administration in the 1930s.35 The relation of the appointed headman system to the actual local governing structure is difficult to characterize, because of lack of information and because undoubtedly there was substantial variation from time to time and location to location. Clearly the system had been initiated by the national government to serve its purposes, yet it is also clear that the headman in practice “represented his people to the Agent, and in turn the Agent to his people, on matters of yearly rations, law enforcement, and Indian Office programs.” The degree of control exercised by each party no doubt depended in part on the personal characteristics of the headmen and the government officials. However, it also depended on the extent to which headmen were parts of the local

18

A Fateful Time

decision-making structure. As Shepardson put it, “In some cases the appointment of a headman only confirmed de facto leadership; in some cases Government recognition destroyed the prestige of an informal local leader. Recalcitrant headmen were either ignored or replaced.” 36 During the 1920s the Bureau changed this structure in two ways, both of which were elements in the later Navajo Nation government that evolved from these beginnings. First, the Bureau created a decision-making structure for the entire nation. Second, it modified the headman system to introduce the principle that local leaders were elected and to establish new local political units. Chee Dodge, the first chairman of the Navajo Tribal Council and an important leader among his people for decades, wrote in a 1928 letter that he had sometime earlier suggested the creation of the tribal council (although when he wrote the letter he had come to the conclusion that the council should be abolished). Perhaps this is correct, but records in the National Archives make it clear that the Bureau took the initiative to organize the council to meet a problem it had encountered, not to respond to Navajo desires.37 According to Herbert J. Hagerman, the organizer of the council, the reason the Bureau saw for taking this step was “the necessity of organizing the Tribe in order to legally lease their oil lands.” 38 In 1921, oil companies requested permission to prospect on the Navajo reservations. Oil was found, and there was then pressure to lease the land and remove the oil. Under the 1891 statute (mentioned above), as interpreted by the attorneys for the Bureau, the consent of the Indians was required before the land could be leased. Initially the superintendent of the San Juan Agency called local councils to approve oil leasing. From May 7, 1921, until the organization of the tribe in 1922 –1923, several such local councils were held.39 The councils called by the San Juan superintendent were somewhat hostile to the requests for approval of oil leases, and Commissioner Burke may have felt that a wider council would be more receptive to such leases. He said that he wanted a wider council because he thought the revenues from the leases should go to all the tribe, not just part of it. Perhaps Burke was aware of Chee Dodge’s suggestion for the creation of a wider council. Although a complete account of his thinking is not available, Burke in 1922 appointed a “business council” consisting of Chee Dodge and two other Navajos to act on behalf of the entire nation when dealing with oil leases.40 A few months later, in January 1923, Commissioner Burke issued regulations that (after revision) provided for the creation of an elective Navajo Tribal Council. At the same time, he named Hagerman, a former territorial governor of New Mexico, to be a special commissioner to the Navajos. For the rest of the 1920s, Hagerman called and opened council meetings and generally attempted to guide the new body in the directions desired by the bia.41

Indian Self-Government and the National Government During the 1920s

19

Delegates and alternates to the council were elected by the Navajos within each agency, although the chairman was elected by the council itself. A secretary was also elected and was required by the regulations to be a member of the tribe who was not a member of the council. This body functioned as the first overall government of the Navajos and has evolved into the present tribal council. During the Indian New Deal, the bia attempted to persuade the Navajos to adopt a written constitution to provide a basis for the tribal council, but they have refused to take this step. The 1920s secretarial regulations are no longer the basis for Navajo government, but the practices that began with these regulations, modified over several decades, are still followed in the Navajo Nation. They have acquired constitutional status in the same sense in which the government of Great Britain has such status; no written document is required for a constitution to exist.42 During the 1920s, the Navajo Tribal Council had very limited functions. It met only on call of Commissioner Hagerman (who secured the permission of the commissioner of Indian Affairs), it met infrequently, and it met briefly. Usually it was convened for only one or two days a year; from 1923 through 1929 it was in session for a total of ten days.43 Since a great deal of the time of the council was taken up in translating between Navajo and English, there could not have been much time to consider the many problems of the nation or to devise significant solutions for them. Moreover, during the early years Commissioner Hagerman set the agenda and took up most of the time of the Tribal Council with presentations of government policy; he also sometimes brought other government officials to make presentations. Obviously, under these conditions the council could not have been very effective on behalf of Navajos; but even with these limitations, it is clear from the minutes of the council that the delegates did bring up various matters and present complaints from their constituents. It would be unrealistic, however, to describe the Navajo Tribal Council at this time as a fully developed government. Another step in creating the current pattern of political organization among the Navajos was also taken on the initiative of the bia during the 1920s, although at the agency rather than the tribal level. The first meeting of what came to be known as a chapter was convened by Superintendent John G. Hunter of the Leupp Agency in 1927. His reason for calling this meeting, as he recalled in 1961, was that “I became aware that we [Bureau of Indian Affairs personnel] were not reaching Navajos . . . and I thought that if I could organize them into community meetings, we could tell them of our programs and we could find out what they wanted.” In 1928, after he was transferred to the Southern Navajo Agency, Hunter organized chapters there as well. The number of chapters increased rapidly until there were around eighty in 1937,

20

A Fateful Time

although there was a decline after that date until World War II. At first there was no link between the chapters and the tribal council, but by 1936 the chapters had become the basis for electing council members, and this practice has continued to the present.44 During the 1920s, then, the bia took the first steps that have evolved into the present governing structure of the Navajo Nation, even though the top administrators in the national government charged with carrying out Indian policy believed that they should not be dealing with governments but with Indian individuals. It appears that there were several reasons for Bureau action in the Navajo case, the most important of which was the legal requirement that some kind of Navajo council had to approve leases before oil found on the reservation could be tapped by non-Indian companies. But the decisions to establish a Navajo-wide organization and chapter councils appear to have been influenced by the Bureau’s perceived need to have more effective channels of reaching individual Indians with the messages this agency wished to present to them and, to a much smaller extent, to have a more efficient means of hearing from Navajos about their needs. Another Burke administration action to create an Indian government arose out of a desire to override an existing governing institution. The Flathead Reservation in Montana is one of the reservations where members of several societies were brought together by earlier national government policy. In this circumstance, a traditional government of the entire reservation would have been very difficult to create. There were several chiefs of the various tribes living on the reservation who later, in the constitution adopted during the 1930s, were given formal roles in the governance of the reservation. Whether any multi-group government at the reservation level had existed earlier is not known, but in 1916 a general council of Flathead Reservation members elected a tribal council. In 1929 Caville Dupuis, the president of the council at that time, told a U.S. Senate committee that the council consisted of thirty-three delegates elected from districts and three traditional chiefs, whose authority was unclear. Delegates and the officers of the council were elected at general councils held irregularly, for indefinite terms of office. In 1929, Dupuis said that he had been president for about six years. Another resident of the reservation, Marie Lemery, confirmed this account. The Flathead superintendent, Charles E. Coe, agreed at the same hearing that “this tribal council has been in existence since 1916.” He also said that it had “had practically the same members since 1916.” 45 In the 1920s a dispute arose at Flathead over proposals to build a dam on the reservation to produce electricity. In late 1926 and early 1927, the Rocky Mountain Power Company, a subsidiary of the Montana Power Company, worked with Commissioner Burke and Assistant Commissioner Meritt to

Indian Self-Government and the National Government During the 1920s

21

apply for a permit to develop a hydroelectric facility on the reservation. Burke and Meritt did not consult with the Indians of the reservation, either through the tribal council or by any other means, before supporting issuance of the permit for the facility.46 The Flathead Tribal Council vigorously opposed the permit and the building of a dam that would flood reservation lands. It hired as its attorney Albert A. Grorud, who subsequently became the chief staff person for the Senate Committee on Indian Affairs. John Collier, as head of the American Indian Defense Association, took up the cause of the Flathead Council. When a rival proposal to develop the dam was made by Walter H. Wheeler of Milwaukee, the tribal council and a general council called by it backed the Wheeler proposal and accused the bia of attempting to steal the property of the Flathead Indians and ignore their right to govern themselves. Collier’s organization supported these allegations; it specifically attacked the Bureau for approving plans for hydroelectric development without ascertaining Indian opinion and for refusing to reconsider its action after the tribal government of the reservation, backed by another general council, had clearly registered its disapproval of the Bureau’s action.47 In response, Superintendent Coe sought means to provide evidence that Flathead Indians approved of the Montana Power Company proposal. In late 1927 he encouraged a group of Flathead Indians to circulate a petition in favor of this proposal. In reporting this action to the Indian Office, he attacked the Tribal Council, saying that “the so-called tribal council is not an elected council but a self constituted and self prepetuated [sic] one. It has not really represented the wishes of a majority of the Indians for a long time.” 48 Coe then indicated that the committee circulating petitions planned to form a “regularly elected ‘Tribal Council’ as soon as they have finished with petitions.” He said that the plan was to draw up a set of by-laws calling for an annually elected council, and added, “A Tribal Council so formed could be recognized as a representative and legally constituted body. The influence of Mr. Grorud would be removed and there would be no further ‘Resolutions’ of the Tribal Council for him to use in his activities in Washington.” 49 On May 25, 1929, Commissioner Burke instructed Coe to proceed with organizing a tribal council. A Bureau circular earlier that year had asked for information on business committees on reservations, and Coe’s reply had indicated that there was no such organization on the Flathead Reservation. Burke wrote to Coe, “Referring to your answer to Circular 2565, it is observed that there has been no regular election of council members for some time; that there appears to be no constitution and by-laws approved by this Department governing their election, term of office, duties, etc., and that the Indians of the reservation have not been properly represented by districts or other regular method.” 50

22

A Fateful Time

Burke then instructed Coe to “assist the Indians of your reservation in drafting a suitable constitution and by-laws to govern the election and operation of such a representative business committee and submit same here for consideration and approval before submitting same to the general council of Indians.” 51 The commissioner enclosed copies of constitutions and by-laws of the Blackfeet and Crow Tribes and the Pine Ridge Reservation to assist Coe and gave him explicit instructions on features to include in the constitution. Coe went ahead with plans to organize the new tribal council, obviously with the hope that it would approve the Montana Power Company plans.52 This series of events on the Flathead Reservation illuminates the attitude of the bia toward tribal governments. First, the efforts to form a new tribal council clearly came about because the existing tribal council opposed Bureau policy. The charge made by Senator Burton K. Wheeler of Montana at a Senate committee hearing that “if Burke had his way he would have squelched every tribal council in the United States” was too sweeping in general, but in this instance the characterization was not inaccurate.53 Second, as in the Navajo case, the crucial element behind the Bureau’s efforts to organize a tribal government to replace an existing structure involved the exploitation of reservation resources. Partly because there were no legal restraints in this instance, the Bureau acted without any attempt to secure the consent of the Indians of the reservation and refused to accept the existing tribal council as legitimate. Third, there was a difference of opinion about whether the existing tribal council had received “recognition” from the Indian Office. In the 1920s the bia followed an unwritten policy of granting recognition to Indian governments of which it approved, but in the absence of clear and stated criteria for doing so it no doubt acted at times in an arbitrary manner that overrode Indian desires. More important, in the absence of explicit criteria for taking such action, it could not always be ascertained whether the Bureau had actually extended recognition. Note that in the instructions to Superintendent Coe, Burke had written that “there appears to be no constitution and by-laws approved by this Department.” A resolution adopted on February 24, 1930, by the Flathead Tribal Council (the group whose status was in question) asserted that “it is of record and accepted by the Commissioner of Indian Affairs that the Flathead Tribal Council is the authorized body of the tribe.” 54 Also, as noted earlier, Coe had once confirmed the existence of the council without expressing any doubts about its authority. In the absence of precise, documented procedures for extending recognition, confusion on this important question was inevitable and gave Bureau employees opportunities to ignore Indian governments that did not agree with Bureau policy.

Indian Self-Government and the National Government During the 1920s

23

A similar case, although not involving resources, also illustrates that the bia during the 1920s sometimes tried to organize Indian governments in order to counter the impact of existing governments opposing its policies. Several conflicts involving the New Mexico Pueblos erupted in the 1920s; John Collier began his work for the Indians because of one of these. The eighteen Eastern Pueblos in this state, mostly located along the Rio Grande, had for centuries cultivated irrigated fields while living in compact villages. Their ceremonial/religious life was rich and complex, and they had evolved a pattern of governance with unique features (see below). Under Spanish, Mexican, and American rule they had retained their cultural distinctiveness to a high degree. In part because of their settled agricultural life and in part because of their unique institutions, the U.S. Supreme Court did not declare until 1913, in the Sandoval case, that the members of the Pueblos were legally Indians. An important effect of this decision was that henceforth the Pueblo lands, which had been held in fee simple, were extended the protection of trust status. By the early 1920s many non-Indians had acquired title to lands within various Pueblos, and there were numerous unresolved claims to ownership of lands and related water rights within a number of Pueblos. The Sandoval decision had required the national government to take legal action to evict non-Indian claimants in these disputes. Pueblo attorney Richard H. Hanna did file ejectment suits in 1919 but thereafter the issue was moved to Congress, where it became entangled with the issue of extending national criminal jurisdiction over the Pueblos.55 Members of the New Mexico delegation made various proposals to award the disputed lands to non-Indians or to settle the issue through a judicial or quasi-judicial proceeding. By July 1922, a legislative proposal called the Bursum bill, after New Mexico senator Holm O. Bursum, had been approved by Interior Secretary Fall, Commissioner Burke, and the attorney for the non-Indian claimants. Fall was a former New Mexico senator who was strongly committed to opening up national lands in New Mexico to various types of non-Indian development. The Bursum bill advocated an approach that would have had the effect of awarding most of the disputed lands to the non-Indian claimants.56 Various Pueblos had opposed earlier efforts along this line, and now they had supporters in their effort to defeat the bill. Stella M. Atwood, who had secured the creation of an Indian Welfare Committee by the General Federation of Women’s Clubs, began vigorous protests against the Bursum bill. John Collier undertook his first work for Indians as “research agent” for the federation.57 The struggle over the Bursum bill led also to the establishment of the AllPueblo Council. Inter-Pueblo cooperation goes all the way back to the Pueblo

24

A Fateful Time

Revolt of 1680, and there had been irregular ad hoc meetings of representatives of all or most Pueblos for some time before the 1920s. Pablo Abeita of Isleta Pueblo referred at the 1929 meeting of the All-Pueblo Council to a number of such meetings, including one thirty-five years earlier to resolve a dispute between San Felipe and Santo Domingo.58 The meeting of the All-Pueblo Council at Santo Domingo in November 1922 led to vigorous efforts in opposition to the Bursum bill, partly because Collier was there and offered his help. It also began a continuous and evolving existence of this coordinating group extending to the present. Members from several Pueblos traveled to Chicago, New York, and Washington to speak against the Bursum bill, and Collier led a coalition of Indian and non-Indian reformers to defeat it, in the first major muckraking effort of the 1920s Indian reform movement. The effort was effective, although the Pueblos eventually had to compromise on the issue. The Senate took the unusual step of recalling the Bursum bill after initially passing it; eventually, in June 1924, a bill acceptable to the Pueblos was signed into law. A Pueblo Lands Board was established to decide the validity of the disputed claims and award damages if necessary. While the board did not complete its work until the 1930s, and in order to provide the expected benefits to the Pueblos it was necessary to pass a new act in 1933, eventually there was a substantial restoration of land and water rights to various Pueblos and they were awarded money damages for rights not restored.59 Also, efforts during the 1920s to extend national legal jurisdiction over the Pueblos were defeated. The All-Pueblo Council continued to be active because several new issues of crucial importance to the Pueblos arose during the 1920s. One set arose out of extensive efforts by Commissioner Burke to outlaw aspects of Pueblo dances that some missionaries, supported by the Indian Rights Association, alleged were obscene and immoral. The Pueblos regarded these and similar actions as assaults on their ancient way of life. The commissioner threatened various enforcement actions if the Indians did not give up these practices, and he or superintendents in New Mexico actually took actions confirming the worst fears of the Pueblos. For example, in 1924 officials of Taos Pueblo were arrested, with the approval of Commissioner Burke, for withdrawing boys from the Bureau schools for religious instruction, and in 1925 Bureau officials caused the arrest of Taos officers after they had punished members of the peyote church within the Pueblo for what they perceived as violations of Pueblo law.60 Another set of issues grew out of attempts of the bia to override the judicial authority of Pueblo governments. Various Bureau officials perceived a decline in authority of the councils that governed the Pueblos and, therefore, a vacuum in enforcement of criminal law within these societies. Their solution to

Indian Self-Government and the National Government During the 1920s

25

this perceived problem was to attempt, in several ways, to make state and/or national laws operative within the Pueblos. In all of these instances, the All-Pueblo Council fought the Bureau, in cooperation with Collier and the American Indian Defense Association, which he founded. One of the Bureau’s responses to this opposition was to seek to organize a Pueblo group friendly to Bureau policies. For a time in 1924 the Bureau approved participation by its employees in a Council of Progressive Christian Indians. At the founding meeting of this group a small number of delegates, claiming to represent two thousand of the approximately ten thousand Pueblo Indians, adopted resolutions challenging traditional Pueblo governing practices. Nina Otero Warren, a Bureau inspector who had attended this meeting, urged Commissioner Burke to support the group, alleging that “these people . . . are at this time the only loyal Pueblos we have, opposed to the large Collier group.” The council was short-lived; Mrs. Warren was relieved of her duties in December 1924, and by the fall of 1925 “the cause of the progressive Pueblos was dead.” 61 However, in 1926 the Bureau took the initiative to organize what became the United States Pueblo Council. This, like the All-Pueblo Council, was a meeting of representatives from each Pueblo, but the government called the meetings of the U.S. Pueblo Council and tried to control them. The suggestion for organizing this council came from Margaret McKittrick of the New Mexico Association on Indian Affairs. McKittrick and other members of this group had supported Collier and the All-Pueblo Council at the beginning of the battle over the Bursum bill. But in early 1923 there was a sharp controversy within the ranks of the opponents of the bill, resulting in a permanent schism between Collier and a group around McKittrick. The conflict arose when Francis Wilson, the attorney for the Pueblos, supported the Lenroot bill, an early attempt at compromise of the issue. Collier and the AllPueblo Council rejected Wilson’s action, and when Collier insisted on canceling Wilson’s contract over the incident, several members of the New Mexico Association became his opponents.62 In July 1926 McKittrick made a suggestion to Commissioner Burke that “the Government should organize an all Pueblo Council modelled on the council which Hagerman has so successfully worked out for the Navajos.” She said that such a council could be a useful way for the government to explain its policies to the Pueblo Indians and also that “such a Council would entirely do away with all of Collier’s influence in all of the Pueblos.” In August McKittrick wrote Hagerman on behalf of the New Mexico Association, making suggestions for the composition of such a council and proposing that it take up the question of what she saw as the law-and-order vacuum among the Pueblos. She wrote that “there is no one on the ground who has authority to maintain

26

A Fateful Time

law and order. The government of the villages which has hitherto rested on the moral power of the council and old men is fast breaking up.” 63 Hagerman responded to this request by writing various New Mexico Bureau officials for their views about the desirability of taking such a step. Several of these officials supported the idea, one of them remarking, “I believe that the All Pueblo Council, that might have an official status might be of advantage, and if official you, or some other representative of the government could be with them to direct, in a measure, their deliberations and action, and much superior to their unofficial juntas they now hold where they meet and talk without any guidance, or possibly that of the wrong kind.” Walter C. Cochrane, special attorney appointed by the government for the Pueblos, thought the idea of a government-sponsored council “splendid,” partly because he also perceived a growing governmental vacuum in the Pueblos, which meant that for most crimes “no competent court has jurisdiction.” He thought that “the breakdown of tribal authority . . . is having serious consequences, and something must be done to bolster up or replace the power the governor once wielded so effectively.” On September 6, 1926, Hagerman wrote a letter to Commissioner Burke, saying that he had concluded that the government should organize such a council, which “would go far toward clarifying various matters as to the status, duties, obligations and privileges of these people.” He also wrote that “while it is undoubtedly true that at such meetings the representatives of the Indians themselves would not offer much in the way of constructive suggestions as to legislation or governmental policies in connection with the administration of their affairs, it is I believe quite certain that the government’s representatives and others would be able to derive from these meetings a good deal of information which would be helpful in the formation of legislation and policies.” Hagerman suggested that the “unofficial” All-Pueblo Council had discussed a limited range of issues and that its meetings had resulted in confusion. He said that he believed “such confusion will increase unless official action of some kind is taken.” Hagerman made suggestions for the composition of such a council and the topics it might consider. On October 15, 1926, Burke wrote Hagerman that he was “requested to organize the Council and supervise its sessions, especially to see that its meetings are conducted properly, and that the subjects for discussion are restricted to certain topics, so that the Indians may not be confused by too many subjects.” Burke enclosed a set of rules for the composition of the council. Each Pueblo was to be represented by two delegates—the governor and a Pueblo member elected by the voters of the Pueblo. Where “factional differences” resulted in a situation where there were two governors, both were to be elected to the council. The governor was to cast the vote for the Pueblo but the other dele-

Indian Self-Government and the National Government During the 1920s

27

gate was to be allowed to participate in discussions. Hagerman was asked to call the council meetings, to preside over them, to appoint any committees that might develop, and to direct and supervise “the discussions and workings of the Council.” Before the scheduled first meeting of the new council, the All-Pueblo Council met, on October 6, at Santo Domingo. Collier commented that he had heard the government was planning an organization to “take the place of” the AllPueblo Council, and said that “if this plan should succeed, then your All Pueblo Council would be denounced as unauthorized and outlaw.” Collier suggested that the members of the All-Pueblo Council write down the rules that had previously governed it. The presidente of the council appointed a committee headed by Pablo Abeita of Isleta, and this committee produced a simple set of eight rules that was accepted by all Pueblo delegations present at the meeting. These rules, the first constitution of the group, provided that each Pueblo could be represented by as many delegates as it wished but could have only one vote. The council officers were to be elected by majority vote and would serve until the next election, and roll call votes were to be recorded on “all actions on any proposal,” with reasons for voting against a proposal recorded if the Pueblo(s) wished this to be done.64 The first government-sponsored all-Pueblo meeting was held November 15 –17, 1926, in Santa Fe. It was decided to call the group the United States Pueblo Council, to avoid confusion with the All-Pueblo Council. Hagerman presided and conducted the meetings, although on the last day a president of the council was elected. Most of the meeting was devoted to presentations by Hagerman and other Bureau officials. He asked the Indians their opinion on several issues, including the important question of whether changes were needed in the authority of Pueblo councils over law and order. On this question, Hagerman presented a resolution stating that governors should be given the “powers of a justice of the peace and police magistrate.” When several delegates stated that they could not speak for their Pueblos before the councils had discussed the question, Hagerman agreed to submit the proposal in writing to all Pueblos and to postpone a decision on it.65 Hagerman told the U.S. Pueblo Council that this was an “official” meeting and that the government would pay more attention to their needs if they were expressed in an “official” way. However, when he was asked by a delegate from Taos whether the government wanted them to abandon the council they had been using since 1922, Hagerman said that this was not the intention of the government and that the All-Pueblo Council had “been beneficial, and helped you, and helped us.” Several government officials reported enthusiastically after this first meeting that it had been a success, but clearly the Pueblo leaders saw no need for it

28

A Fateful Time

and had no intention of abandoning their own council for the new group. At a meeting of the All-Pueblo Council in December 1926 and again in 1929, the Pueblos asked that the U.S. Pueblo Council be disbanded. The Burke administration was unwilling to do this, and a number of meetings of the U.S. Pueblo Council were held over a period of several years. Clearly, however, the establishment of the new group did not have the effect of weakening or supplanting the previous group, which the Pueblos themselves had organized. The AllPueblo Council went on to expand its activities, and it also continued to cooperate with Collier, who was clearly in tune with their wishes. At the December 1926 meeting of the All-Pueblo Council, in response to the request for an endorsement of the law-and-order proposals of the bia, a resolution was approved by all Pueblos represented, with two abstentions. This resolution advised each Pueblo to reply to Hagerman “that we don’t want the law which you asked us about and our reasons are explained by our endorsement of Bill H. R. 9315”—the alternative to the administration bill that was then being considered by Congress (see below). Representatives of a number of Pueblos approved a longer statement objecting to the government’s lawand-order proposals on the ground that governors and councils already had, and exercised, the authority to settle disputes and punish offenses against Pueblo laws. The Navajo Tribal Council organized by Hagerman lasted and gained the support of Navajos, no doubt in part because at the time of its formation there was no other governing structure at the level of the nation. The U.S. Pueblo Council did not last and did not gain Pueblo support because it was an attempt to supplant or overshadow an existing structure that had been brought into being by the Pueblos themselves. One final case study of the attitudes of the bia toward tribal governments during the 1920s illustrates another set of circumstances that sometimes led the Bureau to recognize Indian governments. Where there were two groups, both claiming to be the legitimate government of a society, the Bureau sometimes intervened, on an ad hoc basis, to try to settle the controversy. While he was attending the meeting of the U.S. Pueblo Council in 1927, Assistant Commissioner Meritt visited Santa Clara Pueblo with the superintendent of the Northern Pueblo Agency and the district superintendent. While there, Meritt attempted to solve a long-standing factional conflict within the Pueblo. Santa Clara was one of a group of Pueblos in northern New Mexico in which Tewa was spoken. Like other eastern Pueblos, it had traditionally had a complex governmental structure featuring ultimate control by religious leaders. All of the members of Santa Clara Pueblo belonged to either the Summer or Winter Moiety. Traditionally, a set of secular officials (a governor, two lieu-

Indian Self-Government and the National Government During the 1920s

29

tenant governors, and a sheriff) had been elected annually in the Pueblo. Prior to 1894 the secular officials had been selected in fact by the caciques, the religious leaders of each moiety, who alternated in nominating a single slate of candidates for office. There were two other sets of officials—war captains and officials of the Catholic Church— chosen in the same way, but it is not clear whether these officials were involved in the factional dispute. A council of principales consisted of all three categories of elected officials as well as former governors. In addition to their roles in alternately selecting the secular leaders of the Pueblo, the caciques also directed, again on an alternating seasonal basis, the ceremonial dances and other religious activities and other responsibilities within the Pueblo.66 During the 1890s a severe factional conflict erupted at Santa Clara. A socalled progressive faction developed within the Winter Moiety, while a conservative faction comprised the Summer Moiety and part of the Winter Moiety. According to Nancy S. Arnon and W. W. Hill, “Each side made similar claims: each professed to observe traditional ways; each accused the other of nonconformity; each, when in seasonal control of government, forced all members of the opposite moiety to participate in ceremonials.” 67 Yet it seems that the chief basis of the schism was that the progressives advocated views that were clearly at variance with beliefs and practices that had been the basis of Pueblo life for many centuries. Edward P. Dozier, an anthropologist who was also a member of Santa Clara Pueblo, described the viewpoints of the progressives. They advocated a separation of religion from secular activities, but in particular they objected to the right of pueblo officials to designate the date on which everyone should plant and harvest. . . . Work on irrigation canals, they maintained, should be compulsory only for families owning lands irrigated by such a canal, and participation in ceremonial should be voluntary rather than imposed by the pueblo. They insisted on the right to wear Western type clothes and to cut their hair in the “Spanish” or “American” fashion. They protested the right of the leaders to limit or restrict their absences from the pueblo. . . . They objected to the right of the pueblo officials to demand their services in repairing kivas and other essentially religious projects if they no longer believed in the native religion. They protested the rule of the pueblo that all able-bodied men, women, and children should have to work on community projects.68 In earlier times, this issue might have been settled by the voluntary or forced departure of the dissident members of the Pueblo, but by the 1890s there was no land where a new village could be established. In 1894 the governor who had been chosen by the Summer Moiety (the conservative faction) refused to

30

A Fateful Time

turn over the ceremonial canes, which had been given the Pueblo by Spanish and Mexican officials and President Lincoln, and thus relinquish his office to the person nominated by the cacique of the Winter Moiety.69 Thereafter until 1935, when a constitution drawn up under the Indian Reorganization Act was adopted, the traditional alternations of officials did not take place, and there was conflict within the Pueblo over the legitimacy of the secular officers. The Bureau of Indian Affairs recognized the officials chosen by the Summer Moiety but knew that the factional dispute continued. The result was “the breakdown of community co-operation. . . . From 1894 to 1935 only the Summer Moiety appointed the important secular officers, and the members of that moiety alone attempted to carry out, albeit in somewhat irregular and ineffective fashion, the co-operative ceremonies which play such an important part in pueblo life.” 70 Meritt, aware of this fundamental division, attempted to solve the problem by personal fiat on his visit to Santa Clara in October 1927. Saying that he had been asked by Interior Secretary Work and Commissioner Burke to represent them, he listened to members speaking for both factions, including both individuals claiming at the time to be the rightful governor. At the end of this meeting he issued a document embodying his “decisions” on the conflict. Basically, he attempted to impose majority rule instead of the traditional alternation between candidates chosen by the caciques. Specifically, Meritt “ruled” that each clan known as the summer or winter clan shall select its own candidate in its own way. I will not attempt to decide as to how you shall select your candidate, but will leave that to the summer and winter clan with the distinct understanding that there shall be only one candidate representing each clan. My decision is that there shall be an election each year the latter part of December on such date as the two clans shall agree upon. On this election date the candidate receiving the highest number of votes shall be declared to be the governor of the pueblo for the ensuing year. The man receiving the next highest number of votes shall be declared to be the lieutenant-governor for the ensuing year. There must be authority vested in one official in a government of this kind as to who shall be the other officers for the ensuing year. My advice is that the governor should confer with the lieutenant-governor and get his advice as to who should fill the other offices. But the final authority will be with the governor who has received the majority of the votes cast of all the adult males of the pueblo.71 Although he denied that the national government had any “intention of interfering with your form of Pueblo government,” Meritt admonished the resi-

Indian Self-Government and the National Government During the 1920s

31

dents of Santa Clara to “bear in mind the importance of the rule of majority in our democratic form of government and abide by that decision.” Accepting such a rule, of course, would have meant a major departure from their traditional governing patterns. He also made a “ruling” on the question of whether everyone should be required to participate in ceremonial activities. He supported the progressive position on this issue, concluding that “we will not require any member of the pueblo who does not care to participate in any custom, ceremonial or dance to participate therein unless they so desire, and no governor or any other official of the pueblo shall have authority to compel them to do so. In other words, it should rest upon the individual action. . . . That is the principle of freedom of action which we all so cherish under our American form of government.” Apparently Meritt thought he had secured the consent of all present at the meeting to his “decisions”; the document embodying them was typed and signed by Bureau officials and by both current claimants to the title of governor, and an impressive seal and two ribbons adorn it. But this action solved nothing. A year later Meritt visited Santa Clara again, discovered that the factional dispute was still dividing the Pueblo, and told the residents, “Now what I want you to do is to agree to abide by the decision of last year, and after you live up to this agreement for a period of one year, if you find that there are things in this agreement that are not satisfactory to you we can have another meeting a year from now and we will try to adjust the differences.” 72 However, no one present at the meeting at which he made this request stated unequivocally that they would try to observe the “decision” of the previous year. One of them, who had been designated as governor by one of the moieties the previous year, said that he had tried to carry out the election prescribed in the document but had not received the necessary cooperation. Not surprisingly, progressive leaders were more supportive of Meritt’s proposals than conservative leaders. In frustration, Meritt tried various arguments to get the residents of Santa Clara to accept his attempted resolution of their conflict. He argued that it was the “patriotic duty” of members of the Pueblo to adhere to the agreement and that Santa Clara would be faced with “revolution” if the problem were not resolved. He combined these arguments with promises and threats, telling the Santa Clarans, “If you have one governor in this pueblo recognized by all the Indians he can speak for your pueblo and we will be in a position to do a great deal more for you.” He said that the Bureau controlled about five thousand dollars of their money from timber sales, “but we can not do anything with this money until you get together and have one governor.” Meritt added that the Bureau wanted to collect admission fees to the Puye ruins within the Pueblo’s boundaries and that “if you had a governor that was rec-

32

A Fateful Time

ognized by all of the Indians of the pueblo he could be of assistance to us in working out this problem.” Finally, Meritt tried to convince the members of Santa Clara Pueblo that the laws of the United States overrode their traditional laws, telling them that “the laws of Congress are supreme in the United States, and if there is any conflict between the laws of Congress and any secret law that you might have, then necessarily under the decision of the Supreme Court of the United States the laws of Congress must prevail.” He illustrated his ignorance of the institutions of the Pueblo by asking at one point, “Could I meet both members of the cacique if they are here?” Meritt’s “decision” ignored the religious structure underlying the governmental structure of the Pueblo, and for this reason it did not work. In 1935 Santa Clara adopted a written constitution that institutionalized competitive elections—and evidently substantially moderated (although not completely eliminated) the factional conflict—but Meritt’s attempted solution to the problem failed.73 This incident illustrates another reason the bia tried to “recognize” some Indian governments during the 1920s. U.S. government officials, no matter what their ideological conviction in regard to dealing with individual Indians, in fact had to acknowledge in many cases that functioning Native American governments existed. In practice, these officials were frustrated by their lack of a clear-cut notion of the nature of the government with which they were attempting to deal. If they undertook to make decisions without consulting the officials who had authority within the society in question, they ran the risk of their actions being ignored. Therefore they felt compelled to solve factional conflicts that prevented a determination that a single set of officers had authority. In this case, the effort failed.

Conclusions The top leadership of the national government charged with dealing with Native Americans during the 1920s believed in the forced assimilation ideology. The long-range goal of national policy, as they saw it, was to speed the assimilation of Indians into American society, whether this was what they desired or not. Clearly, such assimilation meant, as they saw it, the destruction of Native American governments. The ideal was that Bureau officials would deal eventually only with individual Indians. At the same time, the existing structure of Indian law, embodied in statutes as well as court decisions, recognized the continuing sovereignty of Indian societies, even though this sovereignty had been restricted by a century of national control.

Indian Self-Government and the National Government During the 1920s

33

Moreover, this structure of national law required government officials to act as guardians of Indian property and to engage in a number of actions to prepare Indians for assimilation and move them in this direction. For a number of reasons, the day when the Bureau of Indian Affairs could go out of existence and Indians could be treated like any other citizens (as this ideology saw it) had not yet arrived. In some cases during the 1920s, the Bureau followed the logic of the forced assimilation ideology. In refusing to approve a national intertribal organization or a government for the entire Sioux Nation, the principal justification was the animus against Indian governments. However, it may also have been significant that in both of these instances the issue was whether or not to create new structures above the local level. Perhaps the Bureau officials thought that existing local governments had to be tolerated for a time but that enlarging the sphere of government, at least on Indian initiative, was another matter. In spite of the dominant ideology during this period, however, the Bureau did deal with Indian governments and even had an informal means of “recognizing” such governments. Moreover, at various times during the 1920s government officials created new Indian governments or tried to do so. In the Navajo case, the primary reason was the desire to provide non-Indian access to Indian resources; when advised that the law required Indian consent to oil leases, the bia response was to create bodies that could give such consent. The fact that a new structure at the level of the Navajo Nation as a whole was necessary to meet Bureau goals did not prove to be a barrier in this case. At the same time, local agency initiatives to organize new Navajo governing structures were supported. Both types of structures survived, came under Navajo control, and became the basis for present governance in the Navajo Nation. Another attempt to develop Indian resources for the benefit of non-Indians led in the Flathead case to the attempted creation of a new local governing structure. In this instance, clearly the objective was to circumvent and/or override an existing Indian governing structure whose leadership did not agree with the Bureau’s plans for the reservation. The creation of the United States Pueblo Council paralleled the Navajo case in that a new level of government was developed; Herbert Hagerman led both of these efforts. But the Pueblo case also resembled the Flathead case: In both instances, the Bureau was attempting to circumvent and/or override an already existing structure that had been developed by the Indians themselves but was not in agreement with Bureau policy. In the final instance reported in this chapter, Assistant Commissioner Meritt attempted to resolve a long-standing factional dispute at Santa Clara Pueblo by making a “decision” that he expected the Pueblo to accept and follow. In

34

A Fateful Time

this instance, the perceived problem was that there were two structures claiming authority within the Pueblo because the consensus underlying the former governing pattern had broken down. The national government in this case tried to resolve the problem by fiat. These case histories, although they represent only some of the most important issues involving Indian self-government during the 1920s, justify an overall conclusion. The absence of any clearly stated policy toward Indian governments, either in statutory or administrative form, resulted in inconsistent and arbitrary actions. Moreover, the absence of rules maximized the prospects that the Bureau would see questions of Native American governance primarily in terms of their relevance to the goals of the Bureau. The fact that the dominant forced assimilation model led them to believe that the long-range goal was the abolition of Indian governing structures strengthened this tendency. In none of the cases cited here was the primary purpose to further Indian self-government. In two cases it was in fact to frustrate already-existing Indian governments and in two more it was to deny Indian initiatives to organize new governments above the level at which traditional organization existed. As long as the Bureau assumed that it had carte blanche authority over Indian governments but in fact had no guiding policy determining when to use such authority, it was unlikely that its decisions in this area would serve Indian desires for self-government. However, it is also clear that, in spite of the dominance of the forced assimilation ideology, in practice the Bureau of Indian Affairs during the 1920s did not consistently attempt to deny the existence of Native American governments and deal only with individual Indians. Partly because of existing law and partly because Indian governments had not in fact disappeared uniformly, the Bureau’s actions often acknowledged and dealt with such governments. No doubt this was also true in many agencies on matters that did not involve national bia action.

Chapter Two The Status of Indian Governments During the 1920s

Although the record of bia involvement with Native American governments during the 1920s shows clearly that there were many such governments in existence at that time, both the extent and the character of existing Indian governments are unknown in an overall sense. Yet answers to the questions whether Native governments had died out in many societies and whether such governments as still existed were traditional or imposed by non-Indians are of crucial importance to attempts to understand how the Indian Reorganization Act affected Indian self-government. During the 1920s and up to passage of the ira in 1934, there were numerous statements that many if not most Indian governments had disappeared, leaving in effect a governmental vacuum on many reservations. For example, the alleged decay of Pueblo governments was a crucial argument in the attempt to extend national law over these societies. Obviously, the creation of governments under authority of the ira meant one thing where no prior government existed and another where the new governments replaced existing ones. Likewise, the question of the extent to which those Indian governments that clearly existed when the ira became law were traditional and/or created by Indians themselves is of central importance in evaluating how the ira affected Native American patterns of governance. Unfortunately, there is at present no definitive national summary of the status of Native American governance from 1920 to 1934. Neither the Bureau of Indian Affairs nor the Department of the Interior kept meaningful central files on this question; almost all the relevant files are contained in agency files. No doubt it is theoretically possible to examine the relevant portions of all these thousands of often voluminous files to develop an overall picture of the nature of Indian governance for this period, but no one has invested the very large amounts of time that would be necessary to arrive at such a picture. Even a complete account based on government documents would have to be corrected with information from other sources, however; Bureau files are not always complete or completely accurate. 35

36

A Fateful Time

After passage of the ira, in preparation for votes on each reservation to determine whether the Indians would accept the Indian Reorganization Act, a detailed questionnaire was submitted to each agency, asking for information on governing structures. The replies to these are in the files of the Organization Division in the National Archives Building. A compilation of these returns would be the easiest way to attempt to get a comprehensive picture of the status of Native American governments at that time, although it is apparent that some of the organizations reported in that questionnaire were formed in response to introduction of the bill that became the ira. But this too would be a large undertaking.

The 1929 Survey of Business Councils The only known attempt at a systematic survey of the nature of Indian governments during the 1920s resulted from a bia circular during the Burke administration in early 1929.1 On March 14, 1929, Burke sent Circular 2565 to all superintendents of agencies and schools, asking them for information about business councils on reservations. Of approximately 120 officials who received the circular, 78 replied, and the material from these communications is summarized here, in the absence of anything better. The information provided in response to this circular is obviously incomplete, for several reasons. First, approximately one-third of the officials did not reply to the request for information. Second, the replies are often couched in vague terms; it is often difficult to tell the situation on each reservation under the authority of the superintendent or precisely what was the nature of existing governments mentioned in the replies. Third, the circular asked for information about business councils— only one type of government—although a number of superintendents did report on other kinds of governing structures. Fourth, in many cases the information provided was obviously too brief to describe the actual nature of the structures reported. With these necessary caveats, the replies to Circular 2565 do provide more information in one place on important questions about Native American governance than any other source. They reveal, first, the existence and vitality of many clearly traditional governments, although the superintendents were not asked about this topic. The traditional structure of Pueblo governments, noted above in discussing the Santa Clara case, was described by the superintendents of both the Northern and Southern Pueblo Agencies. This structure was no doubt developed centuries earlier in response to the Spanish conquest (and the later reconquest in 1692, after the Pueblo Revolt of 1680). It provides basically for a governing

The Status of Indian Governments During the 1920s

37

structure dominated by non-elected religious leaders—in most cases the caciques of the moieties, as at Santa Clara. Even today the Pueblos are secretive about the nature of the religious structures underlying the secular forms, but the essence of the selection procedure is that the caciques nominate candidates for secular offices in noncompetitive elections. The superintendent of the Northern Agency provided this comment on the Pueblo pattern of governance: They have no form of constitution or laws governing their elections. In practically all cases the Cacique is the ruling man, and he chooses the Governor of his Pueblo. The Indians, in talking it over call it an election, but very few of them have what really could be called an election. This present form of government has been in existence for hundreds of years and there is no way of introducing any other business committee as long as the old form of government exists in the Pueblos. While the Governor is supposed to be the head of the village, he cannot act on any proposition you put up to him without first holding a meeting with his Council and getting advice from the Cacique. Of course the stability and strength of this pattern, maintained over many centuries in the face of attempts by Spanish, Mexican, and American governments to exercise control over the Pueblos, demonstrate that the fundamental pattern has constitutional status. While the superintendent for the Hopi Agency reported only that there was no business committee among these people and there was no report for Zuni, traditional structures strongly resembling those in the Eastern Pueblos also existed among Hopis and Zuni at the village level. Several superintendents reported non-elective chiefs or councils, even though they had not been asked about governments of this type. For example, it was reported that the White Mountain Apache Tribe had a “Tribal Council, according to their old Indian custom, consisting of the head chief and a number of sub-chiefs.” The superintendent then gave information about the selection of these officers and their lifetime terms of office. The superintendent with responsibility for relations with the Havasupai Tribe reported that “these Indians recognize, to a certain extent, among themselves a chief and about three sub-chiefs, and statements made by these headmen usually bear considerable weight.” Of the Seminole Tribe it was reported that “the government of the tribe is made up of a council of the oldest men from each clan. One business meeting is held each year.” The superintendent with jurisdiction over the Walapai Tribe reported that “there are three men who style themselves ‘chiefs’ and members of the tribe go to them frequently for advice and business matters.” The Puyallup Tribe was said to be governed by a group of seven men, elected for life, who were the successors to the “council of the tribe,” which

38

A Fateful Time

“did all the tribal business; selected and recommended who would be the chief, sub-chiefs; made treaties etc., and did all affairs for the tribe.” At least as the superintendent perceived it, the government of the Yuma Tribe apparently was traditional but losing authority; he reported that “when I took charge here, the tribal business appeared to be handled by a committee of three old Indians, Chappo Jackson, Martin Acquinas and Nelson Rainbow, but their decisions were not accepted by a large portion of the Indians of the reservation.” The persistence of traditional attitudes toward governance is clear from the many reports of elected officials who served for life. Perhaps a society in transition was indicated by the report of the superintendent for the Quapaw Tribe that the chief had just died and had not yet been replaced but that there was a “Tribal Committee . . . elected . . . for an indefinite period.” In sixteen cases business committees were reported whose members served for life or an indefinite term. Two societies were reported to have general councils that met from time to time. These were the Fort Totten Reservation and the Umatilla Tribe. If all of the above societies are counted as traditional governments, there were forty-five in this group, the largest category that can be derived from answers to the circular, even though there were no questions asked about this type of governing structure. In several cases, the only thing that can be learned from the replies is that there was some kind of tribal council. For example, it was reported for the Fort Berthold Agency that there was an appointed “Tribal Business Committee,” but no information was given on who appointed it or what its terms of office were. In the case of “the Indians living on the Public Domain, in Southern Oregon,” the superintendent reported that he had read in the newspaper that there was “some kind of an organization that has been handling their affairs in connection with the claims of the Siuslaw, Umpqua and Coos Indians against the Government” and that he understood they had “succeeded in having their claims referred to the Court of Claims.” Clearly, this organization was not under Bureau control, but no detail was provided about it. In thirty cases it was reported that there was a business committee, but obviously the nature of these committees varied greatly. In twelve cases it was simply reported that there was a business committee. In two cases—the Prairie Band of Pottawatomis and the Lac Courte Oreilles Band of Chippewa Indians—it was reported that there were business committees appointed by the superintendent. In only twenty cases did the business committee apparently resemble a model based on contemporary non-Indian notions. In nine cases business committees reportedly were based on written constitutions. In several of these, however, the term of office apparently was indefinite. Ten groups were

The Status of Indian Governments During the 1920s

39

reported to have business committees elected for fixed terms of office, although without written constitutions. In all, thirty-two business committees were reported. Finally, thirty-four groups were reported to have had no business committees at the time of the responses to the circular. This of course did not mean that there were no other governing structures; the superintendents may have omitted mention of them because they were not asked about them. In only a few cases did the superintendents assert that there were no governing structures at all. While not too much can be made of the numbers from the replies to this circular, it is striking that business committees clearly having nontraditional structures were reported in few cases and that traditional structures or structures with traditional features were most commonly reported. Another way to approach trying to get an overall picture is to look at the prevalence of societies whose governments were based on written constitutions. Certainly, such documents were not traditional with Native American societies before the arrival of Europeans. According to Vine Deloria Jr. and Clifford Lytle, The most profound and persistent element that distinguishes Indian ways of governing from European-American forms is the very simple fact that non-Indians have tended to write down and record all the principles and procedures that they believe essential to the formation and operation of a government. The Indians, on the other hand, benefiting from a religious, cultural, social, and economic homogeneity in their tribal societies, have not found it necessary to formalize their political institutions by describing them in a document.2 However, a number of Indian societies, particularly the Five Civilized Tribes (the Choctaws, Chickasaws, Creeks, Cherokees, and Seminoles) adopted written constitutions and other features of the Euro-American style of governance after European contact. Lester Hargrett has published a bibliography of preira constitutions, listing such documents for eight societies plus constitutions for the Indian Territory and the State of Sequoyah. Two subsequent collections of constitutions, laws, and related documents before 1934 add up to fifty-three volumes.3 What happened to the Five Civilized Tribes is instructive about both the hostility often exhibited by Congress toward Native American self-government and the strength of the judge-made pattern of Indian law. These societies were forcibly removed from the southeastern United States to the Indian Territory (later the state of Oklahoma) during the 1830s. Their constitution-based governance structures survived and flourished in spite of this move and also the forced negotiation of new treaties after the Civil War.

40

A Fateful Time

However, as white pressure to secure Indian Territory lands increased, Congress began a series of efforts that resulted ultimately in the destruction of the governments of the Five Civilized Tribes, both by subjecting them to allotment and by mounting a direct assault on their independence.4 The Five Tribes refused to agree to voluntary allotment (the Dawes Act did not apply to them), and Congress in the 1890s passed special legislation to force individual allotment on them, creating a special commission (headed by Dawes) to carry out the work. In 1898 the Curtis Act abolished the tribal courts for these five societies; at various times control over their own revenue and schools was taken from them; in 1906 legislation to destroy their governments and constitutions was passed; and in 1908 a bill to force the sale of their tribal buildings became law. As a result of these actions, leaders no longer could be selected by the Indians; the last “executive elected during the days of the tribal governments” died in 1939. Instead, for many decades the president of the United States appointed tribal leaders. In spite of this dismal record, the courts never ceased to doubt the existence of the governments of these societies, and, in 1970, Congress passed legislation once more allowing them to elect their own leaders.5 There is no overall record of how many written constitutions existed in Indian country by the time of the Indian New Deal. As noted above, replies to the 1929 survey indicated only nine business committees based on written documents. However, there is no reason to believe that this is a complete count. Felix Cohen, in the first edition of his Handbook of Federal Indian Law, after noting that students of Indian law know about the written constitutions of the Five Civilized Tribes, remarked that “what is not generally known is that many other Indian tribes have operated under written constitutions.” In a footnote, he listed sixty-five “constitutions or documents in the nature of constitutions . . . recorded in the Interior Department” prior to approval of any constitutions drawn up under authority of the ira.6 A few of these were organized in response to the first notice to Indians that a major revision of Indian law was planned, but most predate the Indian Reorganization Act.

Conditions Affecting Indian Governments In the absence of adequate information about the nature of Native American governments before the ira, it is instructive to look at some of the basic factors that have affected the survival or modification of such governments. First, it is obvious that the capacity for self-government of many Native American societies was profoundly affected over a long period by the enor-

The Status of Indian Governments During the 1920s

41

mous loss of life brought on by disease, warfare, and poverty. While the population before 1492 of what would become the United States cannot be determined with accuracy, it is now accepted that an estimate of 2 million is too low; to many scholars who have studied this question 8 million is more likely, and much higher totals have been put forward. In any case the reduction to the nadir of about 250,000 (between 1890 and 1900) represents a staggering loss of life. Russell Thornton has written that this loss of life in all the Americas (while the Euro-American population of these same areas was expanding very rapidly) is the greatest demographic disaster in human history.7 Entire societies disappeared in the United States in the nineteenth century or earlier, chiefly because of the impact of European diseases, for which Native Americans had not yet developed immunity; other societies were nearly wiped out. The Mandan Tribe, for example, fell to a population of only a little over 100 in 1837 after an epidemic of smallpox. Such catastrophes must in many cases have had a devastating effect on governance in these societies, even if governments survived in some form. Smallpox and other disease organisms are no respecters of status. The leaders of many societies, who carried with them the accumulated political wisdom of many centuries if not millennia of political life, must have been among those taken prematurely by death, and traditional structures were sometimes weakened by calamities of this magnitude.8 Second, the experience of coping with reservation life and the growing attempts of U.S. government officials to control the Indians on reservations must have forced changes in governing structures. In most cases before the rise of the reservation system, Native American governance was focused primarily on activities within each society, although of course there were experiments in bringing together the leaders of various societies, the most famous of which is the Iroquois Confederacy. When most Native Americans found themselves confined to reservations and dealing on a daily basis with national officials with much power over them, their governments perforce had to change somewhat. A major and extremely important effect of the removal and reservation policies was that the Indians forced to make these changes had most of their lands taken from them in a number of ways, many illegal. The loss of economic resources and the consequent shifts in the ways by which societies made their livings were catastrophic in some cases and traumatic in all cases. The high rates of Indian poverty during the 1920s were one measure of the continuing impact of these forced changes. However, the nature and scope of these forced economic changes was not the same for all groups. In their excellent history of the Navajos, Garrick Bailey and Roberta Glenn Bailey have noted that for several decades after the

42

A Fateful Time

return from Fort Sumner in 1868 the Navajos were able to survive the reduction in hunting and adjust their herding practices successfully, in spite of the new conditions. Reservation life did not initially destroy their cohesion or seriously threaten the preservation of their culture. The period from the late 1860s until an economic collapse in the 1890s was also a time of increasing prosperity for the members of this society.9 Similarly, the various Pueblo peoples of the Southwest were able to continue their predominantly agricultural way of life initially after the American conquest. But even these societies lost significant amounts of land and precious water to whites. On the other hand, the destruction of the buffalo herds on the Plains had much more rapid and devastating results for societies relying primarily on hunting. The economic effects of confinement to reservations for societies dependent primarily on fishing must also have been different. In brief, forced changes in the economic bases of Native American societies resulting from the loss of land and resources combined with the creation of the reservation system were often destructive to societal cohesion and consequently social structure, including governance. But these effects varied in intensity and character as well as in the rapidity of change, and no single generalization is adequate for all societies, except that the overall result was an enormous loss of land and resources. Third, various changes in group structure resulted from other major aspects of the way that reservations were established. Native American governmental practices necessarily were disrupted when members of various societies were forced by European governments and later the American government to radically change their lives. For example, the removal policy forced many Indians to leave their homelands for the Indian Territory; this policy clearly often had drastic effects on previous governance patterns. For example, the removal of the Cherokees from Georgia created a bitter factional split within the society, because some Cherokees were willing to cooperate with removal, for various reasons, while others remained strongly opposed. Also, U.S. government policies sometimes created new problems of interaction with other Native American societies. Not infrequently, for example, the reservation policy placed on one reservation two or more peoples who had not previously lived together. This happened at the Wind River, Flathead, Klamath, Warm Springs, and Duck Valley Reservations, to name only a few. In these cases, necessity forced the establishment of new governing structures to develop means of coordinating the decisions of two or more governments while simultaneously dealing with U.S. officials.10 In a similar fashion, the establishment of reservations sometimes divided peoples. Although a huge Sioux reservation on which various subdivisions of

The Status of Indian Governments During the 1920s

43

the Sioux Nation might have lived was once provided for by treaty, eventually the Sioux found themselves divided among a number of reservations, chiefly in South Dakota. Presumably the attempt by some Sioux leaders during the 1920s to create a governing structure at the level of the nation was one response to this situation. The creation of the All-Pueblo Council during the 1920s was an Indian response to the need to have a structure that could counter government policies applying to all or most Pueblos. Sometimes the national government saw a need to establish new governing structures that Native peoples themselves may not have needed, because no structures existed above local levels and government officials found it easier to deal with fewer governments. The creation of the council that ultimately became the government of the Navajo Nation is one example of this. Another factor of substantial importance that has not always been recognized was that not all Indians ended up— or stayed— on reservations. By the 1920s, as noted in the Meriam Report (discussed in chap. 3), there were substantial numbers of Indians living in urban areas in a non-reservation context. Almost certainly these “scattered” or “urban” Indians found it more difficult to take their governments— of whatever kind—with them or reconstruct governance structures under the new and inevitably more atomized conditions of life outside Native communities. Fourth, a number of features created by national government policy based on the forced assimilation policy either brought about changes in Indian life or divided Native American societies. The extent to which such societies genuinely enjoyed the homogeneity referred to by Deloria and Lytle is difficult to know with precision, but the cumulative impact of various policies either carried out or encouraged by national policy over several decades, among other effects, increased the divisions within such societies and, therefore, the difficulty of making consensus-based decisions. For many decades before the 1930s missionaries and others representing non-Indian religions had been making extensive efforts to convert Indians to various forms of Christianity. During the Grant administration the national government followed a policy (almost certainly in conflict with the establishment clause of the First Amendment to the U.S. Constitution) of allowing various religious denominations to choose Indian agents on many reservations. Agents so chosen sometimes also attempted to convert the Indians on the reservations to their faith. There are still reservations on which at least nominally the largest religious group is the one originally promoted by agents chosen in this fashion. While church selection of agents was abandoned after only a few years, missionaries continued to make extensive efforts to convert Indians on many reservations, and many of these efforts were at least partially

44

A Fateful Time

successful.11 The conversion of Indians may have been most effective where the missionary efforts were accompanied by the building of schools and hospitals under religious auspices. These missionary efforts undoubtedly weakened traditional Native American religions, but they also divided Indian communities on religious grounds, since there were usually traditionalists who resisted conversion efforts. Although again there is no systematic national summary of the various effects of these religious changes, their net result was surely to weaken traditional Indian religions, which usually were intimately intertwined with governing structures and practices. While the theocratic structures of the New Mexico Pueblos were unusual, in many instances there was a union of religious and political life, not the separation mandated by the U.S. Constitution and generally practiced in non-Indian society. To the extent that this was the case, traditional governance must have been affected adversely. These matters are complex, and simplistic assumptions about them must be handled with caution. For one thing, apparent conversions to Christianity may well have been temporary, replaced in old age or when events changed with a reversion to other and more deeply held beliefs. As DeMallie’s studies of Black Elk’s visions as reported by John G. Neihardt make clear, the expositor of one of the most comprehensive versions of traditional Sioux religious visions, who wanted to record what he had learned so that it would not be lost, was for thirty years a convert to Catholicism who maintained during this extensive period that he had rejected the old ways.12 For another thing, peoples not acquainted with monotheism may well incorporate new elements into their belief systems without dropping old ones. As an example, a member of the Pyramid Lake Paiute Tribe managed at the same time to be an Episcopal lay leader, a Northern Paiute shaman, and a road chief in the peyote church.13 Bailey and Bailey report that religious beliefs changed very little on the Navajo Reservation until the 1950s. Moreover, while after that point the peyote religion and various Protestant religions spread rapidly on the reservation, there is much reason to think that many Navajos simply added nontraditional beliefs and practices to their traditional religion. Bailey and Bailey state that “it can be argued that new religious rituals and practices are being integrated into Navajo ritual practices, and that since the 1950s, the Navajo ritual inventory has actually expanded, rather than diminished.” 14 Nevertheless, on many reservations traditional beliefs probably weakened and religious diversity and conflict increased; a primary component of the former homogeneity of many of these societies had declined. Missionaries or missionary-oriented agencies often exerted influence on Indian life at levels above that of the reservation. The Board of Indian Com-

The Status of Indian Governments During the 1920s

45

missioners, which played a significant role in national Indian policy from its establishment in 1869 to its abolition by Commissioner Collier, from the beginning had members who were chosen from religious ranks and usually included missionary representatives and/or reflected their views. Similarly, the Indian Rights Association, for decades the most important private group concerned with national Indian policy, was missionary-oriented. Collier abolished the Board of Indian Commissioners partly because of its pro-missionary orientation, and the Indian Rights Association opposed his plans for a comprehensive new Indian statute at least partly because it correctly perceived Collier to be hostile to efforts to convert Indians to nontraditional religions (see chap. 8). While we lack an adequate national summary of the impact of missionary efforts over many decades to influence Indian societies, it is obvious that these efforts weakened traditional Native American governance patterns by introducing previously nonexistent divisions. Similarly, by the early 1930s the U.S. government, some local governments, and various private groups had attempted over many decades to change Indian ways of life through educational means. Few educators of Indians before the 1930s had sought to preserve Native American cultures. Moreover, these educational efforts relied strongly on boarding schools. These institutions must have been particularly harmful to the preservation of Indian cultures, because they removed children from their families and societies for long periods. One of the most important of these early boarding schools, the Carlisle Indian School, was headed for decades by army officer Richard Pratt, who chose this format deliberately because he felt it would “civilize” Indians most effectively and quickly, and his model was often duplicated later for similar reasons. Frederick E. Hoxie has pointed out that in the early years of this century, at the national level the bia moved away from boarding schools. This development was part of a general replacement of the kind of education favored by Pratt with vocational instruction and assumed that most Indians would be engaged in manual labor and that there was no need to prepare Indian children for higher education. Captain Pratt was removed as director of Carlisle, and in 1918 his school, which had produced a number of Indian graduates who went on to become highly educated and successful in the non-Indian world, was closed. Hoxie cites evidence that behind these changes lay racist assumptions. Unlike Pratt, who was explicit that Indians were “savages” but also that they possessed the inherent capacity to be educated to any level attained by white Americans, bia leaders, important congressional figures and “friends of the Indian” during this time advanced the view that Indians were racially incapable of “civilization,” an opinion that condemned them to low-income and low-status positions in society.15 These changes undoubtedly reduced the quality of education available to Indians through the national government, but

46

A Fateful Time

they did not necessarily change the direction of pressure through the schools to abandon tribal ways and assimilate to general American society. No doubt not all educators of Indian youth in practice were zealous in pursuit of assimilationist goals, and no doubt also formal Indian education had limited effect on Indian life, for several reasons. First, of course, formal education was seldom imposed on adults; even if the schools had changed every Indian child, there would have been a lag in terms of the total impact on Native American societies. Also, for many decades formal European-oriented education was not universal for Indian children; the national government did not provide enough schools to educate all children within the Navajo Nation, for example, until well after World War II. Finally, by no means was it the case that Native American parents gave up their attempts to pass on their cultures to their children. Even if the children were removed to boarding schools, the parents had opportunities to teach them their Native languages and many other aspects of their cultures before they were old enough to attend these schools. Again too, it is apparent that the resilience of societies in retaining cultural beliefs and practices in the face of formidable obstacles is often great; Pratt and others often complained that their students “went back to the blanket” when they returned home. Nevertheless, there can be little doubt that the impact of formal education intended to make over Indians culturally must have been great, forcing some people away from their inherited cultures and toward what the U.S. government wanted them to become. At the very least, assimilation-directed education was one of the factors producing a division between “progressives” and “traditionalists” within many societies. This factional development undermined the consensus that had often existed earlier and on which traditional decision-making depended. The evidence reviewed in the last chapter makes it clear that administrators often made attempts to change or abolish Native American governments, although there was no concerted and consistent effort in this direction and these same officials often in practice acknowledged the legitimacy of Indian governments. The net result of these efforts over many decades surely was to destroy some governments and profoundly change others.

The Allotment Policy and Self-Governance The allotment policy, which dominated national efforts to assimilate Indians from the 1880s on and had the most important effects on Indians, not only weakened traditional beliefs but also introduced still another major division within many societies. Ultimately, the ira sharply reversed this policy, be-

The Status of Indian Governments During the 1920s

47

cause John Collier and other reformers realized that it had led to the loss of enormous amounts of Indian land, on top of the even larger reductions made earlier by the removal policy and the establishment of the reservation system. The allotment policy also struck a blow at the development of Indian farming and ranching, which had been increasing before the advent of the general allotment policy but which declined after 1887.16 But allotment also created divisions within Indian communities. The allotment policy began on a piecemeal basis, in the 1850s, through inclusion of allotment clauses in various treaties or statutes applying to specific societies, but it became one of the few supposedly general policies with passage of the General Allotment, or Dawes, Act in 1887. As noted above, the Five Civilized Tribes were later allotted under legislation applying only to them, which was also the situation for several other societies. Indian heads of families were each allotted 160 acres of agricultural land, or larger amounts of grazing land; other members of Indian households received smaller amounts. Originally these lands were held in trust by the U.S. government for twenty-five years, during which time they could not be sold. At the end of this period, the head of household would be granted a fee patent to the land and could sell it without restriction. Indians were asked to select the lands that they would be assigned; if they refused, the government selected lands for them. A key decision in the legislative process leading to enactment of the Dawes Act was to make allotment compulsory.17 The remainder of reservation lands after all allotments had been made was considered surplus and was made available to non-Indians. There were various ideas and motivations behind the allotment policy. Opponents of the policy during the years it was debated in Congress before 1887 warned that behind it lay greed for Indian lands and that its adoption would permit the looting of Indian property by non-Indians. A major study of the act concludes, “It is probably true that the most powerful force motivating the allotment policy was the pressure of the land-hungry western settlers.” Hoxie has likewise noted that it combined “western venality” with “reformers’ sweet promises.” 18 It is apparent also that the desire of railroad interests for rightsof-way across Indian lands played an important role. These reasons for the policy were not often publicly stated but clearly interacted with idealistic motives; Brian Dippie is probably correct when he writes that “the beauty of a general policy of allotment in severalty was that it managed to accommodate both East and West. It appealed simultaneously to humanitarian instincts and overt self-interest.” 19 Both factors were present among whites, of course; few Indians asked for or supported allotment. Massachusetts Senator Henry L. Dawes, who played the leading role in establishing the policy as chair of the Senate Committee on Indian Affairs after

48

A Fateful Time

1881, typically presented allotment in idealistic terms. Although Massachusetts no longer had a significant Indian population, Hoxie has suggested that Dawes’s embrace of Indian reform in 1879 “saved his [political] career.” Dawes led a group of Republican senators—mainly from New England—who retained from their Reconstruction days an interest in moral reform and believed themselves to be genuinely “friends of the Indians.” 20 The starting point for the thinking about Indian policy that characterized Dawes and those who followed his lead was their strong belief that Native Americans were “savages” who would benefit from becoming “civilized.” As Hoxie has put it, the most basic premise behind this policy was that “the destruction of ‘savagery’ and the expansion of Christian ‘civilization’ would convert individual natives into docile believers in American progress.” The assimilation policy had three elements: It “assumed that landownership, citizenship, and education would alter the traditional cultures, bringing them to ‘civilization.’” 21 By 1887 a near-consensus had developed among the “friends of the Indians” that making individual land-owning farmers of Indians was the key element in a plan to bring about their forced assimilation into American society, and therefore was beneficial to Indians in the long run. The development of this consensus was facilitated by yearly meetings of the small number of national figures concerned with Indian policy—in or out of government—at the Lake Mohonk Conferences. Several individuals in and out of government, however, including Dr. T. A. Bland, publisher of Council Fire, opposed it. A strongly worded minority report of a House committee in 1880 opposed the policy on the ground that it would destroy Native American “communism” and bring about the loss of Indian lands and their “extermination.” In 1881, when the principal congressional debate over allotment took place, Colorado Senator Henry M. Teller opposed it vigorously. He predicted, accurately, that its chief effect would be the loss of Indian lands.22 The continuing power of the Jeffersonian ideal of a society consisting of equal property-owning, self-reliant men, which had formed the ideological basis for the homestead acts and related national policies dealing with resources in the latter half of the nineteenth century, contributed a great deal to the attractiveness of this policy among both idealists and plunderers. At least some of the reformers were aware, however, that their idealistic conceptions dovetailed with desires of Western legislators to forward the interests of some of their non-Indian constituents. Dawes himself had once opposed allotment as a general policy; he explained his crucial change of heart on the issue by saying that “every year I have been weakening on it because I have come, from year to year, to the conclusion that this pressure upon the Indian for his lands

The Status of Indian Governments During the 1920s

49

has come to be irresistible, and that we have got to make provision for him now just as quick as we can, or we shall lose the opportunity.” 23 This bears an uncomfortable resemblance to the assertion that it was necessary to “save” a Vietnamese village by destroying it. What he said to justify this view, however, was that it would be easier for Indians to retain their lands against Western assaults on them if the lands were in private hands. It did not work out that way. Perhaps Dawes was also influenced by his view that allotment would make it possible in the not too long run to reduce the size and costliness of the Bureau of Indian Affairs; this also appealed to a segment of congressional opinion. The role of scholarly theorizing and/or widespread popular ideas in explaining why the allotment policy was adopted is not easy to determine. Hoxie argues correctly that the few nineteenth-century “scientists”—most of whom were technically amateurs—who wrote seriously on American Indians were largely advocates of an evolutionary theory postulating uniform stages of human development from savagery to civilization. That is, very little scholarly opinion was available to the “friends of the Indians” that dissented from the existing mind-set of these activists. However, not all of these thinkers agreed that allotment as a policy made sense. Lewis H. Morgan, one of the most influential of these thinkers, published a book in 1881 opposing the policy, when the most extensive congressional debate on allotment was going on. He died in that year and so had no direct influence on the movement that led to the 1887 statute, however.24 Hoxie has drawn attention to the treatment of other minorities defined in racial terms during the nineteenth century. However, these matters are complex. While the savagism/civilization framework of ideas clearly denigrated Native American cultures, it also could deny the racist assumption that Indians were savages by nature. This is most clear in the firmly expressed opinions of Captain Richard Pratt, the founder of Carlisle Indian School; he stated forthrightly that both Indians and African Americans were fully capable of becoming as “civilized” as he presumed Euro-Americans to be. It was merely necessary that federal officials assume the obligation of giving the Indians the right kind of education to enable them to realize this potential. While Pratt took it for granted that Native Americans were somehow retarded on a universal path toward civilization, he also refused to entertain the possibility that this was the case because they were inherently inferior to Euro-Americans.25 Yet white racism was a significant feature of American society during the nineteenth century, and its interrelationships with attitudes and policy toward Native Americans largely remain unexplored. Partly because of the unique legal status of Native Americans, combined with the fact that the federal government dealt with them through a separate governmental agency after the

50

A Fateful Time

first part of the century, Indian policy tended to remain the domain of a restricted group of government and nongovernment leaders at the national level. There was little obvious overlap between attitudes and policy toward Native Americans, African Americans, and Asian Americans, all of whom suffered legal discrimination and private hostility in various ways and to varying degrees. Apparently the structures of ideas behind these policies varied too. Scholarly views about Native Americans changed in the early part of the twentieth century in a way hostile not only to nineteenth-century ethnocentric conceptions of Native Americans but even more firmly to racism. Anthropology became a genuine academic discipline in the United States only after 1900. As part of a general development toward specialization and professionalization in American universities, this branch of knowledge achieved status in a few leading universities as a separate field of study and began expansion into many others. The young discipline reached agreement on the subjects to be studied and techniques for studying them, and it started producing a substantial body of scholarly literature. At first this literature was largely about Native Americans, although nothing in the discipline’s theoretical structure required this result.26 This growing professionalization, however, was accompanied by a significant departure from the structures of ideas shared by most scholarly students of Native Americans in the previous century. The two chief founders of contemporary American anthropology—Franz Boas at Columbia University and Alfred Kroeber at the University of California, Berkeley—rejected the nineteenth-century evolutionary theories. Both men had a distaste for overarching theories, but included in their approach was a refusal to accept ethnocentric and racist underpinnings for theories of human nature and society. Elvin Hatch has written of both these developments of the new century. From early in the century at least through the 1930s anthropologists, initially largely following Boas and Kroeber, were cultural relativists. They saw peoples in cultures and societies outside the European orbit as making choices that were different from, but not inferior to, those made by Europeans and their descendants in other parts of the world. Along with this rejection of the savagery/civilized dichotomy, twentieth-century anthropologists also rejected the notion that human groups were divided by fundamental inherited differences along a scale ranging from inferior to superior. Hoxie is correct that the new science of man undermined the fundamental notions behind all ideologies that assumed Native Americans should and would become more “civilized.” But anthropology also undermined all attempts to portray Indians as unable to imitate Western civilization, and so worked against notions that Indians were doomed to occupy inferior positions in American society. It is no accident that when John Collier developed conceptions of Indian policy

The Status of Indian Governments During the 1920s

51

that went beyond cultural pluralism to view Native American societies as superior to those of European origin he found allies within the anthropological community. The effect of these changes in the scholarly world and in underlying popular views explaining group differences are difficult to relate directly to federal government policy, however. As chapter 1 has shown, the top federal officials charged with implementing national Indian policy during the 1920s explicitly endorsed the old assimilationist goals of their predecessors; there is little evidence that they based their work on the changed scholarly views. These statements by government officials also demonstrate little concern with why the ideology had not yet produced the intended results, although several decades had passed since it became the theoretical basis for federal government policy. In any case, the views of the idealists who helped enact the allotment policy or of government officials charged with carrying it out were not the only factors in determining what actually happened in Indian country. In addition to the actions taken— or not taken—by Indians themselves, the land pressures that played a major role in enacting allotment continued. An important part of the thinking behind the allotment policy was the assumption that, over a relatively short period, the Dawes Act and similar legislation would somehow work to destroy Indian societies and their governments, thus individualizing these societies. As Dawes put it, “The idea is to take the Indians out one by one from under the tribe, place him in a position to become an independent American citizen, and then before the tribe is aware of it its existence as a tribe is gone.” The report of a committee of the House of Representatives in 1884 on a bill similar to the one that eventually passed said that one of the effects of the bill would be that “a process of tribal disintegration is at once started.” 27 Nevertheless, it is a curious fact that the Dawes Act did not provide explicitly for various mechanisms to bring about the desired results. In particular, it did not mandate the destruction of Indian governments. As Leonard Carlson has put it, “The reformers had an almost mystical faith in the power of private property to transform American Indians and assimilate them into hardworking farmers.” Earlier, Angie Debo had used the same phrase—“almost mystical faith”—to describe the deeply rooted belief that private property was the basic foundation of civilized life. Senator Dawes stated that allotment was a “self-acting machine” that would automatically improve Native American societies.28 But exactly what would happen as a result of individualizing property ownership was not made clear by the statute. There was also confusion—some of which persists to the present— over the role of citizenship in bringing about this result. Two sections of the Dawes Act were believed by the reformers to push in the direction of ending the unique

52

A Fateful Time

legal status of Native American societies, but neither did so, nor was there sound reason to believe either could have had this effect. One of these provisions conferred U.S. citizenship on successfully allotted Indians. Initially, the allottee was to become an American citizen as soon as the allotment was issued, but in 1906 the Dawes Act was amended to confer citizenship when a fee patent for the land was issued. In 1887, most American Indians were not citizens of the United States, because the Supreme Court had ruled in 1884, in Elk v. Wilkins, that the Fourteenth Amendment’s conferral of citizenship on all persons born in the United States and “subject to its jurisdiction” did not apply to Indians because they were not yet subject to the jurisdiction of the national government.29 Obviously the authors of the Dawes Act thought that citizenship would eventually result in making U.S. citizens of most allottees, but this was incorrect without explicit congressional action. It was also widely assumed that U.S. citizenship would automatically weaken Native American societies, but this view was based on unrealistic notions about the meaning of citizenship. There was a notion that assumption of U.S. citizenship would annul tribal citizenship, but nothing in the statute required this result and the courts did not hold that the two levels of citizenship were any more incompatible than national and state citizenship. It may also have been assumed that U.S. citizenship would automatically give Indians the right to vote in state and national elections and thus make Indians full participants in the political order of the wider society. If so this was equally unrealistic. The right to vote was and is granted by states, subject to restrictions laid down in the federal Constitution. States have in the past denied the right to vote to large numbers of U.S. citizens (e.g., women before adoption of the Nineteenth Amendment in 1920) and have extended it to noncitizens (e.g., immigrants who had applied for citizenship in some states before this practice was abandoned in the 1920s). After all Indians were declared by Congress in 1924 to be U.S. citizens, it was a quarter of a century before all states granted Indians the right to vote.30 The reformers also thought that citizenship automatically extended the protection of important constitutional rights, but they were equally mistaken on this point. Almost all constitutional rights enjoyed against either the states or the national government are rights of persons, not citizens. In principle they apply to all under the jurisdiction of the national government and are not dependent on citizenship. Hoxie, for example, is incorrect when he asserts that the Supreme Court, in the civil rights cases, “promised that national standards of citizenship would not be enforced in the South.” This opinion held that the Congress had not been granted by the Fourteenth Amendment to the Constitution the authority to pass legislation applying to individuals; it had nothing

The Status of Indian Governments During the 1920s

53

to do with citizenship. The period when Congress adopted allotment was also the time when it in practice gave up protecting the rights of Southern blacks supposedly guaranteed by the Civil War amendments, but again this had nothing to do with citizenship.31 In short, the assumption that making U.S. citizens of Indians would significantly change their legal status and thus weaken Indian governments was unrealistic, and this provision of the Dawes Act did not have such an effect. It was equally unrealistic to believe that by becoming citizens, Indians would automatically increase their commitment to general American culture—the goal of forced assimilation. A second provision of the Dawes Act made Indians subject to state jurisdiction as another consequence of individual ownership of land. Section 6 originally stated that “upon the completion of said allotments and the presenting of the lands to said allottees, each and every member of the respective bands or tribes of Indians to whom allotments have been made shall have the benefit of and be subject to the laws, both civil and criminal, of the State or Territory in which they may reside.” Subjecting entire Native American societies to local and state law would certainly have diminished Indian self-government, but the courts prevented this from happening, in spite of the explicit language of this provision. Initially the Supreme Court did interpret the provision literally. In 1905, in the Heff case, its first decision about the meaning of section 6 of the Dawes Act, the court said that “when the United States grants the privileges of citizenship to an Indian, gives to him the benefit of and requires him to be subject to the laws, both civil and criminal, of the State, it places him outside the reach of police regulations on the part of Congress,” and it went on to speak of the “emancipation from Federal control” worked by this provision. However, in subsequent decisions the Supreme Court began to retreat from this position. Hoxie has chronicled these developments carefully and noted their substantial effects.32 In 1916, in United States v. Nice, the Heff decision was explicitly overruled. By this time the Supreme Court was saying that “citizenship is not incompatible with tribal existence or continued guardianship” by the national government. Further, it noted approvingly that “both Congress and the administrative officers of the Government have proceeded upon” the theory that “the tribal relation and the wardship of the Indians were not to be disturbed” by the allotment policy. In effect, this held that tribal sovereignty had not been abolished by allotment.33 This development resulted from several factors. The most important of these was the structure of Indian law built up over many decades; in the absence of clear evidence that Congress intended major changes in this structure,

54

A Fateful Time

the courts interpreted Indian law as they had traditionally. Another part of the reason for this outcome was probably the long period of trusteeship before a fee patent could be issued. Originally, section 6 had gone into effect as soon as an allotment was made, but in 1906 the law was amended to grant citizenship and begin state jurisdiction with the issuance of a fee patent to land.34 The basic period before such a patent could be issued originally was twentyfive years, but Congress changed this in 1906 when it adopted two amendments to the Dawes Act that had the effect of making the period of trust status indefinite in many cases. One change authorized the secretary of the Interior to issue fee patents to Indians before the expiration of the twenty-five-year period upon a finding that the Indian was “competent” to manage his own property. This provision was used to grant fee patents to many Indians who promptly lost their land to whites. However, another statutory provision in the same year authorized the president to extend the trust period beyond twenty-five years.35 Thereafter, government officials who wished to protect Indian ownership of allotted lands could, and did, do so by extending the trust period. These facts, since they meant that entire reservations would not pass out of trust status at the same time, probably affected the court’s interpretation of the statute. Still another factor was that allotment was in practice a patchwork process. Hoxie has noted that “the Dawes Act was little more than a statement of intent” because “it contained no timetables and few instructions as to how it would be implemented.” For this and other reasons, not all reservations were allotted, and even on allotted reservations not all lands were allotted or opened to nonIndian settlement. The assumption of some reformers seems to have been that all so-called surplus lands would quickly pass into white hands, leaving no trust lands on reservations after fee patents were issued (and therefore less reason for the existence of Indian governments), but again this did not happen.36 In many cases lands on reservations were in timber or otherwise unsuitable for growing crops or for grazing. In dry areas of the West (which included the very large Navajo Reservation) 160-acre parcels would have been useless to individuals for farming purposes. As a result, a number of reservations were never allotted at all. (There were some allotments on public domain lands adjoining the present Navajo Reservation, but there was never an attempt to allot most of this reservation).37 In other cases, the only lands that could be allotted were the irrigated portions of the reservation, but there was not enough of this type of land for standard allotments to all households. The Pueblos were never allotted, at least partly for this reason. Other reservations with irrigated lands, such as the Walker River Reservation in Nevada, were allotted under special statutes that mandated much smaller allotments than those provided for in the Dawes Act.

The Status of Indian Governments During the 1920s

55

In short, allotment did not have the effect of eliminating completely Indian lands held in trust and could not have worked out to this result, regardless of how it was administered. Inevitably much reservation land remained in trust status even after allotment had run its course. The partial preservation of reservation land bases, even if diminished, undoubtedly favored the preservation of Native American governments. The allotment act increased the control exerted over Indian life by the Bureau of Indian Affairs, however, a development that must have had corrosive effects on Indian governments. Again, the hope of reformers was that allotment would allow movement toward “getting the federal government out of the Indian business,” but the reverse happened. Allotment increased the size of the Bureau because more officials were needed to process the allotments and to control the use of allotted lands and the income from them in the usually long period before fee patents for the land could be issued. This became more important after Congress, in 1891, allowed the leasing of allotted lands to non-Indians. Leasing reached ludicrous levels and, in some states, the Bureau of Indian Affairs followed rules for inheriting allotments that resulted in extreme subdivision of Indian lands among many owners. These and other requirements of the allotment policy were among the reasons that “the number of employees of the Office of Indian Affairs in Washington increased by more than two and one-half times between 1900 and 1920 [and] Congressional appropriations to run the Office of Indian Affairs grew from $9.6 million in 1903 to $15 million in 1928.” 38 Although it did not “break up the tribal mass,” as President Theodore Roosevelt had predicted, allotment did have tragic consequences for Native Americans. The primary effect was that Indian lands were drastically reduced. John Collier told congressional committees in 1934 that the Indian land base had shrunk from 138 million to 48 million acres as a result of allotment, a reduction to 35 percent of the lands held in trust before 1887. A more recent estimate is that “Indian lands under the supervision of the Office of Indian Affairs declined from 104.3 million acres in 1890 to 52.7 million acres in 1933,” a drop to slightly over 50 percent of the 1887 level.39 This huge loss, whatever its precise size, resulted from the sale of surplus lands and governmental decisions to take Indian land for public purposes but also from the loss of allotted lands after the expiration of the trust period. Carlson wrote that “the best available evidence suggests that up to 80 percent or more of Indians granted patents in fee sold it or had it sold for them on account of delinquent mortgage or tax payments within a few years of being declared competent.” 40 This devastating loss of Indian lands resulted overall in a reduction in the number of Indians who had been farming or ranching before the allotment

56

A Fateful Time

policy began. More important for this book is the fact that ultimately one of the most important unintended effects of the allotment policy was to help lay the foundation for major policy change during the New Deal. When the Meriam Report established that the chief effect of the allotment policy had been the loss of Indian lands rather than the improvement of Indian life, it concluded that at least major changes in the allotment policy were in order. John Collier’s discovery of the importance of this fact was a major turning point in his search for alternatives to the policy of forced assimilation. Still another effect of the allotment policy had a more direct impact on Indian self-government in the early 1930s. Some Indian allottees became successful farmers or ranchers. These individuals may have been the most assimilated members of their societies; they were the most likely to serve on business councils or the boards of directors of cattlemen’s associations and to have demonstrated competence in dealing with the non-Indian economic order. Otis has noted that divisions between “conservatives” and “progressives” resulted from allotment both before and after 1887; this division partly coincided with the new distinction between land owners farming in a basically Anglo-American way and those not taking this step.41 These successful farmer/ranchers often defended allotment and other aspects of the policies suggested by the forced assimilation ideology. When the proposal that became the ira was sent to Congress, some of the strongest opponents were Indians who objected to the sections designed to end the issuance of allotments and return allotted lands to the control of Indian governments.

Conclusions A major argument of this chapter has been that, by the early 1930s, a number of factors had produced substantial changes in the capacity of Native American societies to govern themselves and on the nature of governance in such societies, even though we do not possess a clear national summary of what Indian governments were like at the end of this period. These effects were not entirely in the direction of destroying any governing structures at all, although during the 1920s there were frequent assertions that this was the case and obviously some traditional structures had disappeared without replacement. Instead, it is highly likely that the chief effect of the factors noted above was to transform the nature of Indian governance by changing the societies in which such governments functioned and the structures through which they were governed. Particularly, the number of assimilated Indians had increased and become more important on many reservations, because several kinds of changes forced on these societies had pushed in the same direction. An in-

The Status of Indian Governments During the 1920s

57

direct effect of this change probably was the voluntary modification of traditional governance structures and patterns. There no doubt would have been some movement in this direction even if deliberate attempts by national officials, missionaries, teachers, and others had not attempted to assimilate Indians and if the allotment policy had never begun. Indians by 1930 lived surrounded by a non-Indian society that had attractions for Indians, even though it also produced many harmful pressures on Indians and their cultures. At least elements of this surrounding society would have been favorably regarded by many Indians even in the absence of attempts to force them to assimilate. Moreover, the non-Indian society itself had changed substantially since 1887, and there is no reason to believe that all Indians would have rejected all these changes if left to themselves to decide the matter. The attraction of non-Indian society was based in part on the greater material affluence of the wider society. The desire to abandon Indian ways in order to do better economically is not without coercive aspects, especially when a major reason for Indian poverty is the forced reduction of the resources available to Indians as the result of the taking of Indian lands and resources. Nevertheless, some part of the increase in the number of Indians who had at least partly given up aboriginal beliefs and practices would have taken place without assistance from the policies discussed above. In brief, culture change was continuous within both Native American and Euro-American societies in the decades between the first significant encounters (which occurred at different dates in various societies) to the beginning of the Indian New Deal. There could not have been many Native American societies that had maintained their pre-Euro-American governance structures unchanged. In other words, while systematic overall information is not available on the extent of traditional governments in 1934, a more serious problem is to evaluate how important were the changes that had taken place. The fundamental essence of pre-Euro-American practices may very well have survived numerous and extensive superficial changes in a great many Native American societies. For example, it has been argued that a feature of many traditional Indian governing practices was the high valuation put on consensus, in contrast with the notion of deciding matters by majority rule. There is no reason why a business committee could not in practice operate under consensus rules, just as there is no reason why a superficially more traditional council of elders could not fail to achieve consensus, in the face of extensive divisions within the society as a result of the types of culture change discussed in this chapter. No attempt has been made here to offer a definitive definition (applicable to hundreds of societies) of what constituted traditional governing institutions and

58

A Fateful Time

practices in 1934, and apparently no one else has attempted to produce such a blueprint. More important, undoubtedly, is the question of whether the changes made in this area in many and perhaps most Native American societies before the Indian New Deal were initiated and controlled by (or at least had received the free consent) of the Native American societies themselves. This is an even more difficult question, in part because it is not clear in many cases what constitutes consent. In Western European societies of the last few centuries, a constituent act involving a major part of the society—a constitutional settlement such as the one that took place in the United States during the 1780s, for example—is commonly acknowledged to constitute consent. But it is less certain how to determine the degree of consent involved in important constitutional changes that occur piecemeal over many decades—such as the substantial expansion of the federal government, in relation to state governments, since the 1930s. Similar problems are involved in evaluating changes in Native American societies. For example, Assistant Indian Commissioner Scattergood, during the Hoover administration, is quoted as stating that the governing structures of the New Mexico Pueblos were not “traditional” but had been created by the Spanish centuries before (see chap. 4). There can be little doubt that the governing structure that was accepted as traditional in the 1930s for these societies had been created much earlier in response to attempts by Spanish officials to control the Pueblos. However, this structure allowed the continuance of the underlying religiously controlled former governing structure while new surface structures more visible and more Euro-American in apparent character were created. We do not know, however, precisely how this change came about or the degree to which these developments were initiated or controlled by the Pueblos or the Spanish officials. But it is apparent that by 1934 these structures had become “traditional” in the Pueblos and firmly based on the consent of the members of these societies. Likewise, the status of the Navajo Tribal Council as of 1934 presents difficulties in understanding how far it was based on the consent of the members of this society. There is no doubt that a new level of government was initiated in the 1920s for its own purposes by the Bureau of Indian Affairs rather than the Navajos. But there also is no doubt that at some point Navajos began to control this structure and regard it as their own. This was most evident during the 1930s, when attempts by the national government to restructure the Navajo Tribal Council were rejected by the Navajo Nation. Down to today this council apparently is based on the consent of the Nation, although there has never been a formal constituent act in a Euro-American sense.

The Status of Indian Governments During the 1920s

59

Bailey and Bailey’s excellent study of Navajo history during the reservation years concludes that the Navajo are different from other Indians because they were able to resist major change in the most important areas until quite recently but also have been able to control the changes that have reached them so that at no time have the integrity of Navajo social structure or their most fundamental cultural beliefs been threatened. In other words, this society has been fundamentally able to control culture change over many decades.42 The extent to which similar conclusions can be reached about other societies, however, is not certain; no doubt others are also “different.” Dippie’s study of the remarkable persistence of the myth that Indians are disappearing, despite evidence that they remain culturally different from the general American society, suggests that several major factors may have been overlooked. One of these may well be differences in gender roles. Anna Ickes remarks in her 1933 study of Southwestern Indians that “it is women, white or red, who preserve tradition tenaciously.” In her 1920s study of the Omaha Tribe, anthropologist Margaret Mead reports the differential impacts of forced culture change on this group in an insightful way. Omaha men could no longer hunt buffalo and did not take to farming as a way of life. But Omaha women, who had traditionally planted crops and taken care of children and household duties, essentially went on doing the same things even after confinement to a reservation. Moreover, they were the primary educators of young children, with the result that Omaha culture continued to be transmitted to new generations, even though men were forced to change radically their adult behaviors.43 Regardless of conclusions on this question, however, one of the most important changes in Indian life by the early 1930s was the fragmentation and division in Native America created by the partial successes of the forced assimilation policy and the other factors affecting Indian life. It would no doubt be an oversimplification to categorize all Indians at this time as traditionalists or progressives, but these terms or similar ones have been used and reflect important realities on many reservations. Hazel Hertzberg’s study of the first national organization of Indians, the Society of American Indians, is revealing on this score. The society was active for only a few years, from roughly 1911 to 1916, although it survived in some form until the early 1920s. During its heyday the group worked to speed up the pace of assimilation. Its members were chiefly individuals who had become successful in the non-Indian world—physicians Charles Eastman and Carlos Montezuma, anthropologist Arthur C. Parker, Protestant ministers Henry Roe Cloud and Sherman Coolidge, Catholic priest Philip Gordon, attorneys Dennison Wheelock and Thomas Sloan, for example. These individuals had accepted the assimilationist ideology, although not necessarily all the ways by

60

A Fateful Time

which the national government had attempted to secure the triumph of this ideology, and they wished to make it easier for other Indians to follow their path.44 Hertzberg’s study, as well as further information about Dr. Montezuma, illustrates the difficulty of understanding politics in these terms, however. Before becoming inactive, some members of the Society of American Indians defended members of the peyote religion, a distinctively Indian religion followed by members of a number of societies. Later, Dr. Montezuma became a defender of traditional Indians and moved to a reservation.45 Factionalism based on the traditionalist/progressive division has been noted in the previous chapter; at one point during the 1920s the Bureau of Indian Affairs was supporting a “progressive” group claiming to have representation in many Pueblos. H. Craig Miner has documented the role that assimilated Indians among the societies living in the Indian Territory in the nineteenth century often played in introducing railroads, mining, lumbering, and non-Indian towns into the territory against the desires of the more traditional Indians.46 No doubt other examples have been documented. One reply to the 1929 circular asking about business committees reported factionalism of this sort. The superintendent with responsibility for the Yuma Tribe wrote, “At the present time there are two distinct factions: the younger or progressive faction, and the Older people who hold to the old tribal customs.” Probably other replies would have mentioned such a split if there had been questions on this issue. James Madison, not only one of the most important leaders in creating the Constitution of the United States but also the major theorist who elucidated the principles behind this document, argued in Federalist #10 that the existence of factions was rooted in “the nature of man.” By factions he meant irreconcilable divisions within society of the sort that make achivement of consensus in favor of “the permanent and aggregate interests of the community” difficult to achieve.47 In other words, contemporary democracy in the United States and other large-scale industrialized societies takes for granted the centrality of conflict among group interests. But smaller societies accustomed to unanimity and organized on different principles may need to modify their governance structures to take the new kind of group differences into account. As the Santa Clara example indicates, long-standing and pervasive factionalism is difficult to reconcile with many traditional Native American approaches to government. To summarize, a crucial question is the nature of Native American governance at the time of passage of the ira. While systematic national data are not available, fragmentary evidence plus knowledge of factors affecting Indian governance prior to this time make it obvious that the forced assimilation pol-

The Status of Indian Governments During the 1920s

61

icy had not by 1920 succeeded in destroying Native American governments on a wholesale basis. Although self-government is not discussed by Hoxie, this finding is consistent with his conclusion that by 1920 the allotment policy had failed to achieve the goals of its principal authors. Certainly the vacuum theory did not apply to very many Native American societies. But there is also no evidence of a single uniform pattern of Indian governance. Both Indian societies and the governmental structures serving them were more complex in 1934 than they were in 1887.

Chapter Three Conflict and Consensus The 1920s

By the end of the 1920s a near-consensus had developed among the “friends of the Indians” that forced assimilation was not working. It was agreed that Indians were being mistreated, improvement could not be expected if existing practices were continued, and assimilation had not occurred as rapidly as the creators of the policy had expected. This state of affairs was reminiscent of that which developed in the 1870s, when a similar élite near-consensus had been reached in favor of the allotment policy as the chief tool of forced assimilation. As in the earlier case, the actors during the 1920s were almost entirely nonIndians, although Indians were heard to a greater extent than they had been in the earlier period. John Collier, the principal figure in the events leading up to this consensus, was a passionate advocate of Indian rights and had developed his ideas while defending goals established by Indians and by doing his best to help Indians defend themselves. The result in 1887 was passage of the Dawes Act and a consistent commitment by national officials dealing with Indian affairs—a commitment that lasted nearly five decades—to the ideology of forced assimilation. In contrast, the new agreement that change was overdue was not accompanied by anything approaching consensus on the ideology to replace forced assimilation. However, much clarification of alternative ideologies had taken place by that time, and John Collier, who was of critical importance by the time that change became possible, had developed a legislative program for implementing basic changes in national Indian policy, although the jelling of his ideas occurred surprisingly late and was incomplete when he became commissioner of Indian Affairs in 1933. This and the next two chapters deal with the development of alternatives to forced assimilation from 1920 to the Indian New Deal.

Muckraking and Dispassionate Study Randolph C. Downes has correctly designated the efforts of Collier, the person most responsible for achieving agreement that present policy was un62

Conflict and Consensus

63

acceptable, as a “Crusade for Indian Reform.” 1 Of course Collier did not bring about this result all by himself; during the 1920s there was an increase in Indian criticism of the Bureau of Indian Affairs as well as a greater willingness and capacity among Indians to fight for their rights. There was also a wider range of non-Indian concern about the welfare of Indians. At the beginning of the decade, essentially only the Indian Rights Association, with its long history of advocacy on behalf of Indians, was still active in this field, and it was weaker than it had been in the nineteenth century. The Lake Mohonk Conference, which in the previous century had brought together the “friends of the Indians,” had held its last meeting in 1916.2 Although there was a brief revival of the conference in 1929, nothing like the forum for communicating and developing consensus among reformers that the conference had provided during the last years of the previous century was available to reformers during the 1920s. Even if the Lake Mohonk Conference had survived, it is unlikely that a similar degree of consensus could have been achieved at this time, because there was substantial disagreement over ideology within the small circle of persons most concerned with national Indian policy. From 1910 to 1920, the number of actors attempting to influence Indian policy and the scope of their efforts expanded. Many congressional and public relations battles over specific issues were waged. Moreover, by 1929 several thorough and disinterested studies, most notably the Meriam Report, had appeared. The cumulative effect of these factors made it impossible to argue any longer that all was well in Indian country. The struggle over Pueblo land and water in the early 1920s has already been noted. Collier’s dramatic introduction to Indian life came at Taos Pueblo in 1920. Intermittently during 1921–1922, Collier lived at Taos and worked on behalf of the Pueblos against the Bursum bill. After his resignation from San Francisco State College in 1922, Collier worked full-time on behalf of Indians.3 In 1923 the American Indian Defense Association (aida) was organized; Collier was its founder and remained its executive secretary until 1933. The aida was primarily a means of supporting Collier and his work, although it also had local groups in various places, notably in southern and northern California, New York, and, briefly, Wisconsin. Collier had hoped to create a single national organization to work on behalf of Indians, but this effort failed.4 Other groups resumed or assumed an interest in Indian policy, however. The Indian Rights Association was revitalized during this period; it solicited and received grants from John D. Rockefeller Jr. and resumed publication of its monthly Indian Truth in 1924.5 The New Mexico Association on Indian Affairs, based mainly in the writers’ and artists’ colony in Santa Fe, was organized in the early 1920s. An Eastern

64

A Fateful Time

Association on Indian Affairs was also organized during the early 1920s. In 1930 anthropologist and writer Oliver La Farge was elected to the board of the Eastern Association and afterward became increasingly active in its work. In 1933, La Farge became president of this organization and its name was changed to the National Association of Indian Affairs.6 None of these groups was large, however, and only the Indian Rights Association and Collier’s group could afford to pay anyone to devote time to its activities. Groups not primarily concerned with Indian affairs began limited involvement during the 1920s. Judson King, director of the National Popular Government League, one of the principal goals of which was promoting public ownership of electric utilities, was hired by Collier to do publicity work against the Bursum bill in 1923 and thereafter worked with him on several issues. For a while, Collier worked out of King’s office.7 The National Conference of Social Work had heard its last paper on Indians in 1892, but it began to significantly increase its attention to Indian affairs in 1923, when a short paper on the experiences of a social worker on the Blackfeet Reservation was presented to the group. By the end of the decade Indian policy had become a regular focus of the conference. In 1929 both Lewis Meriam and Indian educator Henry Roe Cloud spoke on Meriam’s justcompleted study of Indian policy, and thereafter for many years several papers dealing with Indians were usually presented. In 1930 W. David Owl, a missionary to Baptists and Presbyterians on the Cattaraugus Reserve in New York, spoke on general Indian policy. The same year Julia C. Lathrop read a paper on the Meriam Report; the previous year a new committee of the National Conference had been formed in response to this study. Meriam and W. Carson Ryan Jr., who had written the educational portion of Meriam’s study and was then head of the bia’s educational work, spoke to the conference in 1931. Commissioner of Indian Affairs Charles J. Rhoads spoke in 1932. Collier talked to the social workers in both 1932 and 1933, and at various times several Indians or prominent Bureau officials made presentations at these annual meetings. For example, Ruth Muskrat Bronson gave an address on “The Indians’ Attitude toward Cooperation” in 1931. Bronson had been a member of the Committee of One Hundred (discussed below) and at a White House meeting to present the findings of this body had presented President Coolidge with a Bible and talked with him about Indian policy.8 The American Civil Liberties Union, which grew out of a group organized to support the rights of conscientious objectors to military service during World War I, was organized nationally to defend civil liberties on a wider front in 1920. On August 16, 1928, Roger N. Baldwin, the aclu’s executive secretary, initiated correspondence with Collier. Saying that “from time to time

Conflict and Consensus

65

we have had appeals made to us to help in the work of defending Indians but I have always replied that you were on that job and that there was no need of our butting in,” Baldwin told Collier, “I would like to be kept in touch with your work. Will you see that we get all information.” 9 Collier replied to this initial contact on September 2, saying, “It would be sad if the Civil Liberties Union considered that it need not ‘butt in’ in the Indian situation because the aida Inc. is on the job. We do what we can, and it is the sort of thing the Union would do in our place, but our resources are very small.” Collier wrote that “a good deal more than half the aida income is spent on legal aid, mainly in the Southwest. . . . But how infinitesimal is our service compared to the need.” A correspondence over Indian policy followed, and in 1931 the aclu formed a committee on Indian Civil Liberties and actively joined in the effort to get reform legislation adopted. Indian involvement with government policy at the national level was limited at this time, as noted earlier. None of the groups through which Indians attempted to influence national policy was based on Native American governments, as is the National Congress of American Indians today, and none had a large membership. The most significant of these individual-membership groups, the Society of American Indians (referred to in the previous chapter), had two hundred Indian and four hundred non-Indian members in 1913. It published a journal for several years, beginning in 1913, and attempted to maintain a Washington office for lobbying purposes. For some time its vice president for legislative affairs was U.S. Representative Charles Carter of Oklahoma, a member of the Chippewa Tribe. In 1912, Carter introduced on behalf of the society a bill “to codify Indian law and to determine the precise status of every Indian tribe, its rights, duties and obligations and the rights of individuals of Indian blood whose rights are affected by Indian law.” However, the society was never very effective in Washington, and by 1915 it was “a reform organization which could not achieve reforms.” From 1916 on, its annual conferences were poorly attended; publication of the journal was suspended in 1920.10 Toward the end of its short life, the Society of American Indians was partly led by Gertrude Bonnin, who later founded the National Council of American Indians, an Indian organization claiming to be national in scope that attempted to influence national policy during the 1920s. Bonnin and her husband, Captain Raymond T. Bonnin, were Indians from the Yankton Sioux Reservation. Gertrude Bonnin was an author and published several books about Indian life under her Sioux name, Zitkala-sa. Gertrude Bonnin assisted Mrs. Atwood in forming her Indian Welfare Committee. In 1924, as a research agent of the General Federation of Women’s Clubs, she helped write a pamphlet published by

66

A Fateful Time

the Indian Rights Association that alleged the Five Civilized Tribes had been subjected to “Legalized Robbery” of their lands. She was one of the organizers of the Society of American Indians.11 By 1918 the Bonnins were in Washington, “where she set up the Society’s office in her apartment.” Following the 1918 annual conference of the society, when Captain Bonnin was defeated in a bid to become president, both Bonnins withdrew from the organization.12 In 1926 the Bonnins founded the National Council of American Indians, which survived at least until the mid-1930s. In a petition to Congress in April 1926 the group attempted to speak “on behalf of the Indian citizens of the United States,” but it too never represented Indian governments and apparently never had an individual membership even as large as that of the Society of American Indians at its peak. As Hazel Hertzberg says, “In practice the National Council was kept alive largely by Bonnin and her husband.” 13 For the 1920s and part of the 1930s the National Council of American Indians, usually represented by Mrs. Bonnin, testified before congressional committees, made public statements, and otherwise actively supported Indian rights. Another offshoot of the Society of American Indians was the American Indian Association, founded in 1922. However, “it was largely fraternal and did little to attain its reform goals.” A “women’s organizational offshoot” of this association was the Ojisto Council of New York, which presented statements during the 1934 hearings on the Indian Reorganization Act.14 There is no evidence that any of these Indian groups played a meaningful role in the formulation of national Indian policy from 1920 up to the Indian New Deal. The most effective congressional lobbying by Indians was accomplished by Indian leaders and Indian or other attorneys or lobbyists speaking for Indian governments, who advocated or opposed specific bills affecting one or a few reservations or Native American societies. The campaign to secure legislation on New Mexico Pueblo land and water rights (described in the previous chapter) is an example of this kind of lobbying. Two leaders of the Society of American Indians, Thomas L. Sloan, a member of the Omaha Tribe, and Wisconsin Oneida Dennison Wheelock, were attorneys and sometimes represented tribes before congressional committees. Mead Steele, who represented the Fort Peck Reservation in 1927, and William Madison, another member of the Society of American Indians who represented the Mescalero Apaches in the same year, also spoke for Indian societies before Congress. Few Indian governments had the resources to hire lobbyists, however, and individual Indians could rarely afford to pay their own expenses to go to Washington. Indians who appeared before Congress were mainly tribal representatives with expenses paid by their governments for short periods. However, the

Conflict and Consensus

67

Bureau of Indian Affairs exercised control over this kind of activity, because it ultimately determined whether tribal funds could be used for such purposes. The Klamath Tribe of Oregon may have been the first Native American society with continuing representation over several years in Washington, D.C. Their efforts to secure passage of a bill to allow the incorporation of tribes are discussed in chapter 5. Attorneys for Indian tribes were most often during the 1920s involved in claims litigation, no doubt partly because claims lawyers could take cases without immediate payment. They had the hope of significant compensation —a portion of the award—if the effort was successful and the tribe won the case. Since any suit by an Indian society against the United States at that time had to be preceded by passage of a jurisdictional act giving the consent of the United States to be sued, claims attorneys had to lobby Congress before they could litigate. Jennings C. Wise, a non-Indian claims attorney, went beyond this narrow activity by offering advice on Indian policy in general. In 1925 Wise submitted to Congress a long statement on Indian policy that called for appointment of a commission containing both Indians and non-Indians to find solutions to Indian problems. In 1931 he published The Red Man in the New World Drama, a book on American history from a pro-Indian viewpoint.15 There is no doubt, however, that John Collier was the most effective advocate on behalf of Indians from the early 1920s to 1933; he played an especially important role in creating the consensus that fundamental reform was necessary. Brian Dippie notes correctly that Collier “became in short order the most dominant figure in the area of Indian affairs, and remained so until his retirement in 1945.” 16 There were several reasons for Collier’s leadership in this area. For one thing, as a salaried employee (first of the General Federation of Women’s Clubs and then of the aida) he was able to devote full time to Indian affairs for more than a decade. For another, he was extremely competent, particularly in dealing with governmental figures. Mabel Dodge Luhan, who had introduced him to Indians, described an incident in New York City when an experiment with peyote at her home (when she was still Mabel Dodge) resulted in the disappearance in the middle of the night of one of the participants. Collier was not present but was called to help deal with this crisis, because he knew New York City officials and had a reputation for being able to get things done. She described him in connection with another incident as “the one who knew how to ‘organize’ things” 17 and once referred to him by the vague but highly complimentary term genius. His brilliance was apparent to all who dealt with him. Although his highest earned degree was his high school diploma, he had done graduate work at Columbia University and the College de France in Paris, under Pierre Janet.18

68

A Fateful Time

Collier quickly became well-informed on Indian policy, although of course he did not come close to knowing everything important about all Native American groups. He told an Indian meeting in 1934 that he had read all of the reports of the commissioner of Indian Affairs after 1851; since before 1907 these included numerous letters and reports from agents and superintendents as well as much material prepared by the national Indian Office, this was an impressive claim.19 Collier, as this statement makes clear, was not modest; since he also lacked a sense of humor, it is not surprising that he offended some legislators, who thought him arrogant. But there is no doubt that he was a tireless and effective advocate for Indian causes. Collier was especially good at sniffing out and publicizing abuses of governmental authority. Although he was not solely responsible for it, during the 1920s there was an “orgy of muckraking,” as Downes put it, in a number of national magazines. Walter Woehlke, who later became a top official of the Indian New Deal, was an editor of Sunset, one of the magazines that was highly involved in this effort. Downes observed that “from November, 1922 until June, 1924, [Sunset] had only six issues without at least one leading article denouncing the Indian Bureau.” 20 Survey, Current History, Forum, and other magazines also devoted substantial attention to Indian affairs, most of it criticizing the role of the Bureau of Indian Affairs.

Indian Reform Issues Collier did not hesitate to attack individual officeholders if he felt that they were abusing Indian rights. His strong charges against Herbert J. Hagerman resulted in congressional efforts to dismiss him as a special commissioner to the Navajos and the Hopis. Commissioner Burke was the target of many of Collier’s attacks. Criticism of Burke’s handling of the estate of Jackson Barnett, a Creek Indian who had become wealthy from payments for oil removed from his lands in Oklahoma, combined with the cumulative impact of many earlier attacks on Burke’s performance as commissioner, helped end Burke’s nearly decade-long tenure as commissioner of Indian Affairs.21 There were many issues that justifiably could have been used to discredit Burke and/or his administration of the Bureau. As Lawrence Kelly has put it, “In his willingness to temporize and to make concessions, something to which his long years of service in the House had inured him, Burke clearly demonstrated that he was not prepared to assert the rights of Indians when they clashed with those of whites, and, indeed, that he did not even understand that in most cases the Indians had any rights.” 22 Besides the issues involving the Pueblos that have been noted already, there

Conflict and Consensus

69

were other scandals involving exploitation of Indian resources. In the early 1920s, charges that the bia had seriously mishandled moneys that had come to various Oklahoma Indians from oil or mineral leases on their lands led to a congressional investigation. While no evidence was found to support many of the charges, the investigation did conclude that the Bureau had acted improperly in handling moneys belonging to the Osage Indians, and this led to passage of the Osage Guardianship Act in 1925.23 There was a major controversy over the leasing of oil lands on executiveorder reservations. In addition to raising charges that the Bureau was not protecting Indian rights, this dispute raised the question of the legal status of reservations created by executive order rather than by treaties or congressional statutes. Kelly gives Collier most of the credit for the Indian Oil Act of 1927, the legislative outcome of this struggle. This law, which he calls “the most important single piece of Indian legislation passed in the 1920s,” provided royalties to Indians for oil development on their reservations and also decided that executive-order reservations had the same legal basis as other reservations.24 Several struggles developed over the practice of requiring Indians to reimburse the national government for some expenditures on their behalf (or allegedly for this purpose). This policy applied, among other instances, to irrigation systems built on Indian reservations. Collier and other reformers were able to show that many of these projects benefited non-Indians more than they did Indians and that requiring payment of reimbursable charges often accelerated the loss of Indian lands. For example, Indians testified before the Senate committee investigating the Flathead power controversy (mentioned in chap. 1) that they often could not afford to pay the reimbursement charges and therefore were forced to sell their lands to non-Indians who could pay them. The validity of these allegations is supported by the evidence from the Preston-Engle report (discussed below) that by 1927 only 32 percent of irrigated lands on Indian reservations were farmed by Indians.25 Another irrigation conflict developed over plans of the Rio Grande Conservancy District in New Mexico to reclaim swampland and charge Pueblos for part of the expense. Again, the danger was that the result would be the loss of Pueblo lands. Still another fight erupted over the reimbursable policy when an attempt was made to require Indians to pay part of the expense of the Lee’s Ferry Bridge over the Grand Canyon in Arizona, which served non-Indians primarily, and there were similar conflicts over plans to charge Indians for the costs of other Southwestern bridges.26 The Flathead power controversy was a major issue for several years. There was also the important conflict in 1926 over attempts by the bia to increase

70

A Fateful Time

national control over reservations in an effort to improve perceived law-andorder problems. In the early 1920s, in a dispute in which Collier was only peripherally involved, the Burke administration tried to push through Congress an Omnibus Bill that would have moved significantly in the direction of ending national responsibilities toward Indians by allowing individual tribal members to claim their share of tribal wealth; in many cases, undoubtedly the result would have been loss of Indian land and resources. The bill was killed by Wisconsin senator Robert M. LaFollette. This action presaged cooperation with attempts to protect Indian rights from the small but powerful group of Midwestern and Western Progressive senators.27 Some of the Bureau’s attempts to deal with the rising chorus of criticism made things worse, from its point of view, because of the way investigations were handled. For example, in 1923 Commissioner Burke asked Florence H. Patterson of the American Red Cross to make a report on health conditions among Indians in the Southwest. When she finished her report, Burke refused to make it public, presumably because it showed that health conditions among the Indians were very poor. Collier and other reformers nevertheless managed to find out the contents of the report and used it to swell the criticism against the Bureau, and they also attacked the commissioner for attempting to suppress it.28 The increasing clamor eventually led to a number of investigations disclosing that the forced assimilation policy was not accomplishing its intended purposes. In May 1923, “in response to the national uproar over the Pueblo Indians,” the new secretary of the Interior, Dr. Hubert Work, appointed a National Advisory Committee on Indian Affairs, which became known as the Committee of One Hundred. There were many highly prestigious members of this committee, but when it met in Washington for two days in December 1923 it found itself badly divided between reformers and defenders of the Bureau. While the committee did make a number of reasonable suggestions to improve the administration of Indian affairs, it stayed away from controversial or farreaching policy recommendations; one scholar has labeled its conclusions “innocuous.” 29 Secretary Work then turned for another investigation to the Board of Indian Commissioners, the governmental advisory board established after the Civil War to monitor Indian affairs. Work told the board, “These reiterated charges and counter-charges give rise to a desire on my part to have a competent body of observers such as is to be found in the membership of your board, and unconnected with the Department of the Interior, formulate their views after proper inquiry.” 30 The board’s report was also unsatisfactory and in effect admitted this fact,

Conflict and Consensus

71

urging that a comprehensive study be conducted by a nongovernmental agency. The board said in its 1926 annual report that a “report from a nonGovernment, disinterested organization, with a field force of experts, would carry great weight, not only with Congress but also with the general public.” 31 Secretary Work had earlier requested a study of Indian irrigation projects by two respected experts in this field. The so-called Preston-Engle report provided the basis for improvements in Bureau irrigation policy during the Rhoads-Scattergood administration from 1929 to 1933, although it did not lead to major changes in policy.32 Collier had pressed for an ongoing investigation of Indian affairs by Congress for years. In 1926 one of his first congressional allies, Representative James A. Frear of Wisconsin, had unsuccessfully called for creation of a joint committee to investigate Indian affairs.33 In 1927, the Senate did set up a permanent investigating subcommittee of the Committee on Indian Affairs. The new subcommittee began a series of hearings, which resulted in forty-three volumes of testimony before World War II ended its efforts. These hearings and reports produced a great deal of information about Indian affairs in all parts of the country—the committee conducted hearings in many locations outside Washington—but in terms of policy the results of this prodigious effort were modest. In spite of the fact that the resolution creating the subcommittee had “authorized and directed” it to “make a general survey of the condition of the Indians” in order to make “recommendations for the correction of abuses that may be found to exist, and for such changes in the law as will promote the security, economic competence, and progress of the Indians,” the subcommittee never produced a comprehensive study of Indian policy that could have been used as the basis of significant statutory or administrative reform.34 However, its efforts served to educate the public, but especially a number of senators, about the intricate realities in Indian country. When hearings on the bill that would become the ira were held in 1934, it was no accident that the major changes in this proposal were made by the Senate Committee on Indian Affairs (see chap. 8).

The Meriam Report and Its Impact The comprehensive nongovernmental report requested by Secretary Work finally emerged in 1928 as The Problem of Indian Administration, known more commonly as the Meriam Report after its principal author, Lewis Meriam. This publication was a model of policy studies, for several reasons. It was extraordinarily thorough; within its 847 pages are not only a description of

72

A Fateful Time

how it was produced, a 52-page summary, and a 26-page statement of policy, but also separate sections on the health, education, and general economic conditions of Indians, “Family and Community Life and the Activities of Women,” the status of “migrated” Indians (now usually referred to as “urban” Indians), administrative organization of the Bureau of Indian Affairs, legal aspects of Indian policy, and missionary activities. Moreover, each section of the book rested on the results of thorough documentary research plus extensive on-site visits to reservations by nationally recognized experts. The Institute for Government Research (later named the Brookings Institution) had secured ample funds from private sources to permit each of ten experts to spend at least a year on the project; Meriam, who coordinated the entire effort, spent nearly a year and three-quarters on it.35 Between them the survey staff made a total of 395 visits to 95 jurisdictions in 22 states; on the reservations, they met not only with agency staff members but also with Indians, usually in “councils” requested by Indians, and also with missionaries, Indian traders, officials of state and local governments, and friends of the Indian. They also visited hundreds of Indian homes; an incomplete table showed 519 home visits by five staff members. There were only 15 jurisdictions that were not visited by at least one member of the research staff, and only one state with an agency (North Carolina) was not visited at all. The caliber of the members of the survey staff was impressive; between them they listed twenty-one undergraduate or graduate degrees, and all had had substantial successful experience as researchers. Meriam was an economist who had also earned two law degrees and spent ten years as a researcher for the Census Bureau and the Children’s Bureau; he had been a staff member of the institute since 1916. Other researchers included Fayette A. McKenzie, a non-Indian sociologist who had been one of the founders of the Society of American Indians and had served as president of Fisk University for eleven years; Mary Louise Mark, a professor of sociology at Ohio State University who had worked for the U.S. Immigration Commission, the Census Bureau, and the Bureau of Labor Statistics; W. Carson Ryan Jr., a professor of education at Swarthmore College who had earned a Ph.D. from George Washington University, taught for eight years in universities, and been employed by the U.S. Office of Education for eight years; and Edward Everett Dale, professor of history at the University of Oklahoma, who had earned his Ph.D. at Harvard. Dale had also been a superintendent of schools; after his work on the Meriam Report, Dale wrote a book on Indians in the territories acquired from Mexico.36 Five other experts from various areas contributed to the study. The institute decided early in the planning stage to have what is now recognized as token Indian membership on the survey staff. Ultimately it was decided “to have a single Indian adviser for the entire work of the survey.”

Conflict and Consensus

73

Nothing was said about why other Indians could not be considered, but this decision restricted Indian influence on the staff. The person chosen was a Presbyterian minister, the Reverend Henry Roe Cloud, who in 1915 had founded the American Indian Institute, a private high school for Indian students in Wichita, Kansas. A Winnebago Indian born in Nebraska, Roe Cloud had earned a bachelor’s and then a master’s degree from Yale University and a bachelor of divinity degree from Auburn Seminary. The report said that he had been “mentioned among the outstanding representative Indians by all who were consulted on this appointment,” as well as the government officials they consulted. The report says that “his particular achievement . . . was in establishing contact with the Indians.” In notifying Indians of visits by the survey staff, “the fact was featured that the staff included one Indian.” 37 However, the report contained no chapter on Indian viewpoints and apparently no chapter written by Red Cloud, unless he wrote the chapter on missionaries. In addition to the substantial credentials of the survey team and the large amount of time they had for their work, the staff members had been chosen for their independence from the government. Secretary Work’s letter asking the institute to do the study had said that “it should be conducted by persons selected because of their impartiality and special qualifications” so that its report would “command the confidence of those concerned, the government officials, the Indians and the general public.” 38 The institute decided not to hire any bia employees or anyone with extensive experience as a Bureau employee; McKenzie’s year as a teacher on the Wind River Reservation did not disqualify him. It was also decided not to hire anyone for the legal aspect of the study “who had been actively engaged in Indian cases either before the courts, the Department, or Congress,” because of the possibility that such experience could lead to a “charge of bias.” In this case the result was unfortunate, since the attorney secured necessarily knew little about this complex and intricate body of law. In addition, the Bureau was not asked to nominate candidates for positions, although the names of proposed survey staff were submitted to it for comment. It was reported that “in no case was any objection raised by any officers of the Department to any of the names submitted by the Institute.” 39 Finally, it is apparent that an early decision was made to concentrate on understanding basic conditions and the circumstances responsible for them rather than investigating Bureau failings and attempting to fix individual or organizational responsibility for them. It was decided to seek out for the research staff persons who were “scientific in their approach, not sensationalist,” as the report put it. Consequently, although the report is sometimes strongly critical of existing practices, it does not attack individuals and makes constructive proposals. As one scholar has written, “The Meriam Report was

74

A Fateful Time

a masterpiece of reform propaganda in the best sense of the word. Its highminded scientific accuracy was never seriously questioned. Its non-controversial tone commanded the respect of both supporters and critics of the Indian Bureau.” 40 Because of these characteristics of the Meriam Report, but also because of its later impact, its conclusions are worth detailed study, particularly the portions dealing with Indian self-government. Such a detailed look is also desirable because it has been suggested (see below) that it laid out a blueprint for the Indian New Deal and the Indian Reorganization Act. A preliminary note about the way the report was written is necessary. Each staff member was appointed to head a subject-matter committee and draft the report on this subject; the draft was then circulated to all other researchers for comments. Presumably the general chapters, especially the long summary chapter, were drafted by Meriam. No attempt was made to eliminate all duplications or differences in points of view; the report contains inconsistencies, as does the summary chapter. The first sentence of the summary chapter stated perhaps the most basic conclusion of the Meriam Report: “An overwhelming majority of the Indians are poor, even extremely poor, and they are not adjusted to the economic and social system of the dominant white civilization.” 41 The evidence for Indian poverty was marshalled impressively in the chapter on economic conditions, written by Dale. Although it was admitted that data regarding Indian income were not as precise or complete as might be desired, it was clear that per capita incomes on reservations were very low. Of 188,363 Indians for whom data were provided, only 2.2 percent had incomes of $500 a year or more; 89.2 percent had incomes below $300 a year. It was admitted that “in some instances undoubtedly the value of some wild products used by the Indians as food or for other household purposes have [sic] not been included” (447). Even taking this factor into account, however, the depth of Indian poverty was startling. The material on poverty in the chapter on community life and women, written by Mary Louise Mark, goes beyond descriptive facts to discuss the interrelation of poverty with poor health, bad housing, and inadequate diet—what she called a “vicious circle” of poverty. Meriam picked up this theme, writing on the first page of the summary chapter of the “vicious circle of poverty and maladjustment.” To illustrate how poverty was interrelated with other factors, it was noted in the summary chapter that “the health of the Indians as compared with that of the general population is bad,” that “both the general death rate and the infant mortality rate are high,” and that both tuberculosis and trachoma were much more prevalent among Indians than in the general population. The summary chapter then went on to say, “The prevailing living condi-

Conflict and Consensus

75

tions among the great majority of the Indians are conducive to the development and spread of disease” (3). In discussing Indian poverty and the interrelated causes of suffering, the summary chapter noted that the basic problems resulted from the treatment of Indians by non-Indians, including the government. “The economic basis of the primitive culture of the Indians has been largely destroyed by the encroachment of white civilization,” it stated, adding that they “are by no means yet adjusted to the new economic and social conditions that confront them” (6). Two specific government practices were mentioned especially as explanations for poverty. One was the continuing practice of issuing rations to Indians, which was criticized on the ground that it gave the Indians no incentive to work to support themselves. No mention was made of the fact that in many cases this practice had been mandated by treaties. More important, it was found that the allotment policy, the cornerstone of the national government’s policy toward Indians for half a century, had failed. The summary chapter stated, “It almost seems as if the government assumed that some magic in individual ownership of property would in itself prove an educational civilizing factor, but unfortunately this policy has for the most part operated in the opposite direction.” In practice the allotment policy had deprived Indians of land; it was also pointed out that the policy had subjected many Indians to increased control by Bureau personnel (7, 461). The principal conclusions of Meriam’s summary of allotment were that few Indians had become successful farmers and that “the typical Indian . . . has not yet advanced to the point where he has the knowledge of money and values, and of business methods that will permit him to control his own property without aid, advice, and some restrictions; nor is he ready to work consistently and regularly at more or less routine labor” (8). While this formulation of the question accepts the notion that Indians should have adapted to individual farming on what was presumed to be a white pattern, its most important conclusion is that more than four decades after allotment had become a general policy, in fact they had not made this adaptation. On the key question of whether the goal of government policy should continue to be to assimilate the Indians or to recognize their right to have their own cultures, the Meriam Report presents differing opinions, a result that is not surprising given the fact that it was a committee product. There were clear statements in the general portions (presumably written by Meriam) that recognized the validity of continuing Indian cultural differences. A statement at the beginning of the summary chapter asserts that government Indian policy should have a dual goal: It should aim to prepare Indians “so that they may be absorbed into the prevailing civilization or be fitted to live in the presence of that civilization at least in accordance with a minimum

76

A Fateful Time

standard of health and decency” (21). This dual goal is repeated later in the chapter entitled “General Policy for Indians,” also presumably drafted by Meriam, which states that “some Indians proud of their race and devoted to their culture and their mode of life have no desire to be as the white man is. They wish to remain Indians, to preserve what they have inherited from their fathers, and insofar as possible to escape from the ever increasing contact with and pressure from the white civilization. In this desire they are supported by intelligent, liberal whites who find real merit in their art, music, religion, form of government, and other things which may be covered by the broad term culture” (87). The chapter went on to say that the survey staff “would not recommend the disastrous attempt to force individual Indians or groups of Indians to be what they do not want to be, to break their pride in themselves and their Indian race, or to deprive them of their Indian culture.” It noted, however, that some changes among Indian societies might be necessary, because the “advancing tide of white civilization has as a rule largely destroyed the economic foundation upon which the Indian culture rested” (87). Noting also that there were Indians wanting to follow “the white man’s path” even among the Pueblo Indians, this chapter stated that “these Indians are as much entitled to direct their lives according to their desires as are the conservative Indians.” The general policy orientation was that an Indian who wanted to “merge” with the wider society should be assisted in making the transition but that “he who wants to remain an Indian and live according to his old culture should be aided in doing so” (88). Other members of the survey team were still solely assimilationist in terms of long-range goals, however, and sometimes the general portions of the study displayed an ambivalence on this question. The chapter on education, for example, is clearly assimilationist in tone; it was written by W. Carson Ryan Jr., who in other places said that the purpose of national Indian policy should be to assimilate the Indians.42 The chapter on migrated Indians states that “the primary duty of the government in dealing with its Indian wards is to aid them in adjusting themselves to white civilization.” The summary chapter predicts that “the Indians will ultimately merge with the population of the states wherein they reside” and that it might be possible to abolish the Bureau of Indian Affairs in thirty or forty years (673, 20, 51). Some of these evident discrepancies in viewpoint may be accounted for by the assumption that the sometimes-stated premise of the researchers was that temporary recognition of the validity of Indian cultures rather than outright assault on them might be the most effective way to assimilate Indians. The chapter on missionary activities, for example, whose author is not given, argues that sympathetic understanding of Indian religion and ethics “is in-

Conflict and Consensus

77

dispensable if the race is to be won to Christianity,” because “by the practice of condemnation of all things Indian, the Indian is rendered hostile, and in self-defense clings all the more tenaciously to his religion” (845 – 46). When the Meriam Report is read to determine its attitude toward Indian self-government, there are similar differences in point of view, although nowhere is there a proposal to strengthen Native American governments. The attitude of the survey team as a whole is suggested by the fact that there is no evidence of a systematic attempt to determine the views of Indian governments; apparently only individual Indians were contacted for information, even if they were assembled in council. The summary chapter does not discuss the question of self-government by Indians. The most extended discussions are found in the legal chapter and in the chapter on community life, by Mark, where the conclusion is reached that in many cases Indian governments had largely disintegrated. Mark wrote, Indian social structure tends to break down instead of adapting itself to the conditions of civilized life. . . . Government control has, moreover, operated to break down native forms of organization. The forcible removal of whole tribes to very different physical environments resulting in the disruption of economic life, the detention of large groups as prisoners of war for long periods, the common discouragement of Indian leadership on the reservations and in the government schools, the disrespect of white employees for native customs and ceremonies, and the assumption on the part of teachers and others in the schools that all Indian ways are bad ways, have tended to break down native social structure. Primitive organization gradually gives way in the face of white civilization and nothing takes its place. (548 – 49) These factors are among those noted in the previous chapter; undoubtedly Mark was correct in identifying some of the forces working against the strength of Native American governments. The question is the extent to which these forces had by that time destroyed such governments, leaving “nothing” to replace them. Apparently Mark believed that destruction of Indian governments was nearly complete. Later in the chapter she wrote, “With the single exception of the Pueblo form of government, the Indian council and the Indian court represent about the only approach to civic life that the Indians have. Neither the council nor the court is to be found everywhere; many Indians have no form of organization” (633). Mark recommended that the bia deal more with “community organization,” but clearly governments exercising sovereignty were not what she meant. She wrote mainly about groups organized for specific purposes. The chapter makes this comment about governmental structures: “The Indian

78

A Fateful Time

court and the Indian council could be made powerful means for creating public opinion instead of mere forms of congregate activity tolerated by the officers” (636). The general assimilationist orientation of the chapter is clear from the statement that “as an administrative device community organization would in the long run prove economical. . . . Once the Indians can take care of themselves this branch of the government service may be discontinued” (636). Two of the chapters questioned or condemned the practice of the government’s spending of tribal funds for administrative expenses of the Bureau without securing Indian consent to this practice, although no means of securing this consent were suggested (482, 580 – 81). Dale recommended “thorough mature consideration” of the idea of chartering Indian corporations, suggesting that such a device might be a desirable way to utilize “tribal property that consists of great natural resources which cannot be economically administered or developed in small allotments” (462). The only specific possibility of incorporation that he noted was its use for managing timber. He discussed the Klamath, Menominee, and Quinaielt forests specifically, reporting that the “intelligent progressive” Indians, especially at the Klamath Reservation, had proposed to the survey staff “the immediate sale of all the timber and distribution of the proceeds, thereby permitting competent Indians to have immediate possession of their capital assets” (463). This approach was taken by the first Klamath incorporation bill introduced in the Congress (see chap. 5), although it was not the principle embodied in the incorporation bill actually considered by Congress. Dale recommended against such a policy on several grounds, including that it would dissipate the Indians’ assets. In explaining his viewpoint, Dale recounted the experiences of the Indians on the Quinaielt Reservation in Washington state with allotment of timber lands. The Dawes Act had provided only for allotment of agricultural and grazing land, but in a suit brought by “a member of the Quileute tribe of Indians,” the U.S. Supreme Court ordered that this reservation’s timber lands be allotted. The result for this reservation, Dale wrote, was that “after the timber is gone their allotments have little value. They are poor for a while, then momentarily rich, and often finally poor again” (466). To avoid this result, Dale suggested setting up a tribal corporation, with individual Indians having shares in the company. He was not willing to go very far in the direction of allowing Indians to control their own economic resources, however. He recommended that a majority of the board of directors of the corporation, “at least for a good many years after the inception of the experiment,” should be government officials “operating under acts of Congress and regulations” made by the Department of the Interior and the Indian Bureau. Moreover, he would have allowed Indians to sell their shares of stock,

Conflict and Consensus

79

including voting rights attached to them, to non-Indians; eventually, this could have led to white control of the corporation (463 – 64). Meriam’s summary chapter repeats Dale’s main recommendations, suggesting “an experiment . . . with the modern business device of the corporation” for managing the Klamath and Menominee timber lands. He wrote, “It is believed that the business committee of the Klamath Indians is made up of Indians sufficiently advanced to profit from the experience and to contribute to its success” (42 – 43). There is little mention anywhere in the Meriam Report of specific tribal governments. The chapter on community life and women discusses two cases of factional conflict on reservations. In one instance, conflict was described as arising out of “church differences”— disputes between followers of nonIndian religious groups. This passage also mentioned a situation in which religious differences played a small role in another society where “each of two rival factions claims to be the duly elected government and they cannot work together on the essential community enterprises” (844). Not enough information is provided about either case to shed light on these situations, however. Attorney Ray A. Brown’s chapter on legal aspects of Indian policy is the most completely assimilationist portion of the report. The institute, it has been noted, deliberately sought an expert for this task who had not been involved with Indian legal questions before. Brown was one of two key researchers who made few visits to reservations; he visited eleven agencies in eight states (64 – 65). He was an assistant professor of law at the University of Wisconsin, with law degrees from the University of Minnesota and Harvard Law School. Brown had practiced law privately for five years in Minnesota and had taught for two years at the University of South Dakota before moving to Wisconsin in 1923. Brown began by assuming that Indian governments were mostly a thing of the past; he wrote that “the tribal organization, on which was predicated a large measure of Indian self-government, has largely vanished except in some of the pueblos and in a few other closed reservations.” 43 However, there was no documentation to support this sweeping conclusion. He certainly did not have many opportunities to observe political life firsthand while doing research for the report; since he had not worked on cases involving Indians before, presumably his contact with Native American societies was quite limited before he joined the survey staff. The most important conclusion related to Indian self-government reached by Brown was that the collapse of Indian governments, combined with limited national jurisdiction and the almost total absence of state jurisdiction, meant that no criminal law at all applied to many areas of most reservations. For example, he wrote that “it is apparent that there is a great gap in the power of

80

A Fateful Time

both United States and state courts to punish Indians for committing on Indian lands acts which would be considered in most communities serious public offences [sic].” He asserted that “the domestic relations of the Indians are left almost entirely to their own determination,” the result of which was “unsatisfactory.” Brown’s solutions for this perceived vacuum, especially in criminal law, were various. He saw a need for flexibility but did not suggest the possibility of strengthening or restoring Indian governments as an option. Because Indian societies differed from each other, he recommended against a uniform national statute and instead suggested that Congress “delegate its legislative authority through a general act to an appropriate agency, giving that agency power to classify the several jurisdictions and to provide for each class so established an appropriate body of law and a suitable court system.” Brown’s overall aim was to extend non-Indian law over Indians. For minor criminal and civil matters, for example, he recommended continuation and elaboration of the Courts of Indian Offenses, even though he recognized that these had no statutory authority. He did not mention the argument that Congress lacked constitutional authority to establish such agencies. Brown considered the charge that the Courts of Indian Offenses were “dominated by the superintendents.” While he admitted that this was true in some cases and even noted that there were ten reservations where the courts had been “abandoned and the superintendent himself has assumed the role of judge,” he did not consider this a sufficient drawback to justify abolition of the courts. In fact, he concluded that they should be used more widely because they were informal and inexpensive. However, he recommended that superintendents should have the authority to transfer cases involving individual “Indians who are disorderly, unamenable to ordinary discipline, and even vicious” from Courts of Indian Offenses to state courts. Brown also recommended substantially extending state laws over Indians, particularly those “widely scattered” so that Bureau administration of their affairs was difficult, plus “those advanced groups . . . able to regulate their conduct and to preserve their property interests.” His reason for this recommendation was that all Indians were destined to become assimilated. He wrote, “Eventually all indians in the United States will be assimilated into our social, economic, and political life, and therefore it is highly desirable that the law and the system of administering the law applied to them shall educate and prepare them for a final and complete subjection to the system of Anglo-Saxon jurisprudence under which the American people live today.” However, because of the necessity to protect individual Indian property rights (Brown thought that the national government had a very strong obligation in this area) he would not have transferred jurisdiction over property law

Conflict and Consensus

81

to state courts. Further, he suggested that, to protect the Indians, “some organized system of legal aid should be provided for the ignorant and needy among them” when they were involved in either criminal or civil litigation in state courts. Finally, Brown suggested an extension of the authority of national district courts over Indians in some cases, but that in these instances the judges should apply state law. He also set forth detailed recommendations about how the national government could be more effective in protecting allotted Indian lands. He had harsh words for past failures to provide effective protection for such lands, especially in Oklahoma, and recommended speeding up the piecemeal determination of Indian claims against the government. Meriam’s summary chapter mirrored Brown’s recommendations, with emphasis on his defense of the Courts of Indian Offenses and the desirability of extending state law to Indians (16 –19). The legal portions of the Meriam Report, in other words, contained no recognition of the unique legal status of Native Americans and displayed no interest in preserving Indian self-government in any form. In fact, its recommendations were to massively extend non-Indian law and legal institutions over Indians, which could only have had the effect of taking away most legal jurisdiction that remained to Indian governments at that time. Since there were Indian attorneys practicing at this time, one of them could have been used for the study, so the question arises why this was not done. Presumably the decision to exclude anyone with prior experience with Indian law ruled out both a legal consultant who understood the principles of Indian law and the hiring of an Indian attorney, since all possible candidates practiced in this field. In 1932 Brown collaborated with Mary Louise Mark, Henry Roe Cloud, and Lewis Meriam to produce a report going into more detail on how to extend non-Indian law over two groups of Indians in the West and Northwest. For Indians determined by the Bureau of Indian Affairs to be essentially assimilated, this report recommends extending state law. For less assimilated Indians, it proposes altering the Courts of Indian Offenses, which would deal with minor offenses, but also utilizing state laws and extending the jurisdiction of national courts for more serious cases. To achieve the latter end, promulgating a new national code (to be enacted by Congress) dealing with misdemeanors involving Indians was recommended; the report included a draft bill.44 The assumption that Indians had to be assimilated was, if anything, even stronger in this report than in the Meriam Report. It asserted, “In the area covered by this study the old Indian culture has almost entirely disappeared. The old Indian form of government has gone, tribal authority has broken down, Indian customs and Indian laws are no longer effective.” For these reasons, it

82

A Fateful Time

recommended that Indian marriage and divorce laws be replaced by state laws and that the Indian judges of the Courts of Indian Offenses be reduced to associate status, on the ground that they could not enforce state laws. The failure of the Meriam Report to endorse or give serious consideration to the policy of strengthening Indian self-government is evident when its overall recommendations are examined. Basically, these were to continue the trust relationship of the national government, to modify but not eliminate the allotment policy, and to increase significantly the size and efficiency of the Bureau of Indian Affairs. These proposals amount to the ideology called here administrative reform, rather than to one of strengthening Indian self-government. This is also the view of Donald T. Critchlow, although he made no special study of the Meriam Report from the standpoint of self-government. Critchlow concluded that “the central message of the report” was that “conditions among Indians could be improved through better administration and better personnel in the Indian Service.” He pointed out that both the Institute for Government Research and Meriam had been and were later chiefly “concerned with efficiency and expertise.” 45 The most fundamental problem with the Meriam Report is that its authors were still operating within the “civilized/savage” framework for viewing the relations of the general American society with Native American ones. Even scholars trained to be objective cannot avoid being influenced by their deepest beliefs. The fundamental conception that Indians were at a lower level of societal development is evident in many places in the study and is stated clearly in the final sentence of the summary chapter: “It would be something of a national atonement to the Indians if the closing chapters [of this relationship] should disclose the national government supplying the Indians with an Indian Service which would be a model for all governments concerned with the development and advancement of a retarded race” (51).

The Administrative Reform Ideology Former Commissioner Francis Leupp, who had worked for the Indian Rights Association before heading the Bureau of Indian Affairs, wrote in his book The Indian and His Problem that “the Indian problem has now reached a stage where its solution is almost wholly a matter of administration. Mere sentiment has spent its day; the moral questions involved have pretty well settled themselves. What is most needed from this time forth is the guidance of affairs by an independent mind, active sympathies free from mawkishness, an elastic patience and a steady hand.” 46 This was the basic viewpoint of the administrative reform ideology at that

Conflict and Consensus

83

time, combined with minor tinkering with laws, regulations, and administrative agencies. In the Meriam Report this ideology is for the most part combined with the goal of assimilation. In spite of the clear documentation of the facts that the allotment policy had deprived Indians of much of their land and had not aided them economically or speeded the assimilation process, the Meriam Report did not call for its abolition. The general policy chapter recommended only that “the policy of individual allotment should be followed with extreme conservatism,” that “leasing of Indian lands should be materially curtailed,” and that the national government should refuse to sell most lands in heirship status and should purchase heirship lands to provide allotments to needy Indians (40 – 41, 47– 48). The thrust of the proposals on allotment was that the national government should live up to its trust responsibilities by protecting the individual property rights of Indians. The summary chapter recommended that the bia “protect to the utmost the rights and interest of the Indians” and therefore the legally mandated trust responsibility of the national government (referred to as guardianship) should be continued indefinitely. However, the chief concern behind this important recommendation was the protection of the private property rights created by the allotment policy until the Indian “is economically on his feet and able to support himself by his own efforts” (41). For example, it was suggested that the proceeds from sale of allotted lands that had passed out of trust status “should be expendable only for land or for other productive purposes.” A government “revolving fund” was proposed to purchase such lands as one source of money to buy new allotted lands for other Indians (41). This is the source of a provision that finally became part of the Indian Reorganization Act, although not for the purpose of continuing allotment. Another recommendation was that state taxation be gradually extended to Indians. The summary chapter stated that “it is essential that the Indians be educated to utilize the services furnished by local and state governments and that they learn the obligation to contribute to the support of these activities. On the other hand, the educational process should be gradual and the relationship between benefits received and tax payments therefor should be obvious” (43). Combined with the proposals in the legal chapter for extending state and national legal control over reservations, the effect of this proposal would have been to reduce tribal self-governing authority, although gradually. Certainly the subjection of Indian property to state taxation would have accelerated the process of loss of their lands, a major reason for Indian poverty. Many of the recommendations of the Meriam Report were intended to

84

A Fateful Time

reduce Indian poverty, chiefly by enlarging the role of the bia, with the hope that this would be necessary only in the short run. The premise of these recommendations was that the Bureau could do effective work to reduce poverty but that “the Indian Service is traditionally a starved service,” as the chapter on community life put it. Evidence to back up the assumption about past support of the Bureau was amply provided. For example, it was reported that government boarding schools were spending only 11 cents per day per pupil for food, and that because these schools had inadequate funds, students typically were spending half of each day working to support themselves (605, 11–13). The report conceived the Bureau’s chief purpose to be an educational one, in a very broad sense of that term. Criticizing the “absence of any well considered, broad educational program for the Service as a whole,” the summary chapter proposed such a program and explained that “the word education is used in its widest sense and includes not only school training for children but also activities for the training of adults to aid them in adjusting themselves to the dominant social and economic life which confronts them. It embraces education in economic production and in living standards necessary for the maintenance of health and decency” (9, 23 – 37). The summary chapter suggested a number of means to improve the Bureau’s capacity to serve this educational purpose. The creation of a Division of Planning and Development was proposed, with an appropriation of $250,000, to add technical and scientific skills to the Bureau’s administrative skills and shift its focus to long-range planning. It was suggested that this division could work with state and local authorities and missionary and other philanthropic organizations to find new ways to meet Indian needs and could also handle some kinds of complaints. It was also recommended that the addition of a statistician would aid the division’s work. A general upgrading of Bureau personnel was suggested: raising salaries, providing better living and working conditions for employees, improving the retirement system, establishing two personnel officers in Washington, and decentralizing field operations. In addition, more employees were recommended in several areas, such as medical work and education in the narrow sense (23 –25). Capital improvements of various kinds were also proposed. It was admitted that implementing these proposals might call for doubling national expenditures on Indian programs in the short run. “Conceivably, for several years, the additional amount required will be almost as much as the present appropriations.” However, it was suggested that more effective Bureau programs might permit savings in five to ten years, “as more and more Indians become self-supporting by their own efforts and as progress is made in getting the states and local governments to render the service necessary for Indians in return for taxes paid by the Indians” (50).

Conflict and Consensus

85

Again, in spite of the earlier statement in the summary chapter in favor of cultural pluralism, the thrust of the recommendations clearly was that the national government needed to become more effective in assimilating Indians into American life. The summary chapter concludes with this endorsement of the goal of the termination ideology, although without any time frame: “The belief is that it is a sound policy of national economy to make generous expenditures in the next few decades with the object of winding up the national administration of Indian affairs” (51). The Meriam Report was chiefly a major force for reform of Indian policy because it established authoritatively that governmental policy had not accomplished its objectives. The allotment policy’s impact on the loss of Indian lands was thoroughly documented, for example. The report was especially effective in making clear the poverty of most Indians, with the interrelated clear evidences of serious health and other problems. Previously, the Bureau had denied that the Indians were faring so badly, and even some people active in Indian affairs were unaware of the facts. For example, in 1924 Flora Warren Seymour, a member of the Board of Indian Commissioners, wrote that if Helen Hunt Jackson, the nineteenth-century author of A Century of Dishonor, were alive today she “would find the Indian richer in money, and far better endowed with land, man for man, than the white; she would find him provided with educational opportunities of wider scope than the public generally; she would find a hundred evidences of his position as the favored child of the nation.” 47 After the Meriam Report, such nonsense was no longer believable. The Meriam Report did not, however, propose bold new policies to reverse conditions. Although it identified basic problems, in no instance did it recommend abandonment of the failed policies. Instead, what was proposed was tinkering with a few of these policies and making major improvements to the government agency that had done such a poor job previously. While there were a few indications in the report that Indian cultures might be worth saving, its principal orientation (in parts of the book its sole viewpoint) was still that Native Americans should become assimilated into the general American culture, whether this was what they wanted or not. In brief, the underlying ideology of this report was a combination of forced assimilation with administrative reform; what was needed was more effective pursuit of the various means of forcing Indians to give up their commitment to values and cultural practices they had inherited in favor of the “civilized” values and practices of contemporary American society. Of most importance for the concerns of this book, the report did not recommend strengthening Indian governments, which would have enhanced the capacity of Indians to make their own decisions and carry out programs to reach

86

A Fateful Time

the goals they themselves set. In the legal area, it advocated such far-reaching extension of non-Indian law over Indians that there would have been almost no jurisdiction left to Indian governments. Although there is no reason to believe that all members of the staff that produced the report were agreed on everything, a major reason for this conclusion clearly was the perception that Indian governments had almost entirely disappeared, leaving a governance vacuum that, by implication, the Indians could not fill. The report did endorse the idea of incorporating Indian tribes in some cases, but not in a form that would have meant greater control by Indians. The idea of incorporation, which had been brought to public attention by the Klamath Tribe of Oregon, is discussed more fully in chapter 6.

Termination as an Alternative At the same time, the Meriam Report also did not recommend abolition of the national government’s legal responsibilities toward Indians—guardianship—although it suggested that this might be possible in several decades if in the short run the national commitment of resources in this area were doubled. In other words, it did not embrace the policy that in the 1950s was called termination. Other voices had been raised in favor of termination during the 1920s, however, and a brief examination of this viewpoint will illuminate the difference between termination, forced assimilation, and administrative reform. These policies appear similar on the surface, because all (in forms examined so far) aimed at converting Indians into non-Indians and because all sought the eventual demise of distinctively Indian societies and of the agency that dealt with them. However, their practical import is significantly different. During the administration of President Woodrow Wilson several senators had introduced termination bills. The House Committee on Indian Affairs, led by Representative Melville C. Kelly of Pennsylvania, pushed what in effect were termination bills in the early 1920s,48 and one of Commissioner Burke’s proposals—the Omnibus Bill—would have had a terminationist thrust. But these efforts were not given serious attention by Congress. The two best-known proponents of the termination ideology during the 1920s, Captain Richard H. Pratt and Dr. Carlos Montezuma, both died in middecade. Joseph W. Latimer continued to advocate their views, but he was an obscure figure in comparison with them. Dr. Montezuma was a physician who was born a Yavapai, although he believed most of his life that he was an Apache. He served as a bia physician on various reservations for eight years, then went into private practice in Chi-

Conflict and Consensus

87

cago. He was intermittently active in the Society of American Indians. From 1905 to the end of his life, Montezuma campaigned for abolition of the Bureau of Indian Affairs and the reservation system. His involvement with the Society of American Indians was discontinuous because not until 1918, after its decline, did the society adopt his terminationist viewpoint. In describing the conference that adopted this policy position, Dr. Montezuma wrote in his newspaper, Wassaja, that it “closed with the determination of having the Indian Bureau abolished, to set the Indian free, so that they may have the rights and privileges of citizenship.” Montezuma was a complex figure, however; he voluntarily returned to reservation life and in practice worked in his later years to help Indians on his reservation.49 Pratt was an army officer whose last military assignment was as a jailer for a group of Indians imprisoned at Fort Marion, Florida, from 1875 to 1878. His contact with this group of Apaches led to his efforts to educate Indians, and his subsequent career was identified with Indian education. He was the founder of Carlisle Indian School in Pennsylvania, serving as its superintendent for twenty-four years. Carlisle, the first and largest of Indian boarding schools during the nineteenth century, graduated many of the assimilationistoriented leaders of the Society of American Indians. Pratt and Montezuma became acquainted before Montezuma served a tour as school physician at Carlisle, and they were close collaborators for many years.50 Pratt’s views were thoroughly and systematically developed, and he worked tirelessly to spread and implement them. His analysis began by rejecting racism, in dealing both with Indians and with another racial minority, at that time usually called colored or Negro Americans. He insisted that both of these races were fully capable of achievements as great as those of white Americans, and he insisted also on full legal equality for both. (Before his involvement with Indians he had been an officer in one of the black cavalry units that served in the West after the Civil War.) Nevertheless Pratt regarded Indian cultures as savage and the American society of his day as civilized. As he saw it, Indians needed to slough off their “primitive” cultures and learn the ways of civilization in order to realize their inherent capabilities. He had no doubt that they were eager to move in this direction and that boarding schools were the ideal way to speed the process. For Pratt the Declaration of Independence was operative fundamental law supplementing the federal Constitution—particularly the Fourteenth Amendment—and he believed that both these documents required identical treatment for blacks and Native Americans. He wrote in his memoirs, in his quaint but forceful style, that “if enforced, the Declaration of Independence and the Constitution of the United States, as they read, amply provide the complete and economical cure for our every Indian trouble. . . . It is self-evident that the

88

A Fateful Time

greatest glory to government and highest beneficence to the Indian was to be achieved in at once transforming him into a capable, coordinated citizen, able as such to live and thrive among us without special control over him and his property.” 51 To him the reservations were impediments to Indian progress toward civilization because they isolated Indians from the society around them and because they permitted retention of the savage aspects of Indian life. I suppose the end to be gained, however far away it may be, is the complete civilization of the Indian and his absorption into our national life, with all the rights and privileges guaranteed to every other individual, the Indian to lose his identity as such, to give up his tribal relations and to be made to feel that he is an American citizen. If I am correct in this supposition, then the sooner all tribal relations are broken up; the sooner the Indian loses all his Indian ways, even his language, the better it will be for him and for the government and the greater will be the economy to both.52 This program required what Pratt saw as the proper type of Indian education—boarding schools like Carlisle, where the Indians’ “removal and personal isolation” from tribal life could be guaranteed. Such an educational system, along with the granting of citizenship to Indians and the abolition of reservations and any laws treating Indians differently from any other citizens —such as those protecting Indian property against state or local taxation— were the speediest ways to bring Indians to civilization. Pratt came to see the Bureau of Indian Affairs as the chief impediment to the program to civilize Indians. He bluntly charged that “the government-salaried denizens in the Indian and Ethnological bureaus saw their occupations vanish with every development of the Indian into the ability of citizens.” He became convinced that immediate abolition of the Bureau was necessary and his advocacy of this conclusion in a public address played a role in his being involuntarily relieved of his duties as superintendent of Carlisle in 1904.53 The differences between Pratt’s approach and the forced assimilation policy are neatly displayed in a copy of a speech on Indian policy by Assistant Commissioner Meritt, which has survived in the National Archives with notations by Pratt. The speech was delivered by Meritt before the Maryland Federation of Women’s Clubs on November 1, 1922, and was printed, in slightly altered form, in hearings on Indian courts in 1926.54 Meritt began by quoting Thomas Jefferson to establish that the ultimate goal of Indian policy was assimilation. Jefferson had written that Indians and whites should “become one people. Incorporating themselves with us as citizens of the United States is what the natural progress of things will bring on; it is better to promote than retard it.” Pratt wrote under this that he would like

Conflict and Consensus

89

to know “when and where the Indian Bureau has ever ‘promoted’ a ‘blending’ of the races, or aided the ‘incorporating themselves (the Indians) . . . ‘with us as citizens.’ Hiring Indians with the people’s money to hang together tribally, segregated away from all participation in our American life has plainly been the purpose and the result of all Bureau devisings for the last 18 years.” Meritt had stated, “Under constitutional authority and since the foundation of our Government the Indians have been treated as wards of the Government and the United States has acted as the guardian of all restricted Indians.” Pratt wrote in response to this, “‘Restricted’ presumes a restrictor, who unrestrained easily assumed absoluteism from which there is scarce appeal.” Meritt, whose speech was written before the 1924 citizenship statute, asserted that two-thirds of Indians were already American citizens and that “the doors to citizenship” were open to all Indians through participation in the allotment program. However, he had also noted the Supreme Court’s decision in United States v. Nice (discussed in chap. 2) that “citizenship is not incompatible with tribal existence or continued guardianship.” Pratt replied to this that Indians could not become genuinely American citizens as long as the Bureau continued to control them and that “practically all Bureau influences including its schools are an influence to remain tribal, and therefore a suppression of the aspiration of Indians for American citizenship. This fully explains the long delay and slow progress in consummating the Indian’s transformation into civilization and citizenship.” Meritt specifically attacked in his speech the advocates of outright abolition of the Bureau, saying that the “considerable propaganda going on against the Indian Bureau for the purpose of releasing all Indians from Government supervision” was “fostered by selfish interests,” whom he identified as “Indian land grafters.” Pratt replied to this: “Is the power of control over vast estates, over the securing and expenditure of vast appropriations, over ten thousand employees and their salaries; over the control of all influences which perpetuate all these, free from selfishness?” However, he did not address specifically the problem of protecting Indian lands and resources. After the deaths of Pratt (on April 23, 1924) and Montezuma (on January 31, 1923) the chief advocate of their ideology became Joseph Latimer, who had worked with Montezuma as an attorney on behalf of the Indians on the Fort McDowell Reservation.55 Although he did not have the stature nor command the attention of either of his predecessors, Latimer tried to carry on their work. In a 1928 letter, he said that “I was intimately associated with Dr. Carlos Montezuma from 1908, until his passing a few years ago, just before which he wrote me: ‘For God’s sake Jo— carry on our work’. General Pratt was our confident [sic] and leader and towards his end he wrote me: ‘I place my mantle

90

A Fateful Time

upon your shoulders’ . . . I was examining attorney for a Committee in Congress investigating Indian Affairs in 1911 . . . and . . . I have agreed and worked in perfect harmony for years with” Congressman Kelly.56 In the late 1920s and early 1930s Latimer was the chief advocate of the termination policy. He wrote and distributed statements presenting this point of view, corresponded with a number of people concerned with Indian affairs, and had materials by Pratt and himself included in hearings of the Senate Committee on Indian Affairs.57 Latimer’s goal was the immediate abolition of the Bureau of Indian Affairs and the special legal status of Indians, and in advocating this position he used the arguments put forward by Pratt and Montezuma, asserting that the Declaration of Independence and the Constitution required that “the Indian should have his own God-given and constitutional free initiative.” Consequently the first plank of his “Suggested Citizenship Plan for the Indian” was “Free the Indian at once from Bureau wardship of his person.” However, Latimer made two significant modifications in this ideology. Recognizing that the protection of Indian property was an important requirement of any viable policy, he suggested in his plan that it would be possible to “separate the Indian and his property” by working out a system of individual or tribal trusteeships, established under state laws, to guarantee that Indians would not lose their properties. Apparently he never worked out the details of such a proposal, but it included his second deviation from the termination ideology. This was the suggestion that Congress should continue to appropriate funds to pay the states for the cost of services provided to Indians.58 He was not explicit about whether the trusts would be subject to state and local taxation, but apparently they would not, because he proposed that “all” costs of state and local services be paid by the national government. Congress did adopt a greatly restricted version of Latimer’s second proposal in 1934 when it passed the Johnson-O’Malley Act. Congress never gave serious attention to Latimer’s ideas about tribal trusts, although in the late 1920s and early 1930s there were four hearings on bills backed by Senator Elmer Thomas of Oklahoma, Secretary of the Interior Work, and Indian Commissioner Charles J. Rhoads to authorize the establishment of state trusts to handle the property of individual Indians. In 1929 the attorney general ruled that there was no existing authority to establish such private trusts.59 Given the strength of the view that assimilation of Indians was both highly desirable and inevitable, it is surprising that the termination ideology was not stronger from 1920 to 1933. There was little consistent advocacy of views based on this ideology, and fortunately for Indians, it was clearly not a viable option for major policy change at the beginning of the Indian New Deal.

Conflict and Consensus

91

Apparently only one hearing was held during this period on even a modified terminationist proposal. In 1931, after he had become a lame-duck representative (he had resigned to make an unsuccessful race for the United States Senate), Republican William Henry Sproul of Kansas introduced a bill that would have set a specific date for abolition of the bia, although the date was far off. Part of his bill would have transferred the educational functions of the Bureau to a new commission controlled by a multi-agency board. But the bill also declared that “fifty years from and after the approval of this act the United States shall cease to be the guardian of the Indians, and all Indians shall then and thereafter be regarded as independent, qualified citizens of the United States, with the same liberties, privileges, immunities, and responsibilities as other citizens.” 60 Probably because Sproul had been a member of the Committee on Indian Affairs for eight years, a hearing was held on his bill, although obviously it had almost no chance of passage. Not only was Sproul completing his last days as a representative, but the hearing was held in the lame-duck session of a Republican House of Representatives before a new House dominated by Democrats would assume office. The fact that the bill proposed a significant departure from existing policy was made clear by the opposition of the Bureau. A letter from Commissioner Rhoads to the committee said that the policies of the Bureau were already moving toward assimilation but that setting a rigid deadline for ending Bureau control was unrealistic. Rhoads wrote, “Hasty action, wholesale removal of restrictions regardless of competency, ill considered legislation fixing a definite time limit or ‘dead line’ with this end in view, etc., frequently do more harm than real good to the main purpose we have at hand.” Sproul’s bill was given a unanimous favorable vote by the committee, but no action was taken on it by the House as a whole.61 The termination ideology, particularly as it was vigorously put forward by Pratt, did identify one impediment to Indian policy reform: Bureaucracies seldom ask to be abolished. Employees of a bureaucracy have several motivations for resisting fundamental change, including a desire to maintain their own jobs and the rewards that go with these positions. But there are other factors. The officials who work regularly with a clientele or on a particular activity usually consider what they are doing worthwhile. In this instance many Bureau employees no doubt felt that they were helping Indians in a variety of ways, whether Indians or objective outside observers would agree with them. bia employees may have been aware that their actions sometimes fell short of meeting their goals, but it is customary for persons to see the successful aspects of what they are doing more easily than the unsuccessful parts. Moreover, while Bureau officials often acted as though the existing pattern of law,

92

A Fateful Time

which told them that Indian governments were still important, was not binding on them, there were times when the law was followed. One should also keep in mind that bureaucracies are able to influence what happens to them. Congress, then and now, typically accepts proposals for bills and appropriations from the agencies affected by these matters, and it routinely refers legislative proposals from other sources to agencies for comment. In short, agencies have a great deal of control over the information available to legislators about matters within their jurisdiction, although of course there are other sources of information for legislators.

Conclusions By 1929 almost a decade of muckraking and serious study had left most of the principal actors in the Indian policy field convinced that existing national programs, based on the forced assimilation ideology, were not working well. Indian poverty and its associated evils had been clearly documented, and there was growing awareness that the allotment policy itself was largely to blame for this. Instead of establishing a yeoman class of sturdy Indian citizens, allotment had resulted in staggering loss of land and had not prevented very high levels of Indian poverty. Moreover, it was apparent to more and more of those most concerned with Indian policy that the “mighty pulverizing engine” had not completely destroyed Indian governments and social cohesion and had not converted most Indians to “American citizens” sharing the ideals of the late-nineteenth-century Christian reformers. However, no consensus existed on the ideology that should replace forced assimilation. The termination ideology, which proposed abolition of the Bureau and the unique legal status of Indians, had only a few supporters. There were intimations in the Meriam Report that a more positive view of Indian cultures was developing. Nevertheless this influential report fundamentally supported assimilation as the goal; only a few suggestions in it would have supported other conceptions. For example, even though it was the first important public document to point out that the chief effect of the allotment policy in practice was to transfer Indian land to non-Indians, it did not recommend halting allotment or even major overhaul of what had been the dominant policy since 1887. Instead the report suggested administrative reform. It proposed that a bigger, better financed, more efficient, and more effective Bureau of Indian Affairs would speed up the process of assimilation, reduce the terrible level of poverty in Indian communities, and bring closer the time when the national government could seriously consider ending government programs affecting

Conflict and Consensus

93

Indians. The report implicitly rejected termination as a viable current basis for Indian policy, however. In this situation the election of Herbert Hoover as president of the United States offered a new opportunity to change Indian policy in a fundamental way. Some have suggested that the four years that followed—the RhoadsScattergood years—laid the groundwork for the Indian New Deal. This contention needs to be examined before discussing the development of the tribal alternative ideology, which ultimately became the basis of a serious reform effort.

Chapter Four The Rhoads-Scattergood Administration New Era or Transition?

In 1929 the leadership of the Bureau of Indian Affairs changed for the first time since 1920. President Hoover’s secretary of the Interior, Ray Lyman Wilbur, declared that a “new era” had dawned for the Indian and that the nation was well on its way to solving “the Indian problem.” He predicted that with the right policies, “in a generation there would remain but a few small groups [of Indians] that would be different from the generality of the population. Indian administration virtually would have ceased to exist.” 1 The appointment of able and high-minded administrators Charles J. Rhoads and J. Henry Scattergood to head the Bureau promised substantial improvement. This chapter looks at the resulting reform effort, chiefly from the standpoint of its meaning for Indian self-government. Particularly, the RhoadsScattergood administration must be examined to determine its relation to the Indian Reorganization Act. Claims have been made that it was a precursor of the Collier era, implying that the goals of the two administrations were the same. It has even been asserted that the objectives outlined in four letters to Congress from the administration in 1929 provided the basis for the Indian New Deal. To understand the ira, we need to understand national Indian policy from 1929 to 1933.2

Administrative Reform Implemented President Hoover was a reformer with a long record of humanitarian efforts on a grand scale, and he picked administrators to deal with Indian policy who were cast in the same mold. Interior Secretary Wilbur had been president of Stanford University before his appointment and had been associated with many reform efforts. While not extensively involved in Indian affairs before his appointment, he had been aware of the Indian Rights Association and its activities since 1913. From 1918 to 1927 he had belonged to Frederick Collett’s Indian Board of Co-operation, a non-Indian California reform group that eventually focused primarily on trying to secure claims money for Califor94

The Rhoads-Scattergood Administration

95

nia Indians (and Collett). He had been a member of the Northern California branch of Collier’s American Indian Defense Association and also was in communication with the Indian Rights Association.3 The commissionership was shared in practice by two successful Philadelphia businessmen with records of philanthropic activity, one of whom had extensive involvement with Indian affairs prior to his appointment. Charles Rhoads, a banker, had been a trustee of Bryn Mawr College (of which his father had been president); had helped to direct the affairs of Haverford College, his alma mater; and had played roles in numerous philanthropic activities in Philadelphia. He had met Hoover while both were engaged in relief efforts in Europe after World War I. His father had been a long-time president of the Indian Rights Association, and Rhoads was elected to that office in 1927. J. Henry Scattergood had been successful in several manufacturing and insurance companies in Philadelphia. He held degrees from Haverford College and Harvard University and had served as treasurer of Haverford and Bryn Mawr and as president of the board of trustees of Hampton Institute. He too had participated in many philanthropic activities in Philadelphia and had been a member of the Pennsylvania Public Service Commission. He had begun reconstruction work in Europe during World War I and had continued these efforts after the war.4 Hoover, Rhoads, and Scattergood were all Quakers. Hoover approached Rhoads and Scattergood about serving in the Bureau. Although Rhoads had proposed to Hoover that Scattergood be named commissioner, Hoover persuaded him to accept this position himself. Rhoads made his acceptance conditional on Scattergood’s being named assistant commissioner (he appointed Scattergood as one of his first official acts); he also asked for, and received, personal assurances that the administration wanted to see the Meriam Report implemented.5 Rhoads and Scattergood fought hard within the administration for greatly increased funding for the Bureau. They were successful at first, although the doubling of appropriations called for in the Meriam Report did not take place. Federal appropriations for fiscal year 1930 (July 1, 1929, through June 30, 1930) for the Bureau had totaled $18,879,057 (although this was not all the money spent by the Bureau). Secretary Wilbur initially asked the director of the Bureau of the Budget for an increase of $10,408,816 (or 55 percent) for the next fiscal year. He defended this sharp increase by pointing out the need to improve educational, health, and industrial advancement efforts on behalf of Indians, and asserted, “I believe that the government may profitably appropriate considerably more money during the next few years for the purpose of terminating federal administration of Indian affairs within a generation, rather than to perpetuate it through insufficient funds.” 6 The Bureau of the Budget initially would not allow such a large increase

96

A Fateful Time

to be presented to Congress. Rhoads and Scattergood did not accept defeat, although they drastically scaled down their request. On October 28, 1929, Rhoads wrote to Secretary Wilbur, “We have just received the Budget allowance for the Indian Service for 1931, and we are bitterly disappointed. The total allowed by the Bureau of the Budget from Treasury appropriations is $19,798,029.74. Comparing this figure with the amount of [regular and supplemental estimates totaling] $26,142,316.99, our estimates have been reduced by $6,344,287.25.” 7 Declaring that the situation was “critical if the President and yourself expect the rehabilitation and reforms necessary in the education and health conditions of the Indians that the informed public has been demanding,” Rhoads asked that the secretary take the unusual steps of asking for a rehearing and supporting a request for a supplemental appropriation of $1.5 million, twothirds of which would go to education and approximately one-third to health. He requested a “personal conference” with the president and the director of the Budget. The outcome of this unusual request was presidential approval of the supplemental request and an agreement to make another supplemental request for fiscal year 1932.8 Rhoads was less insistent when he ran into roadblocks in Congress. When a committee of the House of Representatives headed by Michigan Republican Louis Cramton refused to approve the supplemental request to increase spending for educational and health programs, preferring instead to use the additional money for capital improvements, Rhoads agreed. To John Collier, this action looked like capitulation to opponents of Indian reform. He led a vigorous drive before the Senate appropriations committee to restore this money to its original purposes and also castigated the administration for what he saw as weakness. Collier won, but the incident widened a gap that had already developed between Collier and the Rhoads-Scattergood administration.9 In spite of congressional opposition in some quarters, substantial increases in federal appropriations for fiscal years 1931 and 1932 were secured. By 1932, federal appropriations had jumped to $27,030,047, an increase of 43 percent from fiscal year 1930. However, the deepening Depression forced a reduction to $22,140,098 for the next fiscal year and to just under $19 million for fiscal year 1934.10 The appropriation for Indian programs in the final year of the Hoover administration (fiscal year 1934, calendar year 1933 –1934) was $2,998,597 above the appropriated amount for fiscal year 1929, an increase of 19 percent. While this was far below the amount recommended by the Meriam Report, it was still substantial. Moreover, the new amounts for operating programs of the Bureau went up more. Excluding capital expenditures (for construction and roads), spending from fiscal year 1929 to fiscal year 1934 jumped $5,059,319, or

The Rhoads-Scattergood Administration

97

39 percent. Again, the high point of appropriations, measured this way, came in fiscal year 1932. The additional money paid for new and expanded programs in several areas. In August 1930, W. Carson Ryan Jr., the nationally recognized educational expert who had been a member of the Meriam study team, was brought in to head up the Bureau’s educational effort. Ryan requested increased funds to bring about “improvement of food and clothing standards throughout the Service, the employment of labor to relieve children of excessive institutional drudgery, the employment of additional teaching personnel, the raising of standards for teachers, the replacement of worn out and unserviceable equipment, more nearly adequate provision for vocational training, and many other needed changes in connection with educational activities.” 11 Ryan’s educational philosophy held that boarding schools were harmful to Indian children, especially young ones, and that most Indian children should be educated in public schools with children from other groups, where they could experience “the one fundamental method of introducing Indians into full, participating citizenship.” Accordingly, several boarding schools were closed and the proportion of Indian children in public schools increased, even as there was an expansion of day schools run by the Bureau. Although attempts to get new legislation to expand the payment to local school districts for educating Indian schoolchildren failed during this administration, the policy of making such payments, which had been authorized in 1914, was given increased prominence. Nevertheless, by the end of the Rhoads-Scattergood years there were still significant numbers of Indian children not attending any school—19.5 percent of the Indian children of school age in the United States.12 A section of a 1930 Indian appropriations act authorized for the first time a fund from which loans could be made to Indians to facilitate their attendance at colleges and universities, and increased numbers of Indians began attending post-secondary schools.13 Bureau expenditures to improve health conditions also increased. New hospitals were built and old ones expanded. Because Indians also utilized these institutions more, the total days of hospital treatment increased by 45 percent. The Public Health Service detailed nine medical officers, a pharmacist, and a dental officer for duty with the Bureau. The health activities of the Bureau were put “under the direction of” Public Health Service officials, who were charged with assisting the field staff of the Bureau to improve medical services. The number of patients admitted to bia tuberculosis hospitals declined slightly from 1929 to 1932, while the number of Indians detected with trachoma, another widespread illness among Indians, dropped by 27 percent. Evidently progress was being made against two of the most terrible scourges of twentieth-century Indian life. However, the overall Indian death rate still

98

A Fateful Time

remained higher than that of the country as a whole—14.3 percent for fiscal year 1932, compared with 11.4 percent for the total U.S. population in calendar year 1927, according to Bureau statistics.14 Increased expenditures and expanded programs also improved Bureau services to Indian farmers. Funds were obtained to add twenty-four agricultural extension agents in the field and a supervisor of Home Extension in Washington, and farmers assigned to reservations were upgraded. In addition, a major project begun in 1929 added 9,644 acres of farmland to the Pima Reservation. Irrigation projects were expanded on several other reservations. However, the number of irrigated acres cultivated by Indians increased only slightly, because many Indians lost their lands during this period.15 This increase in activities resulted in an expansion of permanent employees actually on duty from 4,746 in 1929 to 5,988 at the end of 1932, a jump of 26 percent. The number of employees in the Washington office of the Bureau increased from 182 in 1929 to 199 in 1932, an increase of 9 percent. A modest effort was begun to increase services designed to find employment for Indians. The number of Indians employed in permanent positions in the bia increased from 1,708 in 1926 to 2,084 in 1932; national data were not available on temporary employment of Indians. Since 1894, various statutes had allowed giving employment preference to Indians.16 Changes in 1931 in the organization of the Washington office (which had operated on essentially the same plan for at least forty years) were designed to eliminate duplications of authority, raise the status of directors in various subject matter areas who were specialists in their fields, and reduce the number of officials reporting directly to the commissioner. Two new assistant commissioner positions were established: one oversaw divisions dealing mainly with “the Indian as a person” (Health, Education, and Agricultural Extension and Industry), while the other headed up divisions dealing mainly with Indian property (Forestry, Irrigation, and Land). In addition, legal work was brought under the supervision of a newly created Office of the Chief Counsel, and several divisions dealing with financial matters and legislation were centralized under the supervision of a chief finance officer. Donald L. Critchlow, using the papers of the Brookings Institution, tells us that this reorganization was resisted by Rhoads and Scattergood but that it was pushed by Lewis Meriam, who eventually got most of what he wanted.17 While these changes were intended partly to increase the effectiveness of divisions of the Washington office that worked directly with field officers, some superintendents and other field officers complained that the changes had confused lines of authority at the reservation/agency level. In a report by a member of the Board of Indian Commissioners, which was sent to the White House, Hugh L. Scott stated, “Practical decentralization has not been effectu-

The Rhoads-Scattergood Administration

99

ated so as to reach the superintendent, the man who is always in contact with the Indians, whose initiative has been further weakened and whose whole administration has been cramped down tighter than ever.” Scott charged that Washington representatives of the new divisions were bypassing superintendents and working directly with agency employees. He also reported “a state of apprehension” among field employees because of fear that the office was “showing an indecent haste in getting rid of its older men who do not have a college diploma.” As the office saw it, “The trend in this administration has been to lessen the generalized scope of authority of the local superintendent by giving him experienced department heads on the reservation to handle the technical problems in the fields of health, education, agricultural extension, forestry, etc.,” but apparently some superintendents objected to this reduction of their authority.18 The last remark in the Scott report probably reflects one reaction to another of the achievements of the Rhoads-Scattergood administration. An attempt was made to raise the caliber of Bureau employees, chiefly in Washington but also in the field. This effort evidently met with some success. The average salary for permanent members of the bia rose slightly during the RhoadsScattergood years, from $1,536 to $1,610.19 Since these were years of price deflation and, at the end of the period, a reduction in appropriations for the Bureau, this no doubt reflects a substantial upgrading of personnel. How effective were these efforts in improving the condition of Indians? There are no definitive data on which to base an answer to this question, and attempting to answer it must take into account the fact that the Great Depression, the most severe economic downturn in American history, began only a few months after Wilbur, Rhoads, and Scattergood took office and deepened throughout their years in office. The Bureau admitted that “in common with the general trend throughout the country the present economic condition of the Indians is less favorable than that prevailing in 1929.” However, it argued that “in many instances the condition of an Indian is better than that of many of his white neighbors, or that of the average unemployed person in nearby towns or cities.” 20 One measure of the economic well-being of Indians during these years is the status of tribal funds controlled by the Bureau. The income to tribal trust funds dropped from $13,934,272 in fiscal year 1929 to $4,267,694 in fiscal year 1932, a decline of 69 percent. Actual expenditures from these funds (mostly in the form of per capita payments to individual Indians) dropped less drastically. The Bureau explained, “Oil and gas revenues have diminished, leases have been cancelled, new leases have been greatly reduced in number and the royalty income has diminished due to the reduction in prices of crude oil.” Also, income from coal and timber on some Indian lands dropped dramati-

100

A Fateful Time

cally. Indians were affected also by the general rise of unemployment and drought conditions prevailing in much of the central portion of the country. The Bureau had no information on the income of individual Indians, but individual accounts controlled by the Bureau declined, though not so rapidly as tribal accounts.21 Finally, the administration’s most important legislative achievement resulted in the cancellation of large amounts of debt owed by Indian governments because of the various provisions for reimbursable expenditures that reformers, including Collier, had attacked. A first step in this direction, although it applied only to the Gila River Reservation in Arizona, was a statute passed in March 1931 that canceled $1,373,546 in charges against reservation lands. Although it took until July 1, 1932, the Congress was finally persuaded to pass the Leavitt Act, a general statute providing for the cancellation of uncollected construction assessments levied against Indian lands for irrigation projects authorized by a 1920 law. By the end of calendar year 1932, $3,115,470 of Indian reimbursable debt had been canceled under this law.22 In terms of the Indian estate—the lands held in trust for them—the picture is less clear. On the one hand, because the administration did not halt allotment of lands or issuing of fee patents to Indians for allotted lands, the loss of Indian lands through allotment continued. The administration made an effort to heed the Meriam Report’s suggestion that greater care be taken to end the trust period before Indians were in a position to hold on to their land. In the first letter to President Hoover asking extension of the trust period on a specific reservation, Secretary Wilbur stated his philosophy in this matter: “I do not approve the indefinite extension of the trust periods on the various Indian Reservations. My recommendation in the case of the Siletz Reservation is submitted in the expectation of approval by the administration of a program which will expedite the emancipation of the Indians and make continued trust extensions unnecessary.” The secretary then indicated that he intended to change the system for determining the competence of individual Indians from one “determined solely upon the recommendation of his Reservation Superintendent” to one that would make detailed determinations by Commissions of Competency, which would study a number of factors bearing on an individual’s ability to control his or her own property.23 The administration extended trust periods (which it was authorized to do by 1906 legislation) in a number of instances, but in other cases it made new allotments and/or issued fee patents. The final report of the administration stated that 529 owners of 71,078 acres of Indian-owned land had been issued fee patents or their lands had been “released from government supervision” and that 249,994 acres had been sold, for a total of 321,070 acres subtracted

The Rhoads-Scattergood Administration

101

from the amount owned by Indian tribes. It also reported that 3,782 Indians had been allotted lands totaling 582,777.15 acres; past experience indicated that eventually much of this land would pass out of Indian ownership as long as the allotment law continued in force.24 On the other hand, during the Rhoads-Scattergood administration 1,318,064 acres were added to the Navajo Reservation and another million acres were temporarily withdrawn, pending consideration of various bills to make other substantial increases in the land base of this tribe. Also, 2,356 acres were purchased after June 30, 1929, for resale to Mississippi Choctaws, and small amounts of land were purchased for Kootenai Indians living near Bonners Ferry, Idaho, and Indians living near Elko, Nevada. In California the 5,000-acre Barona Ranch was acquired in exchange for 2,860 acres within the Capitan Grande Indian Reservation. Finally, 238,000 acres in Arizona were purchased for Papago Indians.25 Thus, overall there was a net increase of Indian lands during this administration. On the principal subject of this study, Indian self-government, the administration did not report any advances or make any claim that it had furthered the control by Indians over their own lives through strengthening Native American governments. The administration in fact opposed congressional efforts to give statutory authorization to such governments. The Rhoads-Scattergood administration continued one of the de facto policies of the Burke administration by encouraging organization of new governments under written constitutions in some cases. Some of the Office correspondence in connection with the organization of a business committee at the Warm Springs Reservation in Oregon will illustrate how both administrations dealt with Indian governments. The actual political situation at that reservation is not known. However, this was another reservation where a number of unrelated groups had been brought together. Beginning in 1929, the Warm Springs superintendent, F. E. Perkins, began inquiring about how to call a general council to choose a tribal attorney. Assistant Commissioner E. B. Meritt wrote Perkins on January 5, 1929, that he was authorized to call a general council for this purpose on thirty days’ notice, provided that he made an attempt to notify all Indians on the reservation. But Meritt suggested that Perkins consider creating “a regular tribal business committee . . . with regular meetings at stated times during the year.” Should he decide to take this route, further advice was given: It is suggested that you prepare and submit to this Office as soon as practicable a draft of constitution and by-laws which you believe will be suitable for the needs of the Indians of your jurisdiction, so that the same may

102

A Fateful Time

be considered here and tentatively approved before being submitted to the Indians of the council for their consideration and adoption. There are enclosed herewith for your consideration, samples of constitutions and by-laws adopted at one or two other reservations which may be used as a guide in preparing your draft.26 This example demonstrates two aspects of the Rhoads-Scattergood administration’s approach to Indian self-government. First, the responsibility to draw up a constitution and determine its contents was clearly viewed as an administrative prerogative. There is no mention of Indian participation at this crucial stage, although an Indian council was to have the right to approve these documents, which implied the right to modify them. Second, it is apparent that organizing governments was relatively routine; the Office could suggest specific steps, which had presumably been followed elsewhere, and make available existing organizational documents. Another indication of the routinized status of such efforts is that members of the Senate Survey Committee sometimes told Indians who talked with them about organizing councils that there were formal rules governing the formation and recognition of tribal councils. For example, at a hearing held on the Pyramid Lake Reservation on September 19, 1932, Billy Williams, a member of the Pyramid Lake Paiute Tribe, told the senators that a group of Pyramid Lake residents wanted to “form . . . a sort of council to represent this reservation.” Senator Frazier suggested that the group get the “rules and regulations of the Department with respect to the organization of a council” from the superintendent and “elect your council.” 27 There is no evidence of such regulations, but it is apparent that the method of bringing about new governments through the writing of constitutions and bylaws had become an established practice. For some reason, organization at Warm Springs did not proceed quickly. On January 26, 1933, Commissioner Rhoads wrote Superintendent Perkins with a new authorization to proceed with setting up a business committee. On July 28, months after the Collier administration had taken office, Perkins wrote Assistant Commissioner William Zimmerman, Collier’s second-in-command, that a constitution and bylaws for the reservation had been approved at a general council held July 20. He enclosed copies of these documents and reported that the general council had elected a business committee. Zimmerman replied in essentially the same way as the previous administration. On September 12 he wrote to Perkins, “The action of the Indians in taking steps to adopt a constitution and by-laws for the formulation of a Tribal Business Committee meets with the approval of this Office, and we take pleasure in recognizing the Business Committee elected.” However, he suggested several amendments to the constitution and requested that Perkins report to him when the changes were

The Rhoads-Scattergood Administration

103

made.28 This indicates that in the absence of legislation defining their authority in this area, the Collier administration at first followed previous practice, which had been to encourage administration-led organizational efforts to organize Indians without any written criteria to guide this proposal or to determine when such governments were to be “recognized,” as well as what recognition meant. The bia also continued the same case-by-case approach to constitutionwriting in the case of the San Carlos Apaches. On February 11, 1934, Henry Chinn of this group wrote Collier that they were working on a constitution and would submit it soon. Three days later the superintendent at this agency wrote that the Office had already rejected an earlier constitution from the San Carlos Apaches but that another was forthcoming, and on February 23 an internal memorandum reported: “Commissioner has refused to consider and approve the Constitution and By-laws as submitted by the Indians.” 29 Another incident indicates that the new administration was continuing earlier efforts to organize tribal governments without specific statutory authorization. Felix Cohen, while involved in drafting what would become the Indian Reorganization Bill, helped the superintendent of the Fort Belknap Reservation with plans to draw up a constitution for that reservation. Cohen had visited the reservation in November 1933, and he wrote to Superintendent Lyman Shotwell on December 22, offering to send him “a ‘model’ constitution and list of ordinance topics upon which to work.” On January 2, 1934, Cohen commented on a “draft constitution” sent him by Shotwell, suggesting that there were problems with it but that it could become “the basis of your constitution after the necessary legislation has been passed.” 30 The record of the Rhoads-Scattergood administration, unlike that of its predecessor, was free of efforts to override existing governments, or at least no instances of such action came to the attention of Collier or other reformers. No doubt the high moral character of the two top administrators within the Bureau accounts for this difference, since there was no statutory change to influence it and no indication of written policies in this area.

The Failure to Achieve Major Change John Collier, the chief and most effective advocate of Indian interests during the 1920s and early 1930s, initially thought that the new administration understood the need for a change in policy directions beyond those dictated by the administrative reform ideology. He attempted for several months to work with Rhoads and Scattergood toward goals that he thought were close to his own. At this time Collier thought that Secretary Wilbur could be brought to en-

104

A Fateful Time

dorse major policy changes in the direction of preserving Indian cultures and strengthening the capacity of Indian societies to make decisions for themselves. It is doubtful that Collier had yet fully worked out the tribal alternative he would later advocate (see chap. 5), but there is no doubt that the thrust of his work from the beginning of his advocacy for Indians was toward somehow allowing Indians to have a greater voice in determining their affairs. He began in September 1929 by sending to Secretary Wilbur a copy of an article by writer Mary Austin that had appeared in the Forum and a letter to the editor from Collier that had been published in the same magazine. The most important thing about the Austin article, he said, was her statement that “The energy—and, incidentally, the taxpayers’ money—which have been devoted to cajoling and compelling our Indians to behave like white men, would, if rightly applied, have made of them the best of all aboriginals.” 31 Austin had suggested “the possibility of making Indians self-supporting by helping them to be good Indians” as the basis of a new policy. Collier’s letter said that she had outlined the correct “foundation” for policy and that “the Indians have been denied responsible group life. . . . Of course, no program which leaves out of account the duty of restoring and freeing the group life of the Indians can be a success.” He suggested that Wilbur’s statements, taken as a whole, would “fulfill the ideal which Mrs. Austin has suggested.” Collier was mistaken in believing that Wilbur would support the approach favored by Austin and Collier. How well he knew Wilbur is not clear. He had been acquainted with him since his work in New York, when they were both board members of the national Child Health Organization that grew out of work with which Lucy Collier, his wife, had been involved, but this activity had nothing to do with Indians.32 How much contact Collier had with Wilbur through the California branch of his support organization is not known, but it is doubtful that it was extensive. Unfortunately for Collier’s hopes, the secretary held beliefs so strongly in favor of forced assimilation that at times they bordered on the termination ideology. In 1924 he had written the editor of the Forum that “the Indian cannot be saved on the asylum basis. He will inevitably succumb to absorption. . . . The Indian needs guidance and protection as a member of a backward minority but, unless he demonstrates aspirations at least equal to those of his neighbors, there is, in the long run of events, but little chance for him.” 33 By the time he became the Cabinet official overseeing the work of the bia, Wilbur was eager to set a time limit on continued government supervision of Indians. In an article in the June 1929 Saturday Evening Post he wrote, The American Indian should be made self-sustaining, should be brought to full responsibility for himself, should be freed of his Government

The Rhoads-Scattergood Administration

105

wardship, should be merged into the industrial life of the nation. The administration of his affairs should be decentralized, the manner of his education revised, the Indian agent, with his abnormal powers, should cease to exist. The Indian Service should become one of those agencies of Government which will steadily become less important. In twenty-five years it practically should have ceased to exist.34 In the same article, Wilbur clearly endorsed continuation of the allotment policy. However, he had also written that it was necessary to protect Indian property rights and that one of the means to do so might be the creation of tribal corporations to own tribal property, such as forests. Seizing on this reference to the incorporation idea, Collier had written him in the letter noted above that Wilbur had “balanced his individualization statements with a clear, forceful statement of a program of tribal incorporation, the beginning of that policy toward aboriginals which is called ‘indirect administration’ in British colonial parlance. Tribal incorporation means tribal and cultural enfranchisement.” In reply to Collier’s letter, Wilbur wrote that “as you indicate, aside from the individual needs and development of the Indian, we require methods of modern organization, probably through incorporation, to handle the joint property and the common problems of the Indian.” 35 Wilbur had already shown an interest in the incorporation idea; in submitting his initial budget requests for the Bureau of Indian Affairs, he had asked for a special appropriation to study the idea. Following up his initiative with the secretary, Collier, apparently with assistance from Matthew K. Sniffen of the Indian Rights Association and Lewis Meriam, drafted four letters to Congress discussing policy changes that he hoped the administration would endorse. In December 1929 Wilbur and Rhoads sent these letters to the chairmen of the Senate and House Committees on Indian Affairs, with the suggestion that they be given serious consideration.36 The letters analyzed the failings of existing policy and made new legislative proposals for remedying these failings, although no specific bills were proposed or outlined. The first letter began by identifying the allotment policy as a central issue because it was causing the loss of Indian lands. The letter predicted flatly that allotment, if continued, would destroy the Indian land base: “The consequences are mathematically certain: the allotted Indians of the second generation largely become landless. By the time the third generation has arrived, substantially all of the allotted Indian land will have passed into white ownership.” This letter proposed various ways to slow this loss and ended by suggesting that it was time to reconsider whether the allotment policy itself was sound. “I have become convinced that the difficulties and prob-

106

A Fateful Time

lems here stated are very close to the heart of the Indian situation and of the perplexities which beset the Indian Office. Constructive thinking is needed, and I make bold to suggest that the allotment act in its entirety, along with the system of reimbursable loans in its entirety, need legislative reconsideration.” The idea of incorporation was broached also as a possible way of solving the heirship problem, one of the effects of the allotment policy. “I make the very tentative suggestion that part, at least, of the loss of Indian heirship land to the Indians might be averted if there were some means provided whereby the allotted land could revert to the tribal estate, becoming subject to reallotment as conditions might prescribe. . . . It has been suggested that Indian tribes might be permitted and assisted to form themselves into corporate bodies and that allotments might be turned back into the tribal estate in exchange for shares of stock.” Incorporation was also suggested by the second letter as a way of dealing with the Indians’ “indivisible tribal estates”—the tribally owned “mineral and oil resources, power sites, timber wealth, the large bodies of grazing land, and even the farm lands of such tribes as the Hopis of Arizona and the Pueblos of New Mexico.” It stated that the national government might find itself administering these properties “to the end of time” but that continued national control of these resources meant that the Indians “must remain in a state of dependency.” Incorporating for control of these kinds of resources was suggested as an alternative to the empowering of existing tribal councils, however. Asserting that “under existing law the Interior Department can and does, in a more or less formal way, recognize Indian tribal councils,” the letter went on to suggest that it might be possible to allow such councils to handle tribal properties. “But such action of the administrative kind would be revocable by any succeeding administration; it would not provide a firm basis for the development of responsibility on the part of the Indians; and it would not do away with the underlying condition, which is that the minutia of tribal affairs rest in the hands of the Department and Congress.” This letter referred specifically to the Klamath incorporation bill, the first version of which had been introduced in Congress, and suggested a “complete study” of the incorporation idea. The third letter suggested the creation of a “special Indian claims commission” to dispose of the various claims by Indians against the United States. The basic reason given for dealing with the claims issue was to clear another obstacle to the abolition of the government’s Indian program. “There can be no liquidation of the Government’s guardianship over Indians until this inheritance of treaties and alleged broken treaties and governmental laches of the past is absorbed. . . . Hence, any plan contemplating the gradual diminution

The Rhoads-Scattergood Administration

107

and the ultimate and final termination of Indian tutelage must concern itself with this aspect of the situation.” The letters also went into detail on the problems of the Bureau’s irrigation program, which had been studied thoroughly in the Preston-Engle report. The increasing burden on Indian governments of reimbursable debt was discussed, and it was pointed out that in many cases the recipients of benefits from these programs had been non-Indians. In 1940 Collier remembered these letters as embodying “the complete basis for the Indian Reorganization Act.” Reading parts of the letters to a committee of the House of Representatives, he asserted that the recommendations in them, “while not anticipating every one of the elements of the [ira], do anticipate every one of the elements of the act which have awakened controversy, and they go far beyond the Indian Reorganization Act in what uninformed witnesses have called its communistic element, that is, its provisions about the allotment of land.” Kenneth Philp has also asserted that the Wheeler-Howard Act “stemmed, in part, from these proposals.” 37 This is a serious misunderstanding. The letters did not propose outright abolition of allotment and did not mention several key proposals made by the Collier administration when it presented to Congress the measure that became the ira. Most important, the core of the approach taken by the Indian New Deal, the tribal alternative, required strengthening tribal governments. This policy was explicitly opposed by the letters, and they display no awareness that existing councils already exercised authority recognized by the courts. Chapter 6 will go into more detail on the attitude of the Collier administration to incorporation and tribal council legislation, but it is clear that the letters did not support any effort to revitalize Native American governments. Presumably Collier read into the letters—at this time and later—more than they contained. Whatever the explanation for his statement about these letters, however, they were not in any sense a blueprint for the ira. Instead, their principal thrust was in the direction of administrative reform, which at this time was founded on the assumption that basic assimilation-oriented policies were sound; their only tilt toward the tribal alternative was the limited endorsement of the incorporation idea. Collier may have remembered them for being bolder than they were because they identified the destructive impact of the allotment policy as the principal problem that had to be solved. In the letters the idea of creating tribal corporations was given as the alternative to this policy, but if the central point was to halt and reverse allotment, the means for doing so may not have been particularly important to Collier, at least as long as the new structures were under Indian control.

108

A Fateful Time

The Rhoads-Scattergood administration in a few instances followed up the letters in the normal fashion for agencies committed to a legislative program: They drafted bills to carry out the recommendations and saw that they were introduced in Congress. Bills were introduced to provide for an Indian court of claims, transfer the irrigation functions of the Bureau to the Reclamation Service, and cancel the reimbursable debts. As noted earlier, only the bill dealing with reimbursable debts became law. The administration later reversed its position on transfer of the irrigation program; eventually a law forbidding such a transfer was passed. But the Rhoads-Scattergood administration never introduced legislation to modify the allotment law or even make a major study of it or to move toward the incorporation idea, although in practice it opposed an incorporation bill introduced by the Klamath Tribe. If Collier thought in 1929 that the administration, by accepting these letters and forwarding them to Congress, had committed itself to a far-reaching program of policy reform, by early 1930 he realized that there was not going to be vigorous administration support for the measures he wanted. On May 6, 1930, Haven Emerson, president of Collier’s American Indian Defense Association, wrote Secretary Wilbur on behalf of the association, expressing strong disappointment with its performance to that date. Stating that Rhoads and Scattergood had been in office for ten months, this letter asserted that “their accomplishment has been practically nothing. They have not rectified the extreme abuses in the treatment of the Indians, nor taken steps to reorganize the personnel of the Indian Bureau, nor have they put into effect a single constructive plan.” 38 Emerson stated that “it was thought that they would fight to a finish for . . . elementary things” and included in this category “the right of tribal groups reasonably to assert themselves in matters affecting their tribes.” The administration’s response was to take offense at the tone of the letter and some of its statements, and Collier gave up attempting to work with the administration. He resumed his largely critical stance toward government Indian policy for the rest of Hoover’s term.39 In a 1932 statement written by Collier and endorsed by various friends of the Indians and fifteen Indians of various tribes, Collier charged specifically that “when Secretary Wilbur and Commissioners Rhoads and Scattergood took office in 1929 we were led to feel a wonderful hope. They announced great programs and made great promises. We assert that they have forsaken their programs. They have broken their promises.” 40 Foremost among the promises this statement referred to were the legislative proposals made in the 1929 letters. Collier charged that far from supporting bills introduced to implement these proposals, “they have fought against that legislation, in some cases openly and in other cases by procrastination and obstruction.” The first two “specific pledges” the administration was accused of

The Rhoads-Scattergood Administration

109

having forgotten were “(a) To work for legislation giving to Indian tribes the largest possible voice, under new statutes, in the management of their tribal business. (b) To work for legislation permitting the incorporation of Indian tribes.” As we have seen, the first of these proposals was definitely not endorsed by the letters. Predictably (since in effect Collier had challenged their honesty) the response of the Rhoads-Scattergood administration to this attack was defensive and hostile. In a departmental reply to the Collier report (which was put into the Congressional Record by Senator William H. King of Utah) it was stated that “the fate of legislation recommended by the Department is not the responsibility of the Secretary of the Interior or the Commissioner of Indian Affairs.” Moreover, this statement denied that the 1929 letters had contained any “pledges.” The letters, this reply said, “set forth the views of the Department with reference to the perplexing problems mentioned, and ask consideration of the Senate and House Committees on Indian Affairs toward a solution. Several bills were introduced in the House as a basis for consideration of these questions, none of which has been enacted.” 41 The statement then went on to attack Collier (although not by name), asserting that “the major obstacle” to progress in Indian affairs was “the interference with tribal affairs by selfappointed groups making a profession of exploiting Indian grievances.” In evaluating Collier’s charges and the administration’s response, several factors have to be kept in mind. First, although Collier read into the letters more than they contained and misunderstood Secretary Wilbur’s policy views on Indian affairs, his hopes for major change had been raised during the early months of the administration, and he clearly believed that the key to major policy reform was the attitude of the administration. In a statement he wrote April 28, 1932, Collier suggested that the Bureau of Indian Affairs was “sovereign and autonomous” and controlled Indian policy, including legislation. He asserted that “it has been true for decades, and longer, that a statesmanlike initiative by the Executive would be able, in any given four-year period, to lead Congress to adopt a completely changed system of Indian affairs.” 42 He stated in this document that in 1929, for the first time, an administration committed to overthrow of “the organic essentials of the Indian affairs system” had come into office; the “tragedy” of the years since then was that “precisely that continuity of leadership and of pressure, dealing with the main elements of the complex of Indian Affairs, which can only be conclusively supplied by the Executive and which, if supplied, would inevitably be effective, was not supplied.” While this no doubt reflected Collier’s views, and partly explains the complete rewriting of Indian statutes that he attempted to secure when he later became commissioner himself, there is no reason to believe that a more vigorous effort at basic legislative change coming from the administration could

110

A Fateful Time

have been successful at this time. One of the prerequisites for such change— agreement among key persons concerned with Indian affairs that the present situation was undesirable—had been largely achieved, but there was no agreement on a policy to replace forced assimilation and little reason to think that very many friends of the Indian had abandoned faith in assimilation as the goal. Collier evidently was mistaken in believing that the Hoover administration had gone further than a strong commitment to administrative reform, even though Rhoads and Scattergood had put their signatures to the 1929 letters, which hinted at more fundamental change. Administrative reform was the approach to Indian policy most likely to be under the control of the administration, but even in this respect the achievements of the Hoover administration were limited and not long-lasting. Major legislative change in new directions, had they desired it, would have been much more difficult. One of the persistent patterns of American political life is that, save for exceptional periods when decisive electoral movements occur, it is much easier to block than to enact change in any area. The structure of American national government embodies a division of governmental authority among agencies and levels of government and indirectly, as Federalist #51 reminds us, various groups in the society that attempt to use government to achieve their ends.43 Typically, only major electoral upheaval, resulting in fundamental rather than marginal changes in the personnel of the executive branch and Congress, can open the way to major new initiatives in domestic policy. The election of 1932 was such an upheaval, but that of 1928 was not. President Hoover had somewhat different policies and was a different person than his predecessor, and consequently there was change in the leadership of the Interior Department and the bia, but the other elements required for major change were not present. Partisan differences were evidently not significant at this time in this area of policy, which was regarded as of minor importance by almost all legislators, with one exception. The strongest congressional advocates of Indian rights throughout the 1920s and the early 1930s were the Midwestern and Western Progressives, most of whom were Republicans. However, the bulk of the Republicans, as well as most of the Democrats, in Congress who were knowledgeable about Indian policy were clearly unwilling to consider significant innovations in this area. During its first two years, the new administration ran afoul of Republican Louis Cramton of Michigan. Cramton had chaired the important House Committee on Appropriations since 1920 and was among those unconvinced that major change in Indian policy was necessary. Sometimes Cramton could be defeated or bypassed on the issue of the level of funding for the Bureau of Indian Affairs, and during the first half of the Hoover administration apprecia-

The Rhoads-Scattergood Administration

111

bly more funds were secured. But there is no evidence that Cramton and other members of his committee were ever committed to significant change.44 On the Senate side, the leadership of the Committee on Indian Affairs was sympathetic to proposals for change during the Rhoads-Scattergood years, although not agreed on its direction. Collier had considerable influence with the combination of Midwestern and Western Republicans and Democrats that controlled this committee, as his success in establishing the subcommittee to conduct the survey of conditions of the Indians attests. Perhaps this success had led Collier to think that only recalcitrance in the House and weak legislative leadership from the executive were the barriers to change. But there is little reason to believe that even the most skilled and energetic executive leadership could have persuaded Congress to make massive changes in Indian policy. The deepening depression, which ultimately opened up the opportunity for such change, in the short run made it even less likely that legislative reform could be accomplished. As a result of the 1930 election, the Democrats won control of the House of Representatives, and consequently there was a turnover of committee leadership in that body. If anything, however, this shift made the possibility of change even more remote, because it increased the element of partisan conflict between the House and the Republican president. It is extremely unlikely that the new Democratic House could have been persuaded to respond positively to leadership from a Republican administration, particularly since the continued economic depression was taking its toll. In domestic policy areas considered of greater importance than Indian policy by most legislators and most of the electorate, the period from 1931 through 1932 was largely a time of stalemate, continued retrenchment of government spending, and inability to agree on decisive action. It would have been little short of a miracle if Indian policy had proved to be the one area in which bold new leadership produced dramatic change. Another reason for the lack of interest in major reform was that the bia was not normally highly concerned with general-purpose legislation, partly because Indian policy-making, given the consensus on ideology that had prevailed for many decades, was highly specialized and seldom dealt with major policy alternatives. Most Indian bills considered by Congress dealt with specific situations on specific reservations. In a report on their achievements issued just before they left office, Rhoads and Scattergood stated that in the first Congress with which they had worked, the Bureau had reported on over 275 bills involving Indians; 97 of these became law. During the next Congress 275 bills concerned Indians and 56 of these, plus appropriations bills, became law. The substantial volume of this legislation may even have been one reason why large change did not occur; the relevant leaders, in the adminis-

112

A Fateful Time

tration and Congress, were kept very busy dealing with a multitude of issues, each insignificant from a general policy standpoint, although not to the Indian societies affected by them. After World War II the desire to reduce the substantial volume of Indian bills, and the time and effort they required, was one of the motivations behind the desire to reform the committee structure of the Congress, which resulted in the Legislative Reorganization Act of 1946.45

Conclusions The Rhoads-Scattergood administration began with endorsement of the four letters to Congress proposing legislative initiatives and questioning the allotment policy. However, these letters did not contain a clear statement of the tribal alternative, as some (including Collier) have suggested. Particularly, they did not endorse strengthening Indian governments. They were not even in fact an outline of the new administration’s goals. With one exception, the bia under Rhoads and Scattergood made no effort to see that their proposals involving major policy change were enacted. The administration was committed strongly to administrative reform and in the first two years secured major increases in appropriated funds for the bia. With these additional resources, Rhoads and Scattergood improved health and educational activities of the Bureau and also upgraded the calibre of Bureau employees and undertook administrative reorganization designed to increase the effectiveness of services benefiting Indians. However, the Great Depression largely put an end to these efforts. In the end the Rhoads-Scattergood team limited itself to calling for yet another study, and failed even in this effort. During 1929 –1930 the administration backed h.r. 15498, a measure that in its original form would have appropriated $250,000 for a major study of Indian law by a special commission. Secretary Wilbur told the Senate Committee on Indian Affairs, “We find, in all of our work with the Indians, that we are working in a legislative maze.” He explained that numerous treaties, statutes, appropriation bills, and actions by the courts had created “such an intricate series of decisions and legislative acts, that it is almost impossible for us to get a clear-cut, unobstructed view.” Wilbur claimed that this situation had made it impossible to do more than “drift on the way we are now. . . . We feel . . . that we need a fresh start, and the only way we can get it is through the proposed codification study.” 46 The Bureau of the Budget forced Rhoads and Scattergood to reduce their request for funding to $100,000, but they pressed ahead. While the House of Representatives passed the bill on February 4, 1932, the Senate Indian Affairs

The Rhoads-Scattergood Administration

113

Committee held a hearing featuring attacks by Collier on existing administration of the Bureau but took no action on the bill. In the next Congress the idea of a new study based on legal codification was introduced again, as h.r. 9200. This time the Bureau of the Budget refused to approve asking for any funds at all for the study, and the bill was not given serious consideration in either house. The “new era” that had been glimpsed not just by Secretary Wilbur but also by John Collier and others ended with the admission that the administration did not know how to accomplish its goals for Indians and could not even secure another study of the Indian “problem.” Kenneth Philp is correct in characterizing these years as a “false dawn” for American Indians.47

Chapter Five The Tribal Alternative Early Versions

Actual Indian policy has been in practice, for most of our national history, little more than the summation of local decision-making. Yet the ideologies discussed in this book are important. The structures of ideas taken for granted by persons involved in specific transactions have an effect on outcomes (even if these are not always easy to predict). Moreover, occasionally the national government takes sweeping actions affecting Indians, as it did in 1887 and 1934. At these times ideologies can be of major— even decisive—importance. Finally, it may be possible to see distinct patterns of behavior independent of conscious ideologies. The forced assimilation, administrative reform, and termination ideologies, as they existed before the Indian New Deal, agreed that the goal of national Indian policy was the assimilation of all Indians—whether this was what they had freely chosen or not. These ideologies differed primarily in how to accomplish their common objective. After the forced assimilation ideology became dominant in the 1880s, most persons involved in Indian policy believed in a simplistic notion of directed change. This idea held that Indians, forced to become individual farmers and given education in the broadest sense, and following the inherent tendency of “primitive” peoples to adopt the ways of “civilization” when denied the possibility of living as they had once done and forced to live in close proximity with other Americans, would eventually change from “savages” into “full citizens” of the United States. Both the forced assimilation ideology and the administrative reform ideology also agreed that, during the time necessary for this process to “solve the problem,” the national government had an obligation to protect Indian property and provide needed services so that the transition was not accompanied by widespread suffering. The termination ideology disagreed with these patterns of ideas in denying this obligation by holding that Indians would assimilate most rapidly if reservations and the Bureau of Indian Affairs were abruptly abolished, although Joseph Latimer did propose a novel way to preserve Indian properties and protect them from state and local taxation. The 114

The Tribal Alternative

115

objectives of both forced assimilation and administrative reform dovetailed with the de facto self-preservation needs of the national bureaucracy charged with dealing with Native Americans, while termination saw the interests of the bureaucracy and of Indians as divergent. Although recognition of Indian law was limited and few exponents of forced assimilation or administrative reform seemed aware of important features of the pattern of Indian law created by the judiciary, advocates of both forced assimilation and administrative reform believed that existing law should be observed in carrying out the purposes of Indian policy. This fact is a major reason why both theories accepted the binding legal obligations of the national government toward Indians that had developed out of the legal doctrine that had evolved during the long period when Native American societies were in fact dealt with primarily on what is now called a government-togovernment basis. Again, termination differed fundamentally with the other two ideologies; implicitly, it held that there were no trust obligations of the national government toward Indians. These three major ideologies also agreed in their analysis of the place of Native American governments in Indian life; all held that such governments preserved “tribalism” with its communal values and therefore slowed up the necessary and inevitable transformation of Indians. The optimal situation, according to all three ideologies, would be to have the national government refuse to acknowledge and deal with these governments, instead ruling individual Indians directly, if possible. In practice, as chapters 1 and 4 demonstrate, the Bureau of Indian Affairs often dealt directly with Native American governments and even in some cases organized structures of this sort, or attempted to do so, partly because there was sometimes recognition of the fact that the law not infrequently required such action and partly because national bureaucrats simply accepted the reality of Indian government. Ideology notwithstanding, this was often the best way to deal effectively with Native American societies. Most of the time, however, these departures from the course prescribed by Indian law were presumably seen as just that—temporary or minor deviations from the main line of movement. The only ideology put forward before 1933 as a basis for determining national Indian policy that differed in major ways from this pattern of largely overlapping goals was the set of ideas called, by Graham Taylor, the tribal alternative.1 This ideology abandoned the goal of assimilation in favor of the belief that Native American societies had a right to exist on the basis of a culture different from the dominant one in the United States. It held that Indians should be allowed, if this was what they wanted, to preserve their ancient

116

A Fateful Time

ways and values and resist assimilation. Moreover, the tribal alternative theory differed fundamentally from the other three ideologies in holding that the Native American governments recognized by Indian law not only still existed but also exercised significant portions of aboriginal sovereignty. Therefore these governments should be recognized and encouraged to exercise such authority as they possessed toward ends freely chosen by Indians themselves. Given the prevailing pattern of judge-made law, which began with the assumption that Indian governments indeed existed and still wielded authority Native Americans had never surrendered, it is surprising that the tribal alternative did not develop on a significant scale earlier than it did. This tardiness is even more difficult to understand when the strength of democratic ideals in the United States, however variously articulated, is taken into account. It may not be accidental that the tribal alternative was put forward during the Progressive era—roughly from 1900 to World War I. While no single explanation of this period is adequate, this was a time when numerous attempts were made to make national, state, and local governments more democratic. U.S. senators began to be elected directly by the voters during this period; direct primaries, to permit party members rather than leaders to nominate candidates for office, became the norm; direct legislation—initiative, referendum, and recall—was established in a number of states; and so on. At least one major scholar during the Progressive era, J. Allen Smith, critiqued American governments from the standpoint of majoritarian democracy and proposed that the country move systematically toward the newer model. Writing that “the spirit of the Constitution” was “its inherent opposition to democracy, the obstacles which it has placed in the way of majority rule,” Smith asserted that “we have not yet reached, but are merely traveling toward democracy.”2 An era that was committed to majoritarian democracy, even though the constitutional/ political system was only partially moved toward democracy in this period, may have created a climate that encouraged thinking of Native Americans from democratic perspectives. Perhaps widespread racist/ethnocentric views toward Indians kept white Americans from thinking of extending democracy to Native Americans, however.

Introduction of the Tribal Alternative Option, 1912 to 1920 Unfulfilled promises (such as in the 1778 treaty with the Delaware Indians and when Indian Territory was established) of an opportunity to enter the United States as states perhaps belong in this category. However, the first bills that explicitly proposed measures consistent with and logically arising out of the tribal alternative were introduced in Congress in 1912 –1913. Texas Demo-

The Tribal Alternative

117

cratic Representative John H. Stephens, chair of the House Indian Affairs Committee, was the author of these bills. In 1911 Stephens had introduced a bill—which had been backed by Dr. Montezuma—to allot the Yavapai Indians at Fort McDowell. In 1912 Stephens sponsored h.r. 25242 and six months later introduced a similar bill. Hearings were held on both bills, and there was a subcommittee report on the earlier one.3 h.r. 25242 in its first form provided that Indians (except members of several named Oklahoma tribes) on any reservation that had been approved by the secretary of the Interior as “competent of organization” could by election “indicate . . . their choice and selection and nomination of their agent or superintendent.” If the nomination was by a two-thirds vote of the “adult members” of the group, the secretary would be required to appoint the person so nominated. Provision was also made for removal of superintendents or agents by a majority vote of adult members. In addition, the bill provided that a “mass assembly” consisting of at least 20 percent of the “resident electors” on a “competent” reservation could be held prior to the nomination election. This meeting was authorized to elect a president, secretary, and treasurer, plus three additional members, to serve both as an election board and a “business committee” after the election.4 The business committee was to be provided office space “when convenient” and was given limited authority. Agents or superintendents were to be required to submit all heirship matters and all proposed expenditures on the reservation to the business committee. While committee decisions on such referred matters were not to be binding, they were to be sent to the secretary of the Interior along with recommendations by the agent or superintendent.5 h.r. 25242 was also based on a continuation of the allotment process. It proposed a new approach to the control of allotted land, based on the racial classification of the Indian involved. All Indians would be classified into fullbloods, half-bloods, and quarter-bloods. Indians in the last category were to have complete control of their allotments, except that provisions for retaining trust status for such lands were not to be changed. It is not clear what the purpose of this provision was or what its effect might have been. One advocate of the bill asserted that the new approach would have halted the loss of allotted lands but also would have reduced the Indian population under Bureau control to half its current size.6 Vine Deloria Jr. and Clifford Lytle correctly note that this bill denied the premise that “skillful administration, without any contribution from the Indians, could alone solve the pressing problems of the reservations.” 7 While the “competency” provision would have given the administration great and unrestricted authority over whether to allow the provisions of the bill to go into effect, for the lucky reservations the effect would have been to largely turn

118

A Fateful Time

over local administration to Indian control and recognize a new (and democratically constituted), nontraditional type of government to exercise limited authority. The origin of this proposal and the extent to which it was known in Indian country cannot be determined, but a partial record of its reception in committee is available. At a subcommittee hearing held June 21, 1912, the principal testimony came from a non-Indian, Martin J. Bentley, who said that he had been an employee of the bia for seven years; for part of this time he had supervised Kickapoo Indians in Oklahoma. Bentley’s testimony was intemperate and he himself reported that a Bureau special inspector had said very damaging things about his character, so perhaps his testimony was not very persuasive.8 Letters of support for the bill were received, however, by the House subcommittee from Chippewa Indians of the White Earth Reservation in Minnesota. It was recommended favorably by the subcommittee, which stated that giving the “right of nomination” of agents to Indians was “both democratic and American in principle, giving to those governed the fullest consistent voice in the management and conduct of their own affairs.” This report went on to say that introduction of the bill had brought “numerous letters and telegrams and manifestations of interest” from Indians and that the original bill had been revised in response to these suggestions. One of the modifications was to delete a provision of the bill that would have allowed only “competent” Indians to vote. Attached to this report is a petition in favor of the bill, dated June 17, 1912, from 111 “members of the Minnesota bands of Chippewa Indians” at White Earth.9 The subcommittee bill evidently was not approved by the full Committee on Indian Affairs, but later in the same session Stephens introduced a modified bill, h.r. 25663. During the lame-duck session of the House after the 1912 election and before the new Congress was sworn in, another subcommittee hearing was held and testimony was heard from several Indians. Omaha attorney Thomas L. Sloan, a leader of the Society of American Indians, testified for the 1913 version of the bill. He endorsed the self-government provisions of the bill but talked mainly about those dealing with allotment. In discussing what would happen in elections if the bill were approved, he said that the election provisions would not turn over authority to “mixed blood” Indians but that tribal control would remain in the hands of the elders. Sloan said, “The power among the Indians is exercised by the eldest men, who still carry out their traditions and have their own ways of doing things and handling things on the reservation . . . those men generally assert themselves in the elections of the tribe. They have that influence.” 10 Two delegates who had been elected by a general council of the White Earth Band of Chippewas held on December 30, 1912, endorsed the bill. Gustav

The Tribal Alternative

119

Beaulieu supported the self-government portions of the bill. He said that the previous summer, in anticipation “that this bill would pass,” the White Earth Band had created a council, with one representative for each one hundred persons, plus a business committee. He said, “We are just waiting for the bill to pass to complete” the reorganization he described. Beaulieu also said that the “progressives” at White Earth, who had led in these efforts, had in mind two individuals to propose for their superintendent, should the bill pass.11 The second White Earth delegate, John W. Carl, asserted that one of the purposes of the White Earth incipient government was to secure appointment of Indians to all agency positions. He said, “Every position on the . . . Reservation to-day could be filled and carried on by members of the White Earth Reservation.” 12 Another Indian proponent of the Stephens bill was J. F. Estes, the postmaster of the Greenwood post office at the Yankton Sioux Agency, who submitted a long statement asserting that abuse of authority by agents had led to deaths from starvation and cold on his reservation and that the Sioux Indians generally were demoralized because they could not control their own affairs. He said of the bill: “This measure is, in many features, a complete innovation. To our people it appears as a Magna Charta, a charter of libetries [sic] or a Declaration of Independence touching our government. With one fell swoop the proposed law will carry us from a state of dependent beggars to that of independent, self-respecting citizens. It will give to us in a larger degree selfgovernment and representatives from our own people.” 13 The committee hearings also reproduce a statement, signed by Carl and Estes, reporting that “members of Indian tribes now in the city of Washington” had “strongly indorsed” h.r. 25663 at a “Meeting of Representatives of the Several Tribes of Indians” held on January 27, 1913. A letter from Richard H. Pratt opposing the bill was not printed in the hearings but stated the terminationist reaction to the proposal. Pratt wrote Representative Stephens that “having the bad agency system on our hands, change of the method of selecting control does not promise any material relief. We must get rid of the system root and branch.” He charged, “Your bill tends to drive together instead of disintegrate. The bright fellow who may have a growing intention to quit being an Indian and become a citizen will be led to hold on in the hope of becoming an agent.” 14 No further action was taken on the bill. Perhaps the initiative for this effort came from the progressive faction at White Earth; if so, the fact that their representative did not sponsor the bill may have been an indication of how little support their representative had for their views. The only recorded comment by Representative Stephens on the bill came at the beginning of the 1913 hearing, when he gave it a somewhat less than enthusiastic endorsement. Stephens described the bill as “only tentative” and said that “it contains many provisions that I think will be wise and would

120

A Fateful Time

tend to interest the Indians in their affairs and would give them more power and authority in the management and control of their business through the business committee, provided for by election, in this bill. There are many provisions that I would not be willing to say that I would favor at the present time, but the general principles of the bill I do favor.” 15 Only two Indian groups supported the Stephens bill. Since there was no national Native American network, probably most tribes did not hear about it. The two groups that testified for it were from the same part of the country and are only about 260 miles apart, but it may have been more important that the Yankton Sioux who testified for the bill was a Washington delegate from the Yankton Sioux Reservation. As the hearings show, there was an attempt to unite delegates already in Washington behind the bill. It is also unlikely that many governments could have sent a delegate to testify on it had they known of the opportunity, because of Bureau control of their funds. Similar bills were introduced in 1916 by first-term Democratic senator Edwin S. Johnson of South Dakota and also in the House of Representatives. Johnson said that his bill was based on the Stephens bills, and he included the subcommittee report on that bill in the Senate hearings on his own measure. Johnson was a banker-rancher who had learned the Sioux language; in his successful 1914 race for the Senate he defeated Representative Charles Burke, the future commissioner of Indian Affairs. Johnson did not run for reelection in 1920 and so did not get a chance to introduce the bill in a later session.16 Johnson admitted at one stage of the attempt to secure passage of his bill that he had introduced it because at an unnamed reservation in his state, “there [was] almost universal objection among almost all the Indians to their superintendent.” Although the inception of Johnson’s bill apparently was a response to local conditions rather than concern for wider Indian policy, his bill received support from at least one Indian government. President Robert J. Hamilton and four delegates of the Blackfeet Tribal Council in Montana wrote the Senate Committee on Indian Affairs on March 25, 1916, strongly endorsing “the right of nomination bill.” 17 As introduced the 1916 bill, s. 3904, would have applied in only a few states—Arizona, Idaho, Minnesota, Nebraska, New Mexico, North and South Dakota, and Wisconsin—and in a few reservations in Oklahoma. The bill would have allowed Indians in those states to have a hand in nominating or dismissing agents or superintendents. It provided that an election, when Indians on a reservation petitioned for it, could be called to vote on the fitness of an agent or superintendent. The bill also stated that no agent or superintendent could be appointed or retained without the “consent, in writing, of a majority of the [male] Indians over the age of twenty-one years resident within

The Tribal Alternative

121

the jurisdiction,” so presumably it was expected that such elections would be called before superintendents took office.18 Senator Johnson admitted during the hearings on his bill that its provisions would allow the secretary of the Interior to refuse to appoint individuals approved of by the Indians in an election, but he said that the ultimate choice would have to be approved by Indian voters.19 His bill lowered the percentage needed for Indian approval from the two-thirds requirement of the Stephens bills to a majority, but the fact that this majority had to be calculated on the basis of the entire adult male Indian population of the reservation meant in practice that more than a simple majority of those voting would normally have been required. Johnson’s bill followed the Stephens bills in providing that the election board, which was to be chosen by Indians, would continue after the election as a business committee. Members of this committee would serve two-year terms; regular elections at two-year intervals were contemplated, although this point is not stated explicitly. The bill would have assigned important functions to the business committee; its consent would have been required for the appointment of agency employees and it would have been given the authority to veto the use of tribal funds and the leasing of allotted lands. The bill also included a provision for Indian preference in the selection of agency employees. For the first time a bill based on the tribal alternative passed out of committee and was considered on the floor of the Senate. However, this occurred only after several modifications. The original version was defeated by a tie vote in the committee. A subcommittee then developed a new bill (s. 5335), which provided only that Indians on a reservation could, by means of an election, force the removal of an agent or superintendent who was not approved by Indians in an election. However, this was not acceptable to the full Committee on Indian Affairs, and another subcommittee further restricted the measure to reservations in South Dakota.20 In this form, s. 5335 reached the floor of the Senate on August 5, 1916, under procedures requiring unanimous consent. Several senators expressed opposition, and the minority floor leader, Republican Jacob J. Gallinger of New Hampshire, said that he opposed the bill because it would set a precedent for other states. Gallinger formally made an objection to the bill, and it was dead.21 Although ultimately defeated, the Johnson bill did get a hearing and some significant responses from government and nongovernment sources. Thomas L. Sloan again supported the original bill, but the administration opposed it vigorously. Secretary of the Interior Franklin K. Lane, in a letter to the Senate Committee on Indian Affairs, said Johnson’s first bill was “disastrous, and should not be enacted.” He asserted that “the Indians, generally speaking, are

122

A Fateful Time

not prepared or ready to take so complete a control of their own affairs as contemplated” and that the effect of the bill would be that “the full bloods, especially those of the older generation, would be at the mercy of the more shrewd mixed bloods as well as unscrupulous and self-interested white men.” Lane also claimed that if the bill became law the Indians would spend most of their time in “electioneering, to the detriment of their farms, stock, and other industrial activities.” In general, he said that the bill was “so radical and farreaching that the plan strikes me as impracticable and undesirable.” The strong language expressing his opposition seems disproportionate to the arguments made in his letter.22 In opposing the later version of the bill, the secretary added the charge that “designing and unscrupulous persons” could manipulate “factions” on reservations to the detriment of the Indians and that only “agitators” were dissatisfied with the Bureau. His remarks as a whole amounted to a thorough attack on the capacity of Indians to govern themselves. In reply to this argument, Senator Johnson said that the commissioner of Indian Affairs called all opponents of his policy “agitators.” Johnson vainly pointed out that the secretary’s objections were those “that have always been raised to prevent the Indians from having anything whatever to say about the management of their own affairs.” 23 Johnson defended his original bill as a device “to permit the Indians on reservations to take the first step toward their independence.” When several members of the Senate Indian Affairs Committee expressed doubt that the Indians would be able to make wise choices in elections, Republican North Dakota senator Asle J. Gronna suggested that only “competent” Indians— those judged by the Bureau to be able to handle their allotments without Bureau supervision—should be permitted to vote in the elections called for by the bill. Senator Johnson objected that it was the agents or superintendents who decided which Indians were “competent”; therefore such a restriction would allow unpopular Bureau officials to defend themselves by making arbitrary judgments on competency.24 Attorney Sloan supported Johnson’s point by charging that agents had been known to threaten Indians for opposing their policies. Specifically, he asserted that members of a delegation of the Comanche Tribe of Oklahoma who had come to Washington to testify on legislation were “threatened by the agent in charge of their reservation that if they came here their moneys and the moneys of their friends would be held up and not paid to them, simply because they came here to seek legislation independently of the Indian Office.” 25 In the subsequent discussion it appeared that several senators accepted the view that there were many Indians incapable either of handling their own property or governing themselves. This congressional interest in bills based implicitly on the tribal alternative

The Tribal Alternative

123

led to or corresponded with related proposals by several Indians, although precisely how these matters were related has not yet been traced. Laura (also known as Minnie) Cornelius, an Oneida Indian who was one of the founders of the Society of American Indians, had proposed the establishment of Indian corporations at the founding meeting of the society in 1911 and pushed similar ideas over several years.26 Cornelius, who by 1916 had married attorney Orrin J. Kellogg, presented some kind of proposal to the Senate Committee on Indian Affairs, which was considering the revised Johnson bill, but unfortunately the hearings do not include the text of her suggestions. She told the committee, “We are not going to be indefinitely the puppets of another race, and that is exactly what we are coming to, and when you dispose of the properties that we have we look forward to nothing but pauperism.” She said that her proposal was “based upon . . . self-government, and not in opposition to the principles of democracy, and if it is done I begin to see a little hope, and I think we will stand the searchlight of public sentiment.” While Kellogg’s proposals are not explained in detail in the hearings, apparently she suggested that those Indians who accepted private property and the culture of the non-Indian society should be encouraged to leave the reservations. For those who remained, she would have created democratically elected corporations to manage the common property of the society. She said, “I have provided in this bill that a system of ‘commonizing,’ as I call it, shall be worked out, whereby we eliminate the man who has no sympathies with the man who wants to have communal holdings.” 27 The members of the committee did not show much interest in her proposed bill and took no action on it; it was not even included in the printed hearings. In a book published in 1920, Kellogg said a little more about her plan, which she called the Lolomi Program of Self-Government. (Lolomi, she said, was a Hopi word meaning “perfect goodness be upon you.”) She was opposed to the breaking up of reservations, because “the dismemberment of the Indian domain puts the Indian out into the labor world of the white man, helpless.” For the same reason, although she considered the Bureau of Indian Affairs to be “despotic” and its control of Indian life to be deadening, she did not want to see it destroyed. What she desired was some way to curb the power of the Bureau and allow Indians to make their own decisions without losing legal protections for Indian property.28 Kellogg’s solution to this dilemma was “Federal incorporation of a selfgoverning body.” Such a corporation would be a cooperative, in which each member would have only one vote, regardless of the number of shares held. This feature was designed, she said, to “avoid the domination of the rich man over the smaller shareholder.” Moreover, shares in the corporation would not

124

A Fateful Time

be transferable except to the corporation, and all transfers of shares would have to be approved by all members of the board of directors. Obviously, these features were designed to ensure that the shares stayed in Indian hands. Another protection she thought necessary would have come from the fact that the property of the corporation would have enjoyed trust status; however, it would have been held in “fee simple title” and taxable after a “trial period.” 29 The Indian corporations she envisaged could have engaged in a number of different economic activities, primarily agricultural but including the operation of retail stores. She compared her idea with some of the early cooperative practices of Mormon villages. It is clear that she thought of the democratically organized group structure as a nucleus for all community life on a reservation. While the plan had not been worked out in detail, her basic structure of ideas clearly was the tribal alternative; Indians were to be allowed to choose to use modern corporate devices of the cooperative type, because these were based on democratic principles. Kellogg, born on the Oneida reservation in Wisconsin, dropped out of the Society of American Indians after about two years, and for many years afterward led in efforts to secure land for various components of the Iroquois Confederacy. Laurence Hauptman points out that in such efforts she was supporting traditional values and governing practices. Although her attempt to secure a return of Iroquois lands through litigation failed, these efforts prepared the way for more successful court suits in the 1970s and 1980s. Hauptman wrote that “despite her exceptional gifts—a brilliant mind, beauty, self-confidence, unusual oratorical abilities, and her educational attainments—Kellogg is also the most controversial Iroquois leader of the twentieth century.” She and her husband and followers collected large sums of money from Iroquois with extravagant promises never kept; nor was the money returned. She was indicted several times for crimes in connection with these activities, although never convicted, and ultimately lost her support among Iroquois. All of these activities occurred after her earlier espousal of the tribal alternative.30 Another leader of the Society of American Indians, who was also an editor of Collier’s, advocated similar ideas at the same period. Cherokee John M. Oskison published an article in 1917 entitled “In Governing the Indian, Use the Indian!” Oskison charged in this article that “there has been a thirty-three-year period of suppression which has done infinite harm to the theory of Indian leadership,” with the result that “old-time Indian leadership and wisdom fell under the ban along with long hair and the shoulder blanket,” their authority replaced by the power of government-appointed agents. “Councils continued, but more and more they were spoken of by the agents as long-winded, timekilling powwows.” He wrote that Indians like himself had accepted “white civilization” but that many “full-bloods . . . still must be shown how to walk in

The Tribal Alternative

125

the white man’s way.” Consequently, he proposed that “educated, or otherwise capable, Indians [should have] a larger part in the administration of Indian affairs,” including in “positions of leadership.” Oskison pointed out that it had been forty-five years since General Ely Parker left the office of commissioner of Indian Affairs and remarked that “no one of Indian blood has since been found worthy to hold that office!” He did not offer specific ideas about how this theory could be carried out, and whether there was any connection with the Johnson bills, which were being considered at the same time by Congress, is not known.31 In 1922 the Senate Committee on Indian Affairs solicited Indian opinion on a bill to require that proposed legislation applying to Indians “be submitted to Indian councils.” The bill also contained provisions allowing Indians to elect tribal councils. The details of the bill are unknown, but this information comes from the Interior Department letter opposing it. Acting Secretary of the Interior E. C. Finney opposed the bill, saying that it could “cause endless controversy and delay” but also that “in many cases the large majority of the Indians are not competent to determine what is best for their needs, and action of the council would not be as safe a guide as the studdied [sic] plans of the Administrative body of the Government or of the Congress itself.” Like Secretary Lane in 1916, Finney argued that Indians were divided by factions and that action by councils would make it difficult to determine “the real sentiment or action of the tribe.” At least three Indian groups favored the bill. In February 1922 a meeting of the Swinomish Tribe of Washington elected a committee to lobby for the bill, and in March the president and two other officers of the Flathead Tribal Council endorsed it, as did two delegates of the Blackfeet Tribe of Montana. The Blackfeet letter, to Senator Selden P. Spencer from Robert J. Hamilton and Thomas G. Bishop, replied specifically to the statements made in the Finney letter and asserted, “To deny the Indians the right to pass upon matters and to say what shall be done with their tribal funds and property, is to deny them a fundamental right which you as a white man have under the Constitution of the United States. Your property cannot be taken without due process of law. The property of the Indian can.” The letter did not comment specifically on the provisions to elect councils. The bill was also endorsed by the Society of American Indians, and there is a six-page statement supporting a similar House bill, sent from Washington, D.C., which may have come from the American Indian Defense Association.32 Obviously these sporadic and probably uncoordinated efforts to gain legislative approval for governing structures that would allow Indians themselves to adopt a democratic form of government if they chose to do so went nowhere because most persons concerned with Indian policy at the national level were not ready to contemplate the possibility that Indians were “compe-

126

A Fateful Time

tent” enough to govern themselves. There were many Indians at that time who lacked the ability to deal effectively with non-Indians eager to secure control of their property; the principal losses of Indian allotted land occurred after Indians were granted fee simple title to such lands. But there is little evidence that Bureau employees were better able to protect Indian land or manage the extensive Indian lands and resources that remained unallotted than Indian governments would have been. In fact, the Bureau’s record in protecting Indian lands was absymal. Losses of allotted lands were massive and poverty rates on Indian reservations appallingly high, even though many of them had resources that could have been used to support their populations. Substantial rethinking of the foundations of Indian policy, based on a concrete, well-worked-out proposal, would be necessary before the tribal alternative could become a viable option to the other ideologies in the field of Indian policy. A step in this direction took place in the late 1920s when the Klamath Tribe of Oregon came to Congress with a proposal to establish a corporation to manage and develop their substantial timber resources, although their initiative alone was not enough at this time to produce a change in national policy.

The Klamath Incorporation Bills The basic notion of the incorporation idea as it applied to Indians was that in order to manage tribally owned resources that could not be allotted to individuals, an Indian-controlled corporation might be formed. J. O. Kinney, chief forester for the Bureau of Indian Affairs, said in 1929 that the idea was first broached in 1910 by an official of Menominee Indian Mills “for the holding of the forest resources of the Menominee Indians in Wisconsin.” However, Kinney was not in favor of the idea unless the Interior Department—not the Indians— controlled the corporation.33 Thomas J. King, the official involved, had written in a 1910 report to the commissioner of Indian Affairs that a tribally owned corporation could most effectively manage the Menominee forests. His idea did not embody the fundamental notions of the tribal alternative, however, because the corporation he proposed would have been “entirely in the hands of” the commissioner, not the Menominee Indians, and because he saw it as a means of carrying out the “policy of the Government . . . to do away with the tribal relations of the Indians.” 34 There were other, scattered endorsements of the corporation idea from time to time. In 1910 former Commissioner of Indian Affairs Francis E. Leupp, in his book The Indian and His Problem, proposed experimenting with Indian corporations. Leupp thought that corporations controlled by the government

The Tribal Alternative

127

could prove a useful way to handle Indian lands that had not been allotted, and wrote that in 1906 he had submitted a bill to both Committees on Indian Affairs to incorporate the “Choctaw-Chickasaw Coal, Oil and Asphalt Land Company” to handle tribal lands in Oklahoma and later drafted “a general incorporation prospectus for Indian tribes,” which he showed to some members of Congress.35 The first clear-cut incorporation proposal that embodied the basic ideas of the tribal alternative ideology came from Laura Cornelius Kellogg, as noted above. Her ideas clearly included the notion that the proposed corporations would be elected and controlled by Indians and would be instruments of self-government by Indians. The Meriam Report, as noted in chapter 3, had suggested that experiments be conducted with the incorporation idea to deal with “great natural resources which are not susceptible of individual allotment” and in which large units would make it easier for these lands to be “conserved and used effectively.” The two reservations suggested for initial experiments were the Menominee and Klamath Reservations, both of which had large tribal forests. Extending the corporate device to Indians was not a way to increase Indian self-government, however; while it was suggested that Indians could be issued shares of stock in the corporation, majority control would be retained by the national government. Moreover, the shares of “incompetent” Indians would be held by the government, and the Indians controlling their shares would be allowed to “pledge them as collateral for a loan for working capital.” This means that these shares could pass into non-Indian hands.36 John Collier was advocating Indian-run corporations as early as 1926. In that year he endorsed the idea as one of several means of reversing “the traditional policy of the United States to destroy Indian tribal life.” He suggested that legislation could be passed “authorizing Indians to form partnerships and corporations for the handling of their own property in modern ways, under the supervision of the federal courts.” From the beginning Collier proposed that “the tribal corporation will be governed by its Indian shareholders”; he never contemplated corporations controlled by the government or by capital rather than people.37 As reported above, experimentation with the idea was endorsed in the 1929 letters largely drafted by Collier, which were sent to Congress by Secretary Wilbur and Commissioner Rhoads, although as an alternative to strengthening tribal councils. The first incorporation proposal taken seriously by Congress came from Indians on the Klamath Reservation in south-central Oregon. The Klamath Indians were the largest group on a reservation that included also Modoc and Northern Paiute Indians. As of 1930, this reservation contained 242,000 acres of farmland allotted to individual Indians and 865,000 unallotted acres. Most of the unallotted portion of the reservation consisted of valuable forest land,

128

A Fateful Time

which by that year had for some time been harvested for sale. Because of proceeds from timber sales, the Indians on the Klamath Reservation were better off economically than most. In 1929, timber sales had brought the tribe an income of $1,393,743, which had made possible annual payments of $600 to $700 each to individual tribal members.38 This relatively high tribal income was also used to pay the expenses of a Washington delegation to lobby on behalf of the tribe. In 1928 the delegation was headed by Levi Walker and included Wade Crawford and his wife, Ida. The original incorporation proposal came from this committee. However, members of the Klamath Tribe were divided on the purposes of incorporation; the initial proposal, advocated by Walker, would clearly have been a step toward termination. Walker claimed that the measure he favored had been approved by a general council held on the reservation in March 1928.39 h.r. 10703, the 1932 version of the Walker bill, was called a “final settlement bill.” While it provided for an elected business committee that would be granted authority over economic matters on the reservation, its heart was a proposal to pay each tribal member immediately $3,000 from tribal funds and to establish a three-person committee whose task would be to survey the unallotted lands so that the secretary of the Interior could sell them and distribute the proceeds to individual members of the tribe.40 During the Burke administration, an earlier version of this bill was opposed by Acting Secretary of the Interior Finney. He objected both to assigning authority to the business committee and to the termination-oriented aspect of the bill. “The present authority of the tribal council is advisory only,” he said, adding that “it is not believed that the council should be given any administrative authority in the control of reservation matters, as this would divide and weaken the responsibility for the conduct of tribal affairs.” Finney objected specifically to proposals to allow the business committee to control spending for roads or irrigation projects (although he noted that the 1891 law that had played a critical role in establishment of the Navajo Tribal Council required tribal consent for the leasing of lands).41 Finney also opposed the termination aspect of the bill. He said, “In effect, this would practically wind up the tribal affairs of the Klamath Indians. The proposal is so revolutionary that I can not give it my sanction, aside from the administrative complexities involved.” The old issue of “competence” came up; noting that the bill would have made payments to all Indians, including those not determined to be “competent,” he predicted that “many of [the latter] would likely spend the money in a short while and have nothing left to show for it.” In 1929 the Klamath delegation was revamped; Walker was dropped from it

The Tribal Alternative

129

and Wade Crawford became its leader. Walker apparently was not recalled as a delegate to Washington (with consequent cutting off of his expense moneys) by the business council until April 12, 1932, but after 1929 the delegation was dominated by the Crawfords. Wade Crawford said that the bill they backed had been approved by two general councils of the tribe in 1931.42 Crawford asked for and received the support of the Rhoads-Scattergood administration in refining the proposal. In 1932 he told the Senate Committee on Indian Affairs, “I went to Secretary Wilbur through a letter of Vice President Curtis to the Secretary, asking him to give us the assistance of an attorney in drafting this legislation.” 43 Crawford said that the Klamath delegation had been lent the services of the best “corporation lawyer” in the department for this purpose. E. E. Roddis, an attorney with the Interior Solicitor’s office, told a 1930 Senate committee that he had drafted the Klamath incorporation bill, although he assured the senators that the Indians had provided the ideas behind it. Roddis said that Mr. and Mrs. Crawford and a Mr. Chester, “the authorized committee of the Klamath Indians,” had told him what they wanted; his role was to assist them in “writing up what the Indian committee wanted in the way of legislation.” Roddis declined to express an opinion about whether the Klamath Tribe was ready to operate such a corporation but indicated a general preference that it be granted substantial authority. He said that the delegation had wanted “to give to the Indian tribe, or to the corporation, the authority to handle the property” of the tribe and that he had wanted to “give them as much authority as was possible.” 44 The Crawford incorporation bill was first introduced by Republican Senator Charles L. McNary of Oregon on October 30, 1929.45 s. 4165 proposed the incorporation of the Klamath Indian Corporation by a federal district court judge after a majority of adult tribal members had signed a petition requesting such action. All tribal members were to be members of the corporation, with equal shares; all members twenty-one or over would have been entitled to vote in corporate elections (section 2). Thus the corporation would have been democratically controlled. A key provision of the bill was that “all property, real and personal, held in trust for the Klamath Tribe by the United States shall be transferred by the Secretary of the Interior to the Klamath Indian Corporation” upon its formation (section 3). However, this property was to be held in trust status for no less than fifty years, and there was a provision that “no authority is granted to sell any of the real estate included within the limits of the Klamath Indian Reservation, Oregon, to other than members of the Klamath Indian Tribe” (sections 3, 4). Moreover, the bill provided for continued exemption from state and

130

A Fateful Time

local taxation for Klamath properties, “until otherwise provided by Congress” (section 14). These provisions were obviously designed to prevent the loss of Klamath lands to non-Indians for at least the standard fifty-year trust period. There was a terminationist aspect of this bill, however; a key provision was that, upon organization of the corporation, “all jurisdiction of the Bureau of Indian Affairs over the Klamath Reservation will be terminated” (section 16). The corporation was authorized to contract with the state of Oregon or local governments to secure “educational, medical, or other services” that the Bureau had provided previously (section 12). Two governing bodies of the corporation would have been established by s. 4165. On the one hand a salaried, nine-person board of directors was to be elected by the shareholders—tribal members—at annual meetings, although after the first year the terms of board members were to be staggered to ensure continuity. The board was to elect its own officers, who did not have to be members of the tribe, and conduct the affairs of the corporation (section 6). On the other hand the bill also would have created a board of supervision to consist of three salaried officers—two elected by the shareholders for twoyear terms and a chairman appointed by the president of the United States. The board of supervision was to “assist” the board of directors, “require an adequate system of accounting,” make annual audits, and have the authority to “approve any obligations sought to be incurred by the corporation in excess of $1,000” plus all purchases of allotted lands or transfers of stock to minors (section 9). Another section of the bill authorized the corporation to acquire allotted lands of members of the Klamath Tribe by “mutual agreement” between the owners and the board of directors (section 7). This might have provided a means of halting the loss of Indian land as a result of the allotment policy. The attitude of the Rhoads-Scattergood administration toward this bill was confusing, but it is clear that they opposed the specific proposal coming from the Klamath Tribe, although they never came up with an alternative version. Secretary Wilbur repeated his earlier endorsement (in the 1929 letters) of the general concept in a radio address on April 20, 1930. But he also emphatically indicated that he saw incorporation as a step toward termination, because he coupled his endorsement with the statement that “it must be the endeavor of the Government to secure the gradual transfer to the ward of all of the normal functions of American citizenship.” 46 In 1932 Wilbur illustrated his viewpoint by urging the Senate committee considering the bill to amend it by requiring that the Klamath Indians begin to pay state and local taxes, over a period of years. He wrote, “The ordinary tax procedures of the State should apply to all property, including the corporate property, in order that the Indians may secure the normal services of State and

The Tribal Alternative

131

county governments. Taxes on the corporate property are to be paid by the corporation as is customary.” Because of this and other problems with the bill, Wilbur said that he agreed with Commissioner Rhoads “in the recommendation that action on the bill be deferred for the time being.” 47 In a letter to the Senate Committee on Indian Affairs commenting on the 1932 bill, Rhoads declined to discuss the proposal specifically or to endorse it. He noted that there were several problems with the incorporation idea and said, “The Indian Office has a modified plan not yet fully developed which we would like to submit to the committees of Congress for criticism and suggestions.” 48 Consequently, he asked that action on the Klamath bill be deferred. In 1930 Rhoads had held a similar view; he recommended that the bill be “considered in conjunction with the general study being made of the question of permanent disposition of Indian tribal assets referred to in my letter . . . of December 11, 1929.” He wrote that finding a way to handle the “indivisible tribal assets” of Indians was “of vast importance and will require the best thought” of the Bureau and Congress. Rhoads discussed the incorporation idea itself as only one of three possible methods for dealing with the problem as he had outlined it. The other ideas were to create state or local “joint stock association[s],” or to turn over tribal assets to “a reputable trust company” (which was Joseph Latimer’s idea, although it is unknown whether he was the source of this notion). Presumably this viewpoint reflected partly the attitude of field personnel of the Bureau; in 1932 the superintendent of the Klamath Agency presented to the Senate committee an alternative plan based on the creation of a state “association” to handle Klamath properties.49 The best that the commissioner could say for the incorporation bill in 1930 was that “the theory upon which the legislation is based may be sound, but until studies which are now being made are completed we are not in a position to discuss the details or submit any concrete plan of procedure in handling this question.” 50 Two years later, in its last year in office, the Rhoads-Scattergood administration was still studying the matter and still blocking any action on incorporation legislation. The divided condition of the Klamath Tribe on the specific plan before Congress, the indications that the administration itself did not have a unified position, and the failure to back any specific proposal guaranteed that no Klamath incorporation bill could become law until the general political situation changed fundamentally. Nevertheless, a number of issues that bear on the development of the tribal alternative were discussed during hearings on the proposal in 1930 and 1932. One issue discussed before Congress was whether the corporation, which would have lacked the authority to raise money by taxation, would have been able to raise sufficient revenue to pay for the services to be secured from state

132

A Fateful Time

and local governments by contract. The hearings produced no certain answer to this question. Another issue was the old question of “competence.” The 1932 hearings brought out that the Klamath committee headed by the Crawfords had suggested the supervision board as a safeguard against costly mistakes that might be made by the Indians. The only significant change made in the 1932 bill by the Senate committee was to replace one of the Indian members of this board by a member appointed by the federal district court. This change would have put the Indians in a minority on the board.51 After the 1932 hearings, Assistant Commissioner Scattergood wrote Roger Baldwin of the American Civil Liberties Union explaining more about the Bureau’s reluctance to support the Klamath bill. He said that while “the incorporation plan has fascinated us for three years,” the Bureau had “failed to find a plan which will safeguard the interests of the majority of the Indians concerned. You will realize that we cannot lightly use the Klamath properties (valued at upwards of $10 million) as an experiment for other tribes.” 52 Scattergood also wrote in this letter that “the Klamath Indians, you know, are still quite divided on the subject; in fact, ‘incorporation’ has become a symbol with such an emotional content that the Indian leader who most favors it told some of us that his people would not now accept any plan under that name.” The Crawfords had testified that they saw their bill as a way to reduce Bureau control over Indian lives by transferring Bureau authority to an Indiancontrolled agency. Wade Crawford spoke of the “tyrannical way” in which the Bureau handled their property, and Ida Crawford said that the Indians on the Klamath Reservation were “serfs” because they were not allowed to handle their own affairs. She said, “We have a council composed of eight members of the tribe; but we have not anything to say about our affairs” because “the bureau has the last arbitrary say.” She insisted that the members of the Klamath Tribe “must be put into control of their affairs” and that the incorporation bill was the way to accomplish this end.53 Gertrude Bonnin, in a written statement on behalf of the National Council of American Indians after she had declined an opportunity to testify in person, endorsed the bill, saying, “The idea of Indian incorporation is welcomed by all Indians who desire a voice in their own affairs and management of their own property.” 54 Collier endorsed the 1932 bill on these grounds, saying that the basic concept behind the bill was “that Congress, by law, shall vest in the Indians an authority that can be taken away only by Congress, to handle their own affairs.” In 1932 he said in testimony that “the reason why this bill is so important and is of such great interest is that it is an experiment in behalf of a great many Indian tribes . . . [i]n self-government.” 55

The Tribal Alternative

133

However, Collier said that the principal virtue of the bill was that it might provide a successful means of allowing tribes to recover allotted lands. He said, “All of us are very familiar with the fact that the most difficult, the most baffling, and the most crushing problem in the whole Indian field is the allotment problem.” He added that “from the point of view of the organization that I am connected with, the very idea of tribal incorporation . . . took its origin in a [sic] effort to solve the problem of what to do with the allotted land, how to stop this disinheritance of the allotted Indians.” 56 However, at this time he was not thinking of ending allotment altogether, because he went on to say: “Obviously what has to be done is to provide some means by which allotted land can be gathered up into larger bodies, operated by groups of Indians, and reallotted according to the needs of to-day as contrasted with the supposed needs of 30 years ago when it was originally parceled out.” Collier then said that the provision for tribal purchase of allotted lands was “possibly more important than any other section of the bill, more important because it deals with a greater amount of Indian property and a greater number of Indians, if it were applied to the whole country.” In a discussion with Assistant Commissioner Scattergood on this issue, Collier agreed that many tribes did not have the funds that the Klamath Indians had with which to buy back allotted lands. Scattergood said, “To solve that, we have been proposing and have been baffled by the Budget, a fund to be set up by the Government to be drawn upon to purchase back land to the tribe in order to be available again for resale or for other uses.” Collier agreed that such a fund was “absolutely necessary” and said, “Obviously some form of credit has to be created in order to enable the repurchase of the land.” 57 This was the source of one of the ideas, about how to restore the Indian land base, that became part of the Indian Reorganization Act. The Menominee Tribe of Wisconsin, like the Klamath Tribe, owned extensive forests. A lumbering operation utilizing these forests on a sustained-yield basis had operated since passage of a special statute in 1908. Ralph Fredenberg, a representative of this tribe, said in 1934 that the tribe still owned about 800 million board feet of lumber. He said that “4 or 5 years ago we tried to pass special legislation pertaining to the Menominees, that would have in a sense given them self-government.” The bill did not proceed to a hearing, partly because the session in which it was introduced was the lame-duck session of the 71st Congress. As Fredenberg put it in 1934, “We were not successful in attracting the attention of a great number of people to the bill.” 58 Nevertheless, this measure represented another Indian initiative in the direction of the tribal alternative. Fredenberg said in 1934 that his tribe supported the Indian Reorganization Act because it wanted to protect itself against possible allotment (no allotment

134

A Fateful Time

had yet taken place on the reservation) and against occasional hostility from its neighbors. He said that it still favored the incorporation idea. For example, he reported a great deal of pressure to overturn a decision by the Menominee government that had closed the reservation to trout fishing, to allow the fishery to recover. He told the Senate Committee on Indian Affairs in 1934 that the Menominees endorsed the basic principles of the draft ira bill because “under the provisions of this bill, which allows us to set up our own system of selfgovernment and our own system of incorporation, or whatever we might make, which would be a cooperative organization prescribed by legislation, we would be secure and we would be able to hold and protect this property.” 59 During the termination period of the 1950s, both the Klamath and Menominee Tribes were terminated, although later the Menominees were restored to recognized status. Their possession of valuable tribal resources played a role in this unfortunate result, which so far has been permanent for the Klamaths. Whether congressional approval of their incorporation plans at the time they were pressing for them would have helped the Klamaths escape this fate is not known but probably depends on the form incorporation would have taken. One group within the Klamath Tribe wanted to use incorporation as a means of disposing of its most valuable tribal resource, but the faction that became most widely supported in the late 1920s and early 1930s rejected this approach. In retrospect, it is apparent that the incorporation idea for large, nondivisible resources could be viewed in two different ways. On the one hand, it could be a means of ending tribal existence, but on the other hand it could be a means of curbing the power of bia officials without destroying the unity and sovereignty of Native American societies. In any case its basic idea was that Indians themselves should make the decisions about the use of Indian resources.

Conclusions All incorporation proposals cannot be seen as aspects of the tribal alternative ideology. The earliest proposals, along with the stance taken toward them by the highest officials of the administration during the Rhoads-Scattergood years, make it clear that to some bureaucrats and some high officials incorporation was simply a device by which the bia could control the development of tribal resources that, in the nature of things, could not be parceled out to individuals. But as Laura Cornelius Kellogg and John Collier and the faction of the Klamath Reservation that asked for a specific incorporation bill for their reservation interpreted the idea, the notion did fit with the goals of the tribal alterna-

The Tribal Alternative

135

tive. Provided that the corporations envisaged were democratically controlled by members of Native societies rather than the bia, they offered a possible means to accomplish two aims. First, they offered a possibility of reducing the oppressive control of Native American societies by government officials while avoiding termination. Second, corporations offered a mechanism by which these societies themselves could opt for democratic means of controlling tribal properties that could not— or should not—be converted to individual holdings. Collier made it clear that he saw incorporation as a possible way to administer agricultural as well as timber lands, for example. In other words, incorporation offered a way to get some economic development without the disintegrating effects of the allotment policy. Necessarily, however, the idea of incorporation meant a shift to democratic conceptions of decision-making as these were understood in the general American society. In those Native American societies in which theocratic or consensus-based traditional leadership patterns not requiring periodic elections still prevailed, cooperative organizations were as out of place in the economic sphere as they were in other areas. This fact illuminates a feature of the tribal alternative that is obscured in examining the ideas of John Collier. In the interpretation taken here, Collier started with a passionate desire to preserve the right of Native Americans to be culturally different from the surrounding, non-Indian society. But at the same time he urged Indians to decide by democratic means how they wished to govern themselves, within the existing legal structure of Indian law. It is suggested in the next chapter that he saw no contradiction between these viewpoints, in part because he understood that some Indians already had opted to abandon in major ways their traditional views and to adopt the economic and political/governmental views of the surrounding society. The degree to which earlier proposals for legislation to empower Indian governments were known to or influenced the attitudes toward Indian policy of important bureaucratic and legislative leaders in the Indian policy field during the 1920s and the Rhoads-Scattergood years is not known at this point. In any case, examination of the principal reason why no experiments with the tribal alternative approach took place before the 1930s makes it clear that the chief impediment to such experimentation was the inability of non-Indian leaders in this field, with rare but important exceptions, to imagine that Indians could be capable of running their own complex modern organizations. Up to the end of the Rhoads-Scattergood administration, an important roadblock to securing congressional approval of these moves toward the tribal alternative was the fear that Indians were not “competent” to handle any of their property without Bureau control and the protections of Indian law, which had defined Indian reservations as lands held in trust status by the

136

A Fateful Time

national government. Trust status had meant, among other things, that Indian lands could not be transferred to non-Indian ownership without agreement by the U.S. government. In large numbers of individual cases, the loss of Indian land was not only approved but forced by this government, through the carrying out of the allotment policy. But by the early 1930s, to a considerable extent because the Meriam Report had made painfully apparent the very large losses of Indian lands actually brought about by allotment, there was growing realization that the allotment policy had not worked. The knowledge of what had happened as the result of an earlier massive experiment with the ways of life of Native peoples may have contributed to unease in the face of a new and quite different proposed experiment. With effective opposition from the Rhoads-Scattergood administration and a general climate that did not favor change, there was little chance that either the Klamath or Menominee bills would become law. Moreover, there is no evidence of serious consideration of the tribal alternative that implicitly lay behind these proposals from two Native American societies. However, in 1932 John Collier did back several bills that developed out of the tribal alternative ideology, and later he played a major role in securing passage of the Indian Reorganization Act.

Chapter Six John Collier and the Tribal Alternative

The views of John Collier on Indian policy before he became commissioner of Indian Affairs in 1933 are of central importance to this inquiry. He was the most important figure in creating the consensus that prevailed at the end of the 1920s that Indian policy had failed, and he was the most important single actor in the adoption and implementation of the Indian Reorganization Act. This chapter examines his basic ideas, with emphasis on his views in the early 1930s. Collier was a highly sophisticated and intellectual person, the sort of person most likely to think in ideological terms, in the sense used here. Clearly the structure of his thought constitutes the most coherent and systematic form that the tribal alternative ideology had assumed before passage of the ira. The attempt to make overall sense of Collier’s views is not, however, a simple task. Partly this is because there is so much material to examine. He was wholeheartedly devoted to pursuing Indian interests, as he saw them, for forty-six years; for half of this time—between 1922 and 1945 —he played leading roles in national government policy-making in this area. At all times he wrote extensively—articles, statements, and ghostwritten official documents on Indian policy during the period of his life covered here. In addition, he often testified before Congress. As Lawrence C. Kelly has noted, “Wherever he went during the 1920s and 1930s, he always carried with him a portable typewriter. Whenever there was an idle moment, he dashed off a newspaper or a magazine article, a press release, or a newsletter.” 1 After his retirement as commissioner Collier remained energetically involved in various kinds of activities on behalf of Indians for another twenty-three years and wrote even more voluminously. Another difficulty in determining Collier’s viewpoints is that as someone who tried to carry his ideas into action, he must be judged by what he did as well as what he said, whether considering his efforts in working with others to discredit existing policy and/or develop alternatives to it or his actions as the principal officer of the national government with responsibility for Indian policy. Action in a complex system requires cooperation with others. Certainly Collier was never in a situation, after he became involved in Indian affairs, in which he could act solely in terms of his views about what should be done. His actions, therefore, sometimes were based on compromise—judgments of 137

138

A Fateful Time

what was possible at the time— or responses to events or ideas that he would have preferred not to address at that moment. It is also the case that his ideas were complex and multifaceted, difficult to state all at once. Because observers could not or did not always fit what he said into these wider structures, Collier was sometimes misunderstood. At times he took advantage of this fact to win support for views that might not have received approval if the broader context had been present. There is no convincing evidence, however, that Collier was ever dishonest in stating something to be true that he knew was not.2 Compounding this problem is the undoubted fact that his views changed as he learned more from others and from actual experience with Indian life and government policy. Although he was driven to an unusual extent (for persons primarily involved with public policy) by complex ideas that he had developed at an early age, he was not so rigid that he found himself unable to grow intellectually. Collier was often contentious and difficult to deal with. Kelly, in an excellent and thorough account of Collier’s early life and the first four to five years of his involvement with Indian affairs, has noted that he was often intolerant of opponents, a trait that appeared to be a basic aspect of his character and was undoubtedly related to his being both an extremely able person and intensely committed to living according to his principles. It is easy to see how he could have assumed that people who did not agree with him or who took actions he thought unwise were profoundly wrong in some sense. In spite of this shortcoming, he was extraordinarily effective overall in dealing with many different kinds of people for more than two decades of leadership in this area of public policy.3 Collier has been interpreted somewhat differently by various observers, although all interpretations acknowledge in some fashion his strong desire to preserve Native American cultures and societies. Kenneth R. Philp has written that Collier wished to “resurrect a utopian Red Atlantis” and “build societies where Indians lived in communal bliss.” Lawrence C. Kelly says that Collier’s “goal from the very beginning was a basic change in federal policy, away from the traditional goal of assimilation toward the preservation and conservation of Indian cultures and societies,” although he gives less weight to this part of Collier’s thought than does Philp.4 But others have argued, as the preface to this study notes, that the Indian Reorganization Act, a principal instrument of policy in the Indian New Deal and a statute embodying at least major parts of the ideas he embraced, is assimilationist in its major thrust. Moreover, Collier himself sometimes said that he favored assimilation, as we shall see. Understanding Collier’s views is far from a simple matter.

John Collier and the Tribal Alternative

139

Collier’s Most Fundamental Views In his autobiography, From Every Zenith, Collier reveals that he had several mystical experiences in his youth that convinced him that he must dedicate his life to major efforts to reform society as he found it. There is no doubt he had experiences that he thought were direct perception of some kind of deep reality different from that experienced in ordinary life, although he does not attempt to describe the nature of this ultimate reality. He was not religious in a manner customary in the largely Protestant milieu in which he grew up, but the importance of these mystical experiences marks him as a religious person. By the time he was fourteen, he tells us, he had rejected both the Methodism of his family and the Catholicism he had embraced while attending a school run by Catholic nuns. This rejection of the religious teachings of his youth went beyond a turning away from two variants of Christianity, because he said that he had removed himself “from the absolutist God of any creed, any philosophy.” His later response to Native American religions, coupled with this mysticism, indicates only that he was rejecting one understanding of what religion means, not all religion.5 Two years after this decision, at the grave of his father (his mother had died when he was thirteen), he tells us, he experienced “the crisis in which the determination of my life was set.” This experience had two parts: a “rejection of all desire for worldly or hedonistic success” but also “an affirmation of my own life’s positive choice: to live in behalf of the world’s hope. . . . I saw my life, short or long, as one among the countless billions wherein the striving of the cosmic purpose moves, in joy that contains regret and pain, toward ends which are multitudinous yet are one, on the road which is the goal.” Mystical knowledge is necessarily and inherently difficult to explain to those who have not experienced it, but Collier attempted to summarize this profoundly important experience in two sentences, the first from the writings of Nietzsche and the second added by him: “‘Keep holy thy highest hope; that hope is for the beyond-man who is within present man’” and “Keep holy thy highest hope; that hope is for the beyond-creation which is within present creation.” Another mystical experience, “among many,” he tells us, occurred the next year, when he was seventeen. While camping alone in the mountains he saw a “vision” of “a huge bird, silent and almost as fleet as light, and the bird uttered, silently, a clear summons: ‘Onward, into the struggle not lost and not won, and the immortal effort toward creation in which I, the bird, need you.’ There has been no reading back of subsequent thought into this experience, which remains as the summons or announcement which could not be forgotten or disobeyed through all my later and across my present years.” Collier worked unceasingly during his entire adult life on behalf of efforts

140

A Fateful Time

to change the world, although he did not focus his efforts immediately on the attempt to defend Native Americans. In his early adult life, he might have been described as a social worker, although he never trained specifically for this occupation. For a dozen years he worked with a New York City group called the People’s Institute. During this time he initiated or supported using schools as community centers, established a training school for community workers, and set up an agency to improve moving pictures by issuing evaluations of their moral content, among other things. In all of these endeavors he worked for ideals he believed in, and there are evident resemblances in the views he held then and after becoming an advocate for Indians. In his autobiography Collier claimed such consistency, saying that throughout his life he had possessed “a complex of central purposes.” Because of this evident and powerful coherence of his basic views, the analysis of his ideas offered here draws from different periods of his life to establish the underlying themes, even though it is obvious that his ideas changed in some respects over the years.6 The insightful analysis by Stephen J. Kunitz of Collier’s ideas during the twelve years before and during World War I when he worked in New York City demonstrates that Collier began with a rejection of the values of what he saw as an atomistic liberalism in favor of a search for community. The assimilationist goals underlying the three ideological conceptions of Indian policy examined prior to the tribal alternative were clearly based on a liberalism emphasizing chiefly individualism.7 In his earlier period Collier clearly made a fundamental criticism of modern society; he saw it as basically flawed and in need of radical change. In a 1917 address to the National Conference of Social Work, which Philp calls the “best detailed account of Collier’s social philosophy” at that period, Collier said that the “utopian good which made life endurable for our ancestors through millenniums of time” was based on the fact that “it was usual and universal for each man, each woman, each child, to bear in his or her own bosom the social purpose. Through all of prehistory, and on until a few thousand years ago, the individual realized in action the truth that the society which he knew, the small group, the tribe, depended upon him for its existence, for its survival.” 8 This merging of the individual with society was destroyed thousands of years ago, Collier thought, by the formation of “great aggregations of men” into large cities, accompanied by the development of “the vast and centralized political state” in the time of Western empire-building, beginning with Alexander the Great. Shortly thereafter, Christianity provided a substitute for the lost confluence of individual with social goals, and “man communed with the far away source of power through a belief in the real presence, in the beatific vision, in the actual inspirational influence of the Godhead.”

John Collier and the Tribal Alternative

141

The subsequent development of industrialization, however, although it gave humanity unprecedented control over nature, also weakened Christianity and left human beings once more without a sense of social purpose or of transcendence of self through religious experience. “We have lost that joy which the primitive man had for so long, of complete identification with the strivings of the small group,” Collier said, “and most of us have lost for the present that other dream which was brought to man in order that his soul might live, the dream of a purpose which relies on us and yet is higher than any man or nation.” Given this analysis of the major failing of contemporary society, Collier saw a great need for some means to restore what had been lost. He asked, “Can we not hope that the average man may be enabled to take into his own consciousness . . . the same intensive relation to the modern social purpose that primitive man took into his personality . . . or that the medieval man took into himself?” As Kunitz has pointed out most clearly, this communitarian viewpoint combined with two other aspects of Collier’s thought. First, he was consistent in believing that the fundamental faults of industrialized societies could not be laid at the door of specific individuals or groups. He rejected what have been called conflict models of society, which explain history on the assumption that certain groups create and benefit by basic societal structures that oppress other groups. For example, he did not understand what had happened to Native Americans in terms of assumptions that white racism or capitalism or imperialism or other manifestations of fundamental conflict over social goods were threatening Native American survival. He also adhered to the corollary of this view: that basic social change can occur without major societal upheaval. In brief, as Kunitz has put it, Collier shared with some other nineteenth- and twentieth-century intellectuals a “conservative” rejection of both atomistic liberalism and class or other conflict theories in favor of what is more likely today to be called a communitarian outlook.9 Collier was also influenced by the writings of Frank Lester Ward, who believed that science, properly understood, could be used to reform society. Collier believed that social scientists could utilize the truths discovered by science to cure the ills of modern life, even ones as fundamental as the loss of community. In the 1917 address quoted above, before his work with Indians began, Collier said that the “purpose” of the “school community movement” was “to bring about situations among the plain people wherein they will solicit the help of the expert and co-operate with him in being shaped and in shaping the public order, and will take over into ordinary life, into neighborhood institutions and family traditions, the knowledge which is the knowledge now of the expert, the enthusiasm which is now the enthusiasm of the expert.” 10 He obviously thought of himself throughout his life as one of the social

142

A Fateful Time

scientists or experts who had devoted himself to helping the “plain people” regain the communitarian institutions and values they had lost. There is of course a paternalistic aspect to this belief, as well as a self-confidence bordering on arrogance. Yet he had reason to see himself as more able to comprehend basic aspects of complex societal systems than even most of the people with whom he shared knowledge about Native American life and governmental policy that affected Native peoples.

Collier Discovers Indians—“They Had What the World Has Lost” The discovery of the religious life of the Pueblo Indians provided for Collier both validation of his personal mystical experiences and the identification with societies that had maintained the sense of community whose loss in the wider society was of central importance to him. Not only did he find societies compatible with his strongest personal values but he also saw Native Americans as possessors of knowledge that might be used to redeem the wider society. At the very beginning of The Indians of the Americas, a book he wrote after retiring as commissioner, Collier wrote, “They had what the world has lost. They have it now. What the world has lost, the world must have again, lest it die.” 11 Although this was written after he had served twelve years as commissioner, there is no ground for doubting that it reflected his initial reaction to Pueblo life. In 1922, he had written that “the pueblo is not dying; on the contrary, it is alive, pregnant and potentially plastic; potentially an inheritor of the future and a giver to the future of gifts without price, which future white man will know how to use.” 12 Collier’s most extensive writings about religious dances at Taos Pueblo, in On the Gleaming Way and Indians of the Americas, were written long after he first observed them. But there is contemporary evidence that he had these reactions to Indian life and religion from the first time he encountered them. He found these religious experiences profoundly moving and understood them as growing out of societies that successfully merged individual with social goals—a necessary ability that modern society had lost long ago. In 1928 he published in American Indian Life, which he edited, a “diaryentry” by an unnamed white witness to a 1926 dance held at Blue Lake by members of Taos Pueblo. Whites had not previously been permitted to witness such religious ceremonies. Since we know from his post-retirement writings that he was one of a few non-Indians invited to these dances by the leaders of Taos (in an attempt to counter missionary criticism of them), it is difficult to reject the conclusion that the diary from which the quotation came was Collier’s. If so, he wrote:

John Collier and the Tribal Alternative

143

How in many Pueblo sacred dances the oblivion of self and the corresponding inrush of power becomes even terrifying, is known to all who frequent the dances. But even the Red Deer dance is brief, its intensity is faint, compared to this all-night dancing. The occasion as a whole was a summonsing by the tribe of many spirits of the wild, elements or cosmical kindred known in ages gone by; and a summonsing from within the breast of capacities and loves which had formed the ancient life and must sustain its present and future. . . . Empirically, it can only be said that a strange release of energies took place, that the dynamic potentiality of ancient beliefs was realized, and that there was expressed a rejoicing passionate and yet almost coldly exalted, and the fleshly raiment appeared to fall away.13 In an article about the Pueblos written in 1922, Collier had this to say: “The pueblo is not primitive in the sense of being primordial. Vast spaces of evolution and of the compounding of cultures lie behind it. But it is primitive in that it has conserved the earliest statesmanship, the earliest pedagogy of the human race, carrying them forward under geographical conditions which have helped to a result possibly unique, for its complex yet childlike beauty, in the whole world’s history. From this statesmanship and pedagogy our present world needs to learn, and tomorrow’s world will learn if given the chance.” 14 Collier saw in Native American societies fundamental religious and social values that resonated with his most deeply felt personal beliefs and his analysis of the basic flaws of contemporary society. But he saw far more. He believed that Native American culture and societies embodied different and more wise viewpoints toward nature and human involvement with it than did industrialized societies. He believed also that a return to these values was essential for the survival of the industrialized world. In Indians of the Americas, for example, he asserted that the Incas had practiced long ago “the maximum use of soil, water and vegetative resources, without destroying resources through over-use” so that “from generation to generation the soil and water resources became more, not less,” and in his autobiography he wrote that “the Indian by virtue of his religion has been a conservationist in all lands and through all time.” 15 He also wrote that “the Indians’ religion views the whole world as alive with a life like that of man, but vaster than man’s life, beyond the reach of abstract thinking. It views the world as a mutual-aid democracy, and it holds that man truly lives when he delivers himself, with all the brooding power and joy that is in him, into this mutual-aid democracy of the earth and all its creature lives.” Collier also said that Native American societies had a capacity for group decision-making that was far superior to the political practices of

144

A Fateful Time

industrialized democratic societies. They practiced, he thought, forms of democracy, based on strong primary groups, that were deeper than democracy as it had developed in modern nation-states.16 In brief, Collier’s deepest beliefs went beyond a positive evaluation of Indian cultures as he first perceived them among the Pueblos; he thought that these societies were different manifestations of a single culture that once had been the foundation of all human societies and that must be restored if there was to be continued human existence. If one takes seriously what Collier wrote, and even if his descriptions of his deepest personal experiences are not meaningful to people who have not themselves had similar experiences, it does not seem possible to doubt that Collier wished passionately to preserve Native American cultures. That this was the overriding goal from the beginning of his work with Indians and that his views entailed a fundamental rejection of assimilationist-based ideologies of all kinds is not open to dispute. It also cannot be doubted that he did not take up a career on behalf of Indians as a way of making a living. Throughout the 1920s and the early 1930s, he was a salaried employee whose theoretical yearly income was $5,000, a large amount at that time, which permitted him to work full-time. However, he often did not receive this amount; in fact, he gradually dissipated an inheritance of $6,000 in order to continue his work.17 Collier did not always mention these basic beliefs while working on behalf of Indians, but there is no reason to doubt his later assertion that they lay behind his actions. To what extent these deep beliefs were kept from others, however, has been debated. Kelly states flatly that “the truly revolutionary nature of his ideas and his goals was hidden from all but a few of his closest associates” during the 1920s.18 This is an important charge, particularly if it is extended to the period leading up to enactment of the ira. Kelly’s judgment is far too sweeping. The pronouncement arguably could be applied to the religious foundation of Collier’s beliefs, but even in this area he made important public statements during the 1920s and early 1930s, some of which have been noted here. Before becoming involved with Indian affairs Collier had proclaimed his belief that modern societies were fundamentally flawed, although those who heard him no doubt sometimes did not understand him. He also made it clear soon after his discovery of Native American religion and life that he believed that their societies held truths that could help heal modern Western societies, although again it is not certain how many people understood these views. Moreover, as Kelly himself notes, from the beginning of his work for Indians it was hard to miss the fact that Collier wanted to reverse the assimilationist-oriented Indian policy of his time. He often stated that goal and never endorsed forced assimilation.

John Collier and the Tribal Alternative

145

Collier has often been described as a cultural pluralist and sometimes as a cultural relativist. If this means that he valued all cultures equally or that he wanted to preserve Native American cultures as one among many valuable human patterns, it is not a correct description of his views, because he thought that Native American cultures were in very important ways superior to the contemporary general American culture of his day.19 He was not often explicit about this implication of his views before he left public office, although several of the statements quoted above come from this period of his life. But this is very different from hiding “revolutionary” views from all but a few intimates. Collier was not unique in his fundamental response to Native Americans, although he was certainly unusual. Writer Mary Austin, whose work Collier had recommended to Secretary Wilbur early in the Rhoads-Scattergood administration, shared many of his values and attitudes toward Native Americans. Her well-received early book of short stories, The Land of Little Rain, devoted much attention to Shoshone and Paiute residents of Owens Valley; it took their religious and other views seriously. Austin followed this work with Basket Woman and a play, The Arrow Maker, as well as a number of magazine articles. Like Collier, she interpreted her mystical experiences, which began early and deeply affected her life, as congruent with Native American religious ideas. Moreover, she shared with him what would be called today an ecological view. She understood not only the intricate interconnections of the natural world but how people in societies closer to these realities understood their position in nature. Austin moved to Santa Fe, New Mexico, in 1923 partly because of the Indian presence there but also because she knew Mabel Dodge Luhan. From the beginning of Collier’s work and on into the Indian New Deal, Austin collaborated with Collier, although her reform efforts were necessarily limited in comparison with his because she made her living as a writer.20

Finding Ways to Achieve His Goal Understanding Collier’s ultimate goals does not tell us all we need to know about his views on Indian policy. Because of decades of official policy designed largely to destroy Native American cultures, along with the voluntary decisions of many Indians attracted by features of the non-Indian society that surrounded them, many Indians were assimilated, at least in major ways. Since the basic viewpoint of his conception of Indian policy was that Native American societies should decide for themselves what they wished to be, Collier knew that increasing their powers of choice would in some cases lead in an assimilationist direction. The evidence that Collier understood this is surprisingly rare, probably

146

A Fateful Time

because he did not want to encourage Indians to become assimilated and because he did not want to be misunderstood as agreeing with the goals of assimilationists, but such statements do exist. Perhaps more surprising are similarly rare statements that he thought Indian policy should support some Indians who wanted to assimilate. One evidence of his basic views is an article written for Indians at Work, a periodical published by the Bureau of Indian Affairs during his administration, although it was not published. Evidently intended as an answer to something written by Flora Warren Seymour, in it Collier asserted that Indians should be allowed to decide their own futures. It is clear that he realized this meant some would choose to reject the traditional religious values that he valued so highly.21 The article began by arguing that “for about eighty years, controversialists have impaled the Red Indian on the horns of a fictitious dilemma,” based upon “the uncritical blending of the false hypothesis of total segregation and the false hypothesis of instant and peremptory amalgamation.” He asserted that “if the present administration has any distinguishing philosophy, it is the philosophy of getting the Indian and the Indian question off from the horns of the fictitious dilemma . . . and of developing an Indian policy that fits the varied facts and makes possible the realization of the varied trends of Indian life.” Collier asserted that for all Indian groups “the tribal organization sections” of the Indian Reorganization Act were critical. He wrote that the “fundamental conception” of the ira was that “organization—the psychological need to organize, the practical efficacy of being organized—is universal and permanent, that no true liberty can be achieved without organization.” However, he also asserted that the ira did not establish a common pattern of organization; “the things that groups or tribes may do can extend, and do extend, all the way from the reincarnation, into their successful archaic mould, of some of the ancient Pueblo tribes, to the organization into the purely modern political and business form of such tribes as the Eastern Cherokee, the Menominees, and the Fort Belknap of Montana.” However, it was up to each society to decide how it wished to organize; “these are not matters determined by the Act. Nor does the Indian Office determine them.” In an article written in the same year—1935 —but published in Indians at Work, Collier continued this theme by discussing two fictitious examples. In one case, he assumed “an Indian population which already has gone far toward ‘assimilation.’ Blood is mixed and cultures are mixed. We will assume, even, that because of geographical structuring, scattering, or lack of feasible economic interests in common, no organization is practicable. Shall we therefore seek to help those individuals exactly and solely as if they were white people?” 22

John Collier and the Tribal Alternative

147

Collier’s answer to this question was no, for a variety of reasons. First, because of the great contributions of Native American societies to the general society and because of the many wrongs committed against them in the past, “there rests on the Federal government an ancient, unfulfilled but acknowledged obligation toward the Indian race, different from and more inclusive than its obligations toward any other element in our citizenry.” More important, however, was the fact that a policy affirming the validity of Indian traditions was beneficial even for those Indians who had abandoned their traditions. He asserted that “even the scattered, socially detached mixedblood Indians have much to gain through being put into contact with Indian tradition. They will be more self-confident, they will value themselves more highly and strive higher, they will be more interesting to their White neighbors, they will travel farther in the great world, if they are helped to rediscover their Indian heritage.” This sounds very much like a current view that one impediment to the advancement of minority groups in American society is that too many members of these groups have accepted the judgment of the dominant society, expressed in many ways over long periods of time, that they are inferior to white or white Anglo-Saxon Protestant Americans. Because this is so, one way for such groups to progress is to emphasize the achievements of members of their group, which entails highlighting as positive the ways in which these groups have differed culturally from white Americans. Collier’s second example was “the tribal Indian whose society is even now chiefly archaic, whose language is pre-Columbian, whose view of the world is the ancient native view.” For such an Indian, he wrote, “to help him preserve the vital things of his old life, including the usable part of his institutions is plainly a duty of Indian service.” The next stage of the consideration of this issue, however, which is crucial, is that Collier asked: “But is not ‘assimilation’ also a duty: and, indeed, is it not a necessity if the precious Indian heritage is to survive?” He argued that it was, in the sense that the desperate economic situation of most Indians and their dwindling resources required a dual strategy. He wrote that “hardly is there a tribal Indian who is not one of a group supplied with too little land.” Moreover, he noted, “the land is being further diminished through soil wastage due to overgrazing and to neglect of conservation measures. The diminishment is proceeding with the speed of a catastrophe on many of the tribal reservations.” The necessary implication was that some Indians would have to move into the general society—and be adequately prepared for such a move—in order that others could survive on the depleted reservations. This conclusion was not made explicit in the 1935 article, but in 1934 Collier had stated it clearly. In discussing the situation of the Navajos before a con-

148

A Fateful Time

gressional committee considering the bill that became the ira, Collier said that the Navajo Reservation was a prime example of a reservation being damaged by overgrazing. He explained that there were only three ways of dealing with this problem. “One is migration of some of them, one is the more intense and diversified use of such land as exists, and the third is the acquisition of more land. That is a problem that exists in the nature of things.” 23 Moreover, Collier went on to say that “there can be no possibility of continuing to add land to the Navajo Reservation to keep pace with the growth of the Navajo population in the years to come. . . . If they are going to go on under their present economy, then a large number of their young people have to move out, migrate.” In response to this statement, a legislator asked him: “Then does [the bill] . . . fit them for that migration, to go into the world?” Collier answered: “Precisely. It is intended to do that.” He went on to emphasize another way of dealing with this problem, arguing that the Navajos “must conserve their existing land and make better use of it,” as though he was uncomfortable talking about government policy to facilitate assimilation. This is an important example, because Collier’s prediction about the inability to continue to add land in significant quantities to this reservation proved true and because the efforts of the Collier administration to deal with the Navajo overgrazing problem by instituting strict limits on the size of Navajo flocks and herds were an important cause of conflict between Navajos and his administration.24 His remarks in 1934 indicate that Collier believed that an inevitable partial solution to the lack of land resources on that reservation was that many of the Navajo young people would have to leave the reservation. If this was so, it was the responsibility of the Bureau to prepare them to live successfully in a non-Indian world. While such help was a key element in the policy of forced assimilation, the purpose of this step in Collier’s view was ultimately to achieve the opposite—to make it possible for the more culturally traditional Navajos to survive and preserve their culture. Collier sometimes went to great lengths to avoid explicit endorsement of assimilation if the context was one that might lead others to think he was advocating forced assimilation. An exchange with several representatives, when the House Committee on Indian Affairs was considering the bill that became the ira, illustrates this point very well. Several representatives tried repeatedly to pin him down on his attitude toward assimilation. Collier clearly felt uncomfortable with this line of questioning and just as clearly passed up several opportunities to agree with members of the committee that his policy was assimilationist, from their point of view. The exchange began when Representative Theodore R. Werner of North Dakota said to Collier: “As I understand this, you are attempting to do two

John Collier and the Tribal Alternative

149

things. Through your educational policy you are attempting to assimilate the Indians into the races that now predominate in this country, having Indians assume the full burden and responsibility of citizenship. . . . On the other hand, with your land policy, it seems to me that you are trying to segregate the Indian and isolate him and make it impossible for him ever to become an assimilated part of the citizenship of our country.” 25 Collier responded to this by defending the land policy, replying to the last part of Werner’s statement, which was clearly intended as an attack on this aspect of the bill. Collier replied: “It would not work out that way” and maintained that the Mormon rural communities in the West were not isolated or alienated from “citizenship” but had “a lot of advantages through cooperative living. I do not say that colony-life segregates them socially or economically.” He then argued that the guardianship contemplated in the bill would be different from the existing guardianship, saying that it “will not be what it is now, something that takes away from him his initiative, his self-respect, his power, his liberty and self-support, but this will be something in which he will be urged to accept liberty and acquire the habit of self-support.” Representative Isabella Greenway of Arizona was not satisfied with this reply and tried to get Collier to commit himself to the ultimate goal of assimilation. She asked: “When [the Indian] has been educated and has the experience of liberty and self-government as outlined in this, is the thought going to be that we are encouraging him to step over and become a citizen and assume the responsibility as well as the luxury of education?” In other words, she said, will the “guardianship ultimately . . . be eliminated?” Collier responded carefully to what he apparently saw as a very difficult question. He prefaced his remarks by saying, “I will answer that very carefully because I am speaking for the record and it might be misunderstood from the record. I suspect what I am going to say will be misunderstood no matter how careful I am.” Then he continued: “I would first say this: It is fundamental that if the ultimate policy was going to be that of liquidating the guardianship, if we were going to have that policy, then that would be the way to move in that direction. This would be the way to abandon Federal guardianship without destroying the Indians.” Greenway obviously saw that this answer begged the question, since it made the ending of guardianship only hypothetical, and she told Collier: “You have almost answered the question.” To this, Collier replied, “The guardianship in this is simply not guardianship at all,” again not really answering the question. Greenway again tried to pin him down: “But is there the established policy among those who are working with and for the Indians all the time to build into an absorption into citizenship in the United States the future gener-

150

A Fateful Time

ations of Indians?” Collier declined to answer for himself, saying only: “I would answer that by saying it is entirely a matter of personal equation what different people think about that. I will go on from what I said, that this would be the means if the policy were to terminate the guardianship—this would be the conservative and humane way of doing it.” At this point Representative Theodore Christiansen of Minnesota suggested that the bill continued guardianship over the property of Indians but ended guardianship over their persons, but then returned to the question Greenway had first asked. Pointing out that guardianships in other areas end when “the incompetent becomes competent to manage his own affairs,” he said: “I presume that the policy of the Government in this instance is to assist the Indian until he develops full competency and then terminate the guardianship.” Collier at first replied, “I think that is a very helpful statement,” but when Representative Werner continued to press him to say that the bill was going to give Indians “full freedom,” Collier finally made a long statement, which admits that some Indians were going to become assimilated but also states that his goal was to preserve the right of those who were not moving in this direction to remain as they were. It is my personal view that the guardianship of the Government is going to last a long time. It is a thing very profoundly rooted in our political and legal history. It goes a long way back. The Indian has been treated through the centuries as a dependent nation, and as being entitled because of supposedly peculiar conditions to special aid from the Government. I would expect that as the times go on into the years and the generations, there would be groups of Indians who would probably continue to be very peculiar and different and would probably continue to be of peculiar interest and concern to the Government. I would expect that to be the case with some of the Pueblos, for example. Perhaps there are others. Unquestionably with other groups the tendency would be to rise to the full stature of ability and personal responsibility. . . . The future is not uniform. He then discussed the ejidos of Mexico, saying that in this system “the selfgoverning community . . . has fitted the Indian into the life of the country.” Collier returned to his point about the uncertainty of the future, saying that “the far future is what none of us may predict, as it is like the question of the Navajos or the Pimas surviving—we do not know.” Representative Greenway correctly interpreted this reply as again falling short of endorsing assimilation as his personal goal, and she pressed him one more time by asking him if he was “taking no positive stand” about “bona fide citizenship.” Collier replied that the bill took such a stand except for continu-

John Collier and the Tribal Alternative

151

ing the exemption of Indian property from state and local taxation. With that, the exchange finally ended. In this series of questions and answers, Collier repeatedly refused to personally endorse the goal of assimilating Indians to general American life or to say that the bill he was backing was designed to bring about assimilation, even though in his view it would make it easier for some Indians to take this step. He knew that some Indians were assimilated and others would move in this way; but the preservation of the possibility for others to remain as they were was his chief concern. Indeed, it is not unfair to say that preserving this option was a central purpose of his life. He was obviously reluctant to state this basic goal before a committee whose members took it for granted that assimilation was the proper and necessary goal of national Indian policy because he did not want to be seen as agreeing that this should be the sole or most important goal of his policy. No member of the House committee publicly expressed the view at this time that Indian cultures and societies were worth saving, with the possible exception of Representative Edgar Howard, whose role in enacting the ira is discussed below (see chap. 8). Given this fact, it is remarkable that Collier, even though he was repeatedly pushed to do so during this exchange, would not state that the main objective of the ira or his personal objective was to bring about the assimilation of American Indians. If the view that his ideas were based on a regard for Native American cultures and societies as superior to general American culture and society is correct, then Collier’s stance is understandable. He did not want to state completely his most fundamental views because he thought they would seem so radical that passage of the bill might be endangered, but at the same time he could not embrace viewpoints he did not share (except in the limited sense noted above).

The Development of Collier’s Ideas on How to Achieve His Goal These conclusions are strengthened if one assumes that Collier saw several basic elements of the bill he was proposing to Congress as providing the means to preserve traditional Native American societies. He thought that if he could secure passage of this bill he would be strengthened in acting administratively by having more effective tools to carry out his fundamental policy. However, the view taken here is that Collier’s notions of the means to save Indian societies developed slowly and that he did not come up with the main outlines of the approaches that he thought would be effective until after he

152

A Fateful Time

had been working on Indian matters for some years. Particularly, he developed the main outlines of his specific policy goals only after publication of the Meriam Report. Surprisingly, he was even looking for new ways to move toward his goal when the bill that became the ira was being drafted. Indian law and policy are very complex, partly because there are so many Native American societies, each with a unique history, in some respects. It would have been impossible for any one person to know intimately the situation of all such groups, and Collier never made any such claim. He told a House committee in 1926 that he had “intimate” knowledge of the Pueblos and “a tolerably intimate experience with the Navajos” but did not claim personal knowledge of other groups. In his subsequent work for Indians during the 1920s and early 1930s he had contacts with several other groups, notably the Indians of the Flathead and Klamath Reservations and some California Indians, and after the establishment of the Senate investigating committee he followed its work and sometimes helped plan hearings that were held in various parts of the country. (Kelly says that after Collier got it established he “proceeded to direct the subcommittee’s work.”) 26 While he did not know all Indian groups personally or in depth by the time he became commissioner, he was better informed about Indian life than previous commissioners had been. One element in understanding his attitude toward means of reaching his goal is that Collier reported several times before his appointment and later that he believed that a great many—sometimes most— of the Indian societies in the United States no longer had viable, functioning governments of their own. In fact, he largely subscribed to the vacuum theory about the nature of Indian governance, with the exception of the New Mexico Pueblos, with whom he had enjoyed extensive contact. During the 1926 hearings on the administration bill to greatly extend the jurisdiction of federal courts, Collier told a congressional committee that he recognized the problem that had led to the drafting of the bill. “The problem is this. There are large numbers of reservations where the tribal authority has lapsed and tribal custom has become confused and partially disappeared, gone, in fact, and the moral control of the tribe is largely a thing of the past. On those reservations . . . the tribal authority has disintegrated.” He ventured an opinion in this statement about the number of Indians in this position, saying that “there are 50,000 Indians in the United States living under no law where misdemeanor is concerned except the arbitrary will of the Indian superintendent.” 27 At other times he made similar statements, although his estimates of the number of Indians living in societies where tribal authority had disappeared

John Collier and the Tribal Alternative

153

varied widely—which should be not be surprising, given the absence of authoritative national information on this point. He told the House Indian Affairs Committee in 1934 that “in a great many Indian reservations—more than half of them—the tribal relations have been dissolved, and elsewhere the tribal customs are so vague that nobody knows what they are.” Also in 1934, he told the Senate Committee on Indian Affairs that “at present the Indians who are wards of the Government who live on reservations are under the almost unconditioned discretionary authority of the Secretary of the Interior. . . . That is why the Indians are so unorganized today. They once were well organized.” In 1945 he wrote that by 1928, “in most of the tribes all forms of human organization had been killed by the positive or negative official policies of seventy years,” and in 1943 he asserted that only the tribes that had not been allotted had kept their lands “and in most cases kept their industry and more or less of their inherited cultures and organization. These tribes, largely situated in the southwestern States, comprised about one-third of the whole Indian population in number.” 28 This aspect of Collier’s thought is of substantial importance, because it sometimes led him to endorse policies that worked against Indian selfgovernment to some degree. From 1926 to the introduction of the bill that would become the ira he backed measures to extend non-Indian law over reservations, and the draft ira followed this pattern. These efforts, if they had been successful, inevitably would have weakened existing Indian governments and introduced more non-Indian elements into their governing practices. If he believed that, in most cases, the authority of Indian governments had been largely lost, his overall approach should have led him to efforts to restore the legal authority of Native American governments. This is the approach he followed in other areas, but for some reason he did not fully extend the tribal alternative to the area of law.

The 1926 “Law and Order” Bill A closer look at Collier’s views during the 1926 congressional hearings on the Burke administration’s “law and order” bill shows how his views were shaped by his presumption that most Indian governments had disappeared. The Burke bill would have abolished Indian custom marriages and divorces, legalized the Courts of Indian Offenses, and extended national criminal laws over all reservations. While Collier vigorously opposed these moves, a legislator who was working with him introduced a bill, with Collier’s support, that would also have extended non-Indian laws over reservations, although to a

154

A Fateful Time

lesser extent; it would also have created a new federal judicial office with authority over Indians. Collier most likely took this approach in part because he accepted the theory that a legal vacuum existed on most reservations. Collier joined Jennings C. Wise, a non-Indian lawyer concerned with Indian affairs, in testifying before the House Indian Affairs Committee in 1926 that the Courts of Indian Offenses were unconstitutional. Collier said that a Court of Indian Offenses was “a government wherein the whim of the superintendent is the law” and pointed out that these institutions imprisoned people without due process of law; he also noted that there was no appeal to federal courts from their decisions. The Burke bill, he thought, could not remedy the situation because of constitutional limits on the establishment of federal courts. Collier’s basic constitutional argument, stated in a written report on the Bureau bill, was that “the courts here created are not extensions of and are not subordinate to the Federal district court; and the procedure provided for is to be devised by an administrative agency. It is doubtful whether Congress has power to create or whether the Indian can be required to submit himself to such a type of court.” 29 Nevertheless, at this time Collier accepted the notion behind the Burke bill: that assimilation was occurring everywhere among Indians and that this meant the dissolution of their aboriginal social structures. “Statistically, the drift of the Indian tribes away from tribal relation into citizenship is very rapid, if anything, too rapid,” he said. “It has taken place as the result of economic and educational causes, and all sorts of causes. All of the evidence shows that left to themselves they are in process of passing into our citizenship rapidly, and this includes the Pueblos.” 30 As noted above, he commented on the “large numbers of reservations where the tribal authority has lapsed.” If this were the case, some substitute was needed, and he proposed one. Collier stated in his autobiography that Republican representative James A. Frear of Wisconsin was “our first good friend in Congress.” Frear was a Midwestern Progressive who had bolted the Republican Party to work on behalf of the LaFollette presidential campaign in 1924. In 1926 he introduced a bill, h.r. 9315, which was obviously intended to provide an alternative to the Burke bill. Collier backed it strongly before the committee, and Frear said that it embodied Collier’s views.31 The Frear bill specifically abolished the Courts of Indian Offenses, removed all criminal jurisdiction from national administrative agencies, and stated that “where Indian tribal authority exists and Indian custom continues operative, said tribal authority and custom shall prevail in all civil and criminal matters other than felonies” (section 7). On the other hand, for all other reservations h.r. 9315 would have extended the jurisdiction of federal district courts to all felonies committed by Indians on reservations and all civil suits involving more than five hundred dollars

John Collier and the Tribal Alternative

155

(section 3). However, it stated that “for felonies not enumerated in Federal statutes, and for all misdemeanors and in all civil matters, the laws of the State within whose boundaries the Indian reservation is located shall be applied,” with the federal district courts to have appellate jurisdiction over cases arising in state courts under this provision (section 4). With all felonies, misdemeanors, and civil laws to be enforced in state or federal courts, only a limited amount of concurrent jurisdiction would have remained for tribal courts under these provisions. Moreover, the Frear bill upheld “tribal authority and custom” only in those cases in which “Indian tribal authority exists and Indian custom continues operative.” The federal district courts would have been given authority by h.r. 9315 to determine whether such Indian authority and custom still existed, and the bill would have created a new federal officer to handle the expanded load of Indian cases. The Frear bill provided for the appointment of “Indian law enforcement magistrates” by federal district court judges. These officers would have had the authority to conduct misdemeanor and civil trials and have had the responsibility for “commitment for felony and fixing of bail for Indians.” In felony cases, while Indians “through their tribal council” were to be allowed to nominate candidates for the new magistrate positions, the appointments would have been made by district judges. When Representative Scott Leavitt, the committee chair, asked Collier if he would favor electing the magistrates by “the local people,” Collier replied that federal judges should have this authority because “many of the tribes are frankly not in a position to choose their magistrates: they are split into factions. The control exerted by the Indian Bureau has in many cases paralyzed any democratic capacity they had.” A member of the committee asked him if this would not take away “democratic rights” from the Indians. While Collier did not give a direct reply to this, he had earlier stated his approval of the fact that federal judges were appointed, not elected.32 Collier’s 1926 stance on Indian “law and order” logically conflicted with his later emphasis on Indian self-government, but essentially it was repeated in the draft proposal that was sent to Congress in early 1934. The simplest explanation of this inconsistency is that Collier favored increasing non-Indian jurisdiction because of his belief that the authority of Indian governments and the cohesion of Indian societies either had largely disappeared or would soon vanish. But if this is the proper explanation, why did he not advocate measures to revive these governments by authorizing Native American societies to constitute or reconstitute their own courts? Again, the simplest explanation is that, while Collier wished very strongly to preserve cultures where social vacuums did not exist, he had not yet developed the notion that statutory support for

156

A Fateful Time

Indian self-government could revive governments within the many societies where they had died out.

Full Development of the Tribal Alternative, 1931–1932 A major thesis of this study is that not until 1931–1932 did Collier develop an array of policies to achieve his objective of saving largely intact Native American cultures. Kelly has quoted several statements of Collier’s views on Indian policy during the early 1920s that he characterizes as vague. For the most part, these do not deal with the fundamental questions discussed above.33 My view of these statements is that they reflected strategic, tactical views held before Collier developed a real program that he believed could save Native American life and—ultimately—American life. If these assumptions are correct, what explains his slow development of the ideology identified here as the tribal alternative? While no definitive answer can be given to this question, the rest of this chapter explores the evolution of Collier’s program for carrying out his strong commitment to reversing assimilation. One element is Collier’s deepening understanding of the intricate Native American world and the corresponding complexity of the extraordinary web of government policy dealing with Indians. From the beginning of his involvement with Indian policy until the Rhoads-Scattergood administration he had served mainly as a critic and gadfly while working closely only with the Pueblos and the Navajos. During this period he spent most of his time attacking policy and the individuals carrying it out in specific cases where his help had been sought. Kelly has characterized Collier’s efforts during the 1920s as “fire-fighting activities.” 34 One consequence was surely that he responded to matters brought to him more often than he attempted to change broad policies; only slowly did he develop wider insight. Collier always read widely and attempted to seek deep understanding. Beyond assisting those groups that sought his help, he spent much time and effort trying to stimulate wider studies of Indian policy. He was largely responsible for initiating the Senate studies of the “condition” of Indians (and tried unsuccessfully to secure the establishment of a similar House committee), and his muckraking activities were largely responsible for creating the climate leading to the Meriam Report. Obviously he learned from the results of these investigations. Before the early 1930s he had opposed the Bursum Bill and worked for legislation more favorable to the Pueblos, helped the Flathead Indians oppose the building of a dam on their reservation, and engaged in several attacks on Bu-

John Collier and the Tribal Alternative

157

reau personnel—notably a campaign charging Commissioner Burke with mishandling the funds of Jackson Barnett, an Oklahoma Indian, and a campaign against Herbert Hagerman, who had played key roles in organizing both the Navajo Tribal Council and the United States Pueblo Council. His efforts to secure significant legislative reform had been in response to initiatives taken by others, such as the proposals Representative Frear made in 1926 to the Bureau “law and order” bill and his support for the Klamath incorporation bills. Another early general policy stand was to support the Swing-Johnson bill, named after its congressional sponsors. Under this proposal, Bureau health and educational functions would be transferred to the state of California and the financing of these services would remain the responsibility of the national government. This measure, which Collier continued to support as commissioner and which became law in a broader form in 1934, was largely a response to the unique situation of California Indians. In the 1850s the U.S. Senate had not only refused to ratify eighteen treaties drawn up with various Native American societies in California but also had relegated these treaties to a secret archive, where they remained until the early twentieth century. As a result, few reservations were established for California Indians, and they had one of the smallest land bases of Native peoples west of the Mississippi; almost all California Indians were essentially landless.35 At the end of the nineteenth and the beginning of the twentieth centuries a privately led drive to purchase lands for many of the surviving California Indians led to the creation of a number of small reservations— called rancherias— around the state. The rancherias were basically just dwelling sites; they were almost always too small to provide an adequate economic base for their Indian inhabitants.36 Because the Indians could do little economically with their tiny reservations (in an era when legalized gambling was not a possibility) and because the bia could not properly serve the scattered, small groups of California Indians outside the few large reservations, it made sense to decentralize the provision of these services to local and state governments, if national funds could be provided to pay for them. One of the strongest units of Collier’s American Indian Defense Association was located in San Francisco, as were some of his wealthy supporters, and Collier maintained a home in Marin County, just north of San Francisco, so it is not surprising that one of his initiatives grew out of the special circumstances existing in that state.37 The Swing-Johnson bill also represented a way to accomplish one of Collier’s evident goals during the 1920s: to find a way to curb the often arbitrary power of Bureau officials over Indians without resorting to termination. Collier often talked about the dilemma of dealing with arbitrary authority without ending the guardianship responsibilities of the national government. Many of the pro-

158

A Fateful Time

posals on an October 1928 list of eleven needed changes advocated by his organization were attempts to deal with this dilemma. He favored “the abolition of all arbitrary powers of the Indian Bureau over Indian property and person”; “the extension to the Indians of the safeguards to life, liberty and property accorded under the Constitution to all citizens of the United States”; continuation of guardianship; setting up “machinery” to enforce the obligations of the guardian by establishing “the right to be consulted as to the disposition of their property with the right to veto any use of which they disapprove”; the right to an “accounting” of Bureau actions; “a right under general statutes to apply to the Courts to restrain or require reimbursement for violation of their rights”; “the right to be represented in all proceedings by counsel of their own selection (subject, if it be deemed necessary, to the courts’ approval of such counsel)”; and “the abolition of the criminal jurisdiction of the Bureau, the enactment of a statuary [sic] code of minor offenses, and the erection of tribunals with a reviewable procedure involving all the requirements of due process of law.” 38 The rest of this list indicates that he had not yet developed fully what later became the major components of his reform program. For example, there was no call for abolition of the allotment policy, only suggestions that the law be amended “to bring to an end the forced sale of Indian heirship lands, to regulate the sale and lease of allotted lands, to bring the question of the competency of allotted Indians within the purview of the courts, and to insure to Indians the right to make valid will and testaments.” The statement also called for “humane and enlightened methods in the treatment of health and educational problems,” with nine specific suggestions under this heading; enlargement of “agricultural and other suitable instruction to the adults to enable them, or to assist them, to become self supporting”; the repeal of reimbursable debt charges and the provision of “capital or credit necessary to enable the Indians to render their lands productive”; and “cooperation with the State authorities or relegation of administration to the States” in a few areas. Notably lacking in this list are suggestions for recognizing and/or creating Indian governments. With the coming of the new leadership made possible by Herbert Hoover’s election to the presidency, Collier for the first time saw the opportunity for basic policy change, although he was too optimistic in assuming that Wilbur, Rhoads, and Scattergood genuinely supported such change. In response, Collier, with assistance from Matthew Sniffen and Lewis Meriam, developed the 1929 letters, with their proposals for policy overhaul (see chap. 4). These proposals, however, did not add up to a thorough critique of existing national policy and did not constitute a blueprint for the Indian Reorganization Act. In retrospect, the most significant element in these letters was the statement that perhaps the allotment policy itself should be rethought. By this time Col-

John Collier and the Tribal Alternative

159

lier probably had begun to believe that repeal of allotment and repair of the damages it had inflicted was necessary to major reform but was aware that the administration would not go this far. The Meriam Report had informed him about the destruction of the Indian land base brought about by allotment; perhaps he had not understood this aspect of the forced assimilation policy earlier because he had worked chiefly with Southwestern societies that were not subjected to allotment. Collier may have thought that the call to study the allotment policy would lead to its repeal; the conclusion is inescapable that the reference in these letters to allotment was one of the reasons why he later remembered them as prefiguring the Indian New Deal. By 1932 Collier was referring to Canadian and Mexican patterns of dealing with Native Americans when discussing U.S. policy in this area. In a long address, delivered in 1933 by Utah Democratic Senator William H. King and probably written by Collier in 1932, it was argued that following the Canadian experience would solve the Indian problem.39 Under Canadian law Native peoples did not have the rights that had been developed by American courts, but neither did Canada follow the allotment policy. The result was that while Canadian Indians had lost most of their lands, the reserves to which they were finally assigned were not being destroyed in the 1920s and early 1930s. Collier likewise pointed to Mexico’s experience with the ejido system as one worthy of emulation. In 1930 –1931 he had visited Mexico to study this institution and afterward praised it. The speech by Senator King in 1933 referred favorably to the ejido plan.40 This suggests also that he saw that Native American societies had to retain their land bases if they were to be able to resist total assimilation successfully. The only major initiative proposed in the 1929 letters was connected with land policy. This was the support for incorporation as a method of dealing with “indivisible” Indian properties—those that could not be allotted. While the version of this proposal advocated by the Klamath group headed by the Crawfords fits within the ideals of the tribal alternative, the 1929 letters specifically rejected the idea that Indian governments should be strengthened as a general policy. This apparent inconsistency—favoring Indian incorporation but not Indian governments in general—may be explained if Collier assumed that protecting and controlling the resources left to them was the primary problem facing Indians at that time. This assumption, combined with the belief that governments capable of enforcing criminal and civil law were scarce in Indian country, may have led Collier to conclude that the solution was the creation of new structures. Looking to corporations as a means of strengthening Native American societies obviously was advocated in part because the suggestion to move in this

160

A Fateful Time

direction had already come from Native American societies—the Klamath and Menominee tribes—and had been accorded serious attention by Congress and the administration. The advantage of the corporate device was that it provided a means by which Indian societies could handle property that could not be allotted and therefore could remain in tribal hands. But it also needs to be kept in mind that the kind of corporation envisaged by Collier was not the type most common in the United States, in which the control of the corporation is vested in the owners of stock, based on rules that give votes to owners in proportion to the amount of property they own. The type of corporation proposed by the Klamaths and advocated by Collier was the cooperative—a corporation in which voting rights are determined by democratic principles (one person– one vote) instead of stock ownership (one share– one vote). As a young man studying in France, Collier had been “introduced to the labor, cooperative, and syndicalist movements” then developing there by a Harvard professor, James Ford. In his work with the New York Training School for Community Workers, Collier included materials about cooperatives, and in his earliest work on behalf of Indians several times advocated cooperative methods of dealing with economic issues.41 The kind of corporation favored by Collier from the late 1920s on was a democratic one. He therefore no doubt saw incorporation as another form of self-government, applied to the economic field. Following his disillusionment with the failure of the Rhoads-Scattergood administration to follow through on what he thought they had supported by approving the 1929 letters, Collier for the first time began to develop a broad legislative reform package, apparently in the hope that it could be approved without administration support, or perhaps with the longer-range hope that conditions would someday change so that its passage would become possible. This new approach began in early 1930. From this time on, Collier began to talk about “indirect administration.” The implication of this view is that American Indians and the government of the United States are united in a colonial relationship, because the United States exercises ultimate control. But Collier began to argue at this time that U.S. policy should be based on one that he believed was followed by enlightened nations that practiced colonialism; he began to argue that the national government should rule Indians through governments chosen by the Indians themselves. Collier discussed indirect administration in a review of Africa View, a book by Julian Huxley about British administration of East Africa. The review appeared in the July 1931 edition of American Indian Life. Huxley quotes the official definition published by the Tanganyikan Government:

John Collier and the Tribal Alternative

161

“Indirect rule is the principle of ruling through the native chiefs, who are regarded as an integral part of the machinery of government, with well-defined powers and functions recognized by government and by law, and not dependent on the caprice of an executive officer . . . “It must be clearly understood that the policy of the Government is to maintain and support native rule (within the limits laid down) and not to impose a form of British rule with the support of native chiefs, which is a very different thing.” (italics in original) 42 No doubt several aspects of this system, as described by Huxley, appealed to Collier. Huxley had written that an important principle of indirect rule was the preservation of Native courts, so that “the law which regulates the dealings of a native people with each other is no more imposed upon them from without than is the chief who rules them; it is their own law, an indigenous product.” Later he suggested that indirect rule in Africa was the alternative to allowing economic forces to control the future, “which would assimilate the African peoples to Western civilization as an economic appendage, a new kind of proletariat, black-skinned and concerned with raw materials instead of white-skinned and concerned with manufacture.” 43 Several times in 1934, in replies to criticism of the ira bill before Congress, Collier talked about the undesirability of Indians being assimilated to general American society merely at the level of low-paid, low-skilled laborers. For example, in a letter to the Christian Science Monitor commenting on an article in that paper by Joseph C. Harsch, Collier denied that “the breaking-up of Indian tribal life and organization has speeded up the process of assimilation and amalgamation,” saying that it had lost them a great deal of land but had not produced “spiritual and economic assimilation.” In explaining this, he took Oklahoma as an example. There, he said, the loss of land and the destruction of Indian governments had not produced “self-supporting and self-respecting merchants, mechanics, bankers, lawyers, teachers, etc.; only a small percentage of the mixed-bloods attained this goal.” Most of the landless Indians in that state, he said, had “drifted into the hills,” where they “became segregated in the rural slums.” He said that the Bureau’s intention was to improve the “economic status of the Indian” so that “assimilation will take place with a correspondingly higher stratum of the surrounding white population.” Similarly, in a letter to the New York Times commenting on a letter from Elaine Eastman that had appeared in that publication, Collier asserted that the decades-old forced assimilation policy (which he compared to the “Hitler doctrine of Aryan superiority and intolerance”) had devastated the Indians, so that “the accelerated assimilation process . . . took place between a pauperized, weakened Indian race and the lowest level of the white population.” He said

162

A Fateful Time

that the new policy was designed “to obtain legislative confirmation of a policy which recognizes the Indian as an equal.” Again, in a letter to the Springfield Republican he wrote that the Indian “still is segregated spiritually and mentally by underprivilege and lack of educational opportunities, and poverty.” 44 In his 1931 review article, Collier went on to say that indirect rule had begun a generation earlier in British-ruled Nigeria and had worked successfully in Dutch-ruled Java. He linked this to Indian policy in the United States by asserting that the same concept had been used for several centuries by the Spanish and Mexican governments and earlier by the U.S. government to rule the Pueblos. He found other examples of indirect rule in both the history and present practice of U.S. Indian policy. He equated indirect rule with the forms of government over the Five Civilized Tribes before their removal from the eastern United States and in Oklahoma before the destruction of these governments in the first decade of the twentieth century. Collier also found contemporary examples of this kind of rule in Navajo country; he wrote that the development of chapters at the Fort Defiance and Crown Point Navajo agencies and the organization of the Fort Wingate school for Navajos were examples of indirect rule. Finally, he equated the Klamath incorporation bill with indirect rule.45 The notion of indirect rule offered a way short of termination to curb the authority of the Bureau of Indian Affairs. Collier had often complained of the “absolute” authority of the Bureau, as noted above. During the hearings on the ira, he said this condition had resulted from the legal doctrine that Congress had plenary—full—power over Indians. He told the House committee that “Congress through a long series of acts has delegated most of its plenary authority to the Interior Department or the Bureau of Indian Affairs . . . [and] under this absolute authority . . . the Indian has no rights except those which are extended as privileges through rules and regulations and through mere sufferance. . . . It is fundamentally un-American and fundamentally an impossible situation.” 46 Collier clearly rejected termination as a way to curb the power of the Bureau because it would have completely destroyed the Indian land/resource base and, consequently, the Indian cultures. In 1931 he saw indirect rule as a means to restrain the bureaucracy. “Indirect administration,” he now wrote, “means a spirit, an administrative technique, and a supporting body of law,” which will be different from existing “Indian law [which] is of ruthlessly direct character” and results in a situation in which “where statutes and appropriation acts do not exercise czarism over the Indians, the executive is czar.” 47 He then described how indirect administration might be adapted to Indian policy in the United States. In doing so, he restated the argument that Indian

John Collier and the Tribal Alternative

163

policy should both preserve Native American cultures and make the assimilation policy more effective. To avert misunderstanding. “Indirect administration” presumes the existence (the survival or revival) of groups. Indian groupings vary from one extreme where, for example, the Pueblos are found— complex, institutionalized, with material assets and a wealth of heritage still functioning in the conscious group life; to another extreme where scattered Indians need individual adjustment into the general or white life. . . . Again, there may remain in an Indian group but a remnant of the specific tribal heritage, yet the situation may be a perfect one for “indirect administration,” as through the tribal corporation method proposed by the Klamaths and the Menominees. Still again, in a group possessing wealths of heritage, and heartily living out its past, groupings of a de novo kind may be necessary in order that administration may achieve its purposes. Such is the Navajo case, where the “chapters”—small geographical groupings—are brilliantly succeeding in two of the six jurisdictions. In 1932 Collier for the first time presented a specific legislative proposal to recognize and authorize tribal councils, along with several other bills to reform Indian policy. The American Indian Defense Association had paid for the services of attorneys to advocate the Pueblo position in the lands controversy that began Collier’s career in Indian policy and to help the Pueblos realize the benefits of the legislation achieved. Collier stated later that roughly half of the $150,000 raised by the aida between 1923 and 1933 had gone to these efforts. Initially Francis C. Wilson and Adolph A. Berle Jr. had been hired for this work. The association continued to support for many years attorney (“Judge”) Richard H. Hanna to work with (and sometimes against) the Pueblo Lands Board set up by the legislation that emerged from the congressional struggle over the Bursum Bill, and New York attorney Louis Marshall, the father of Robert Marshall, later one of Collier’s key lieutenants, did similar work. Nathan Margold also at times provided legal assistance to the Pueblos through Collier’s organization, on a pro bono basis. But the aida, which was often unable to pay Collier’s salary on time and could not afford another paid official in the Washington office, was not able to hire a staff attorney, at least for more than short periods. Kelly reports that in May 1923 the aida employed Helen H. Greeley as “counsel in Washington.” But this could not have lasted long. Collier received advice from a number of other attorneys— Charles DeYoung Elkus (in San Francisco), Howard S. Gans, Margold, Marshall, and Huston Thompson are mentioned in his autobiography—but there were limits to the

164

A Fateful Time

help that could be asked of these successful and busy attorneys.48 For many years, Collier’s organization did not have the legal assistance to draft bills to further its legislative goals. One thing that speeded up the elaboration of a complex legislative program was involvement of the American Civil Liberties Union in Indian policy. Following an initial exchange of letters (see chap. 3), Collier and Roger Baldwin carried on a correspondence on the general issues of Indian policy. Meanwhile, Baldwin was also corresponding with Joseph Latimer, the advocate of a modified termination ideology. Baldwin concluded that Collier’s approach was the soundest and thenceforth worked with him to reform Indian policy. In 1931 the aclu created an Indian Rights Committee and began to act significantly in this area, always in close collaboration with Collier. From its first meeting— on April 1, 1931—until he resigned to become solicitor of the Interior Department in early 1933, Nathan Margold was chairman of this committee. Margold was a brilliant attorney, a protégé of Felix Frankfurter at the Harvard Law School. Frankfurter had fought a vigorous but unsuccessful battle against anti-Semitic opposition to keep Margold on the Harvard Law School faculty.49 Margold was intensely devoted to using his legal talents on behalf of Indians and African Americans. In 1930 —when he was only thirty-one—he accepted a series of assignments, almost all on a voluntary basis, which must have made him one of the busiest attorneys in the country for a few years. In the long run, one task unconnected with Indian affairs was of greater importance than anything he did in the field of Indian policy. Margold accepted an assignment from the Garland Fund and the National Association for the Advancement of Colored People to do no less than develop a legal strategy to overcome racial segregation and discrimination against blacks in the country. In May 1932 the plan he produced was accepted by the naacp; ultimately it led to the 1954 Supreme Court decision in Brown v. Board of Education, which reversed sixty years of legal racial discrimination.50 Margold was also a board member of the aida. He began pro bono legal work on behalf of the Pueblos for the aida in 1930, and in this capacity he made a study of the Indian claims issue and litigated several cases for Pueblos. In that same year he became the legal adviser for Indian affairs of the Institute for Government Research, which had produced the Meriam Report.51 In January 1932, as chair of the aclu’s Indian Rights Committee, Margold agreed to draft several Indian reform bills for Collier, but his busy schedule prevented him from doing much until the main reform bills backed by Congress had been introduced. In early February Baldwin wrote Collier that Margold would be unable to get to bill drafting until mid-March; Collier wrote back that he had “inferred” as much from the fact that Margold was not an-

John Collier and the Tribal Alternative

165

swering letters. In early March Collier wrote that the Klamath incorporation bill, the tribal council bill, a measure to permit Indians to remove superintendents, a Pueblo bill, and the Swing-Johnson bill had been introduced in Congress; these were the principal bills Collier was advocating.52 Thereafter things did not get easier for Margold, but later in the year he drafted several bills that were also part of the Collier program. On March 23 Margold wrote Baldwin that he could not attend a meeting of the Indian Rights Committee because he was arguing a Texas primary suit for the naacp in Washington. On April 21 he met with Collier and Baldwin and agreed to “rewrite” the Klamath incorporation bill and produce two new bills—to prevent the kidnapping of Indian children to compel them to attend boarding schools, and to repeal a number of “espionage” statutes that could be used to restrict civil liberties on reservations. Later Albert Hirst, another attorney member of the Indian Rights Committee, sent a draft of the kidnapping bill to Margold, who modified it, and in the fall Margold came up with a bill to repeal the espionage laws. On June 13, 1932, Baldwin wrote the members of the committee that several bills “for Indian civil rights pending in Congress . . . were all approved by members of your Committee, and were prepared by the chairman, Nathan M. Margold,” but this was a substantial exaggeration. Margold wrote at this time that Collier had told him that while “it is most unlikely that any of the proposed bills can be put through Congress at the present session, it is important to have them drafted and introduced,” partly because they would be useful in attempting to commit presidential candidates to the program embodied in them.53 It is possible that Margold and the aclu supplied a key element behind Collier’s legislative efforts from 1932 on—namely, the knowledge that the courts still held that Native American societies retained significant elements of their aboriginal sovereignty. The argument that Indians already had rights to selfgovernment recognized by the courts was not an element of Collier’s program before 1932, but it was thereafter. Collier was not an attorney and, as noted above, had only the advice of various attorney friends on an irregular basis, except when the aida was able to hire lawyers to work on specific cases or matters. He may not have been aware earlier of the strength of the judge-made legal structure of Indian law in this area.

A Tribal Council Bill Is Introduced The tribal council bills introduced in 1911–1912, 1916, and 1922 had not moved far toward passage; Congress was not ready to consider more than incremental change in Indian policy, and there was little support for the ideology

166

A Fateful Time

on which they were based. The next bill dealing with tribal councils was part of the package that Collier was developing, and it received more congressional attention, although again it failed. The unwillingness of the RhoadsScattergood administration to support this bill indicated another aspect of their reluctance to move beyond the assimilation-dominated version of administrative reform they embraced. In February 1932 Collier wrote Roger Baldwin that his office was readying a series of bills to be presented to Congress. He told Baldwin, “I believe we are getting a number of matters in shape” and listed the Klamath tribal incorporation bill; the tribal council bill; a proposal to let tribal governments contract to spend health, education, and other funds; a measure to let tribal governments control “permit and leasing matters”; a bill dealing with heirship problems involving allotments; a proposal to encourage production and sale of Indian arts and crafts; the Swing-Johnson bill; a Pueblo Lands bill; and a measure dealing with Indian appropriations.54 Collier also wrote in this letter that “the proposed bill giving authority to tribal councils for numerous matters, has been completed and was placed in the Record by the Montana Indian delegates three days ago and should be introduced next week.” The tribal council bill was introduced in February, although clearly Margold did not draft it. Collier issued several lists of his legislative goals during 1932 –1933, and the tribal council and incorporation bills were always on these lists. In the January 1933 issue of American Indian Life, he gave the most complete version of his “reorganization program for Indian affairs” before he became commissioner. Asserting that a major objective of the reorganization had to be the rejection of the “fiction of impermanence in the Government’s Indian task,” he laid out a program to provide for continuing national responsibility for both the “purebloods” who still retained their “unique cultures, systems of domestic government, systems of productive economy, and languages and customs” and those “other Indians” whose “ruin” was the consequence of “the Government’s own continuing actions.” 55 Here was another statement by Collier that his program was based on recognizing the division within Indian societies between the groups called here traditionalists and progressives. The fundamental aim of reversing the policy of forced assimilation was clearly stated in this article. He wrote that “the historical continuing purpose has been to destroy Indian tribal life, community life, ancestral heritage and self-identification, and to pulverize the Indian estate through forcing upon each Indian a per-capita atom of the tribal lands.” He went on to assert that “the changed purpose and orientation would seek to discover in Indian life, and to conserve and utilize, all of the social energies which exist. Among such energies are those which are in the keeping of, and which are products of, the Indian institutional heritage.”

John Collier and the Tribal Alternative

167

A number of the concrete measures Collier listed in this article would have had the effect of transferring a great deal of authority from the Bureau of Indian Affairs to Indian organizations of several kinds, and others would have restricted the authority of the Bureau and thus were compatible with the tribal alternative. At the same time they clearly intended to continue the national government’s trust obligations to protect Native American property. The proposals most directly bearing on the tribal alternative were these: —Legislation subjecting to court review the so-called Reservation Courts of Indian Offences [sic] (Indian Bureau “courts” which violate every concept of “due process”), and wholly abolishing these Bureau “courts” on reservations (a) where Indian custom still prevails and Indian tribal councils exist or (b) where tribal custom has become inoperative and the State civil and criminal laws are naturally applicable. —Legislation empowering Indian tribes to form tribal councils, with initiative and veto power in the sale or lease of tribal properties and the uses of tribal funds; and a changed administrative policy, identical with that of Canada, of making the tribal councils responsible partners with the Government in local Indian administration. —Legislation, going beyond the paragraph immediately above, authorizing and helping Indian tribes, and groups of allotted Indians, to form themselves into holding companies or corporations (in some cases, municipal corporations), which corporate bodies would administer the tribal properties and would re-acquire, for corporate operation or for reallotment according to need, the allotted lands otherwise destined to pass to white ownership. These proposals were, with the exception of the section on allotment, the heart of the reorganization bill introduced by the Collier administration in 1934. There was no call for the outright end to allotment and his idea at this time for dealing with the problems that allotment had created was that ownership of allotted lands should be vested in Indian corporations. Along with these major proposals, the 1933 list included the goals of repealing “espionage” statutes, establishing court review of “executive discretion” over a wide variety of matters, permitting Indians to remove “objectionable” Bureau employees, and providing financial credit for Indians. Other proposals called for transferring irrigation and forestry from the Bureau to other departments, substantial reorganization of the Bureau, including authorizing states to assume some Bureau functions (with national reimbursement), speeding up the educational reforms begun by W. Carson Ryan (especially closing down boarding schools), changing the accounting and fiscal practices of the Bureau, employing more Indians so that the bia would

168

A Fateful Time

no longer be “a white man’s agency for employing white men,” ridding “the Indian Service of dying, dead and fossilized human timber, along with the raising of professional standards and the enlistment of new, dynamic workers,” and proposing two minor administrative changes in the Bureau. This group of policies obviously embraces ideas derived from the administrative reform ideology. But their main thrust is to control and limit the bia without abolishing it, a notion arising from the tribal alternative ideology. The heart of these suggestions is clearly the tribal council and incorporation proposals. The list of needed legislation was quite long and included many elements. Collier had concluded that not just the most important reforms but many others needed to be achieved, although there is no suggestion at this point that an omnibus bill dealing with most of these ideas was needed. However, almost all of the items he listed became law, in the Indian Reorganization Act or in separate bills, during the early Indian New Deal.

The 1932 Tribal Council Bill The tribal council bill—now part of Collier’s agenda—was introduced by North Dakota Senator Lynn Frazier as s. 3668 on February 5, 1932; accompanying it was a companion bill, s. 3717, which gave reservation Indians some authority to remove superintendents. The bills did not reach the hearing stage, but a National Archives file provides much information about how both the Rhoads-Scattergood administration and Collier approached the tribal alternative ideology. The tribal council bill did not attempt to impose any specific governing structures on Indian societies but established instead a procedure by which any group that wished to do so could create a tribal council by adopting a constitution.56 It provided that if a petition asking for an election to choose a body to draw up a constitution and containing the names of at least 25 percent of the adult members of “any Indian tribe residing on any reservation” was presented to the commissioner of Indian Affairs, he was obliged to call such an election within sixty days. A constitutional committee of not less than nine members would then be elected to draft a constitution and bylaws. The drafted document was to be presented within sixty days to a “general meeting” of the tribe, which could then adopt, amend, or reject the constitution or any part of it (section 1). The same basic approach was part of the legislative proposal sent to Congress in 1934 that became the ira. s. 3668 displayed an awareness of existing law by stating that “all authority vested in Indian tribes or tribal councils by existing law shall be vested exclusively in the tribal councils provided for by this Act” (section 3). Essentially

John Collier and the Tribal Alternative

169

the same language in the draft ira was explained by the Bureau as referring to powers acknowledged by the courts to remain with Native American societies as part of their aboriginal sovereignty. At the same time, the bill granted extensive new authority to such councils. One section stated that “such tribal councils shall be empowered to represent their several tribes before the Congress or the executive departments of the United States or in the courts” (Section 2). Another gave the councils authority to employ legal counsel, without approval by the secretary of the Interior, although the attorney general was authorized to “review” the “choice of counsel and the fixing of fees paid . . . on application of any member of the tribe” (section 4). The councils were also to have control over congressional funds appropriated to pay their expenses or assessments levied by them (section 7). Section 3 required consent of the tribal council or a general council for the sale or lease of tribal lands and the granting of permits and contracts for the benefit of the tribe. In order to protect the grants of authority to tribal councils, the bill provided that “the Secretary of the Interior shall dismiss any employee or officer under his jurisdiction who shall, in any manner, either directly or indirectly, interfere with any tribe or any of its members in the free exercise of the powers conferred by this Act” (section 9) and made such interference a misdemeanor carrying a penalty of a fine of not more than $500 and/or imprisonment for not more than six months (section 10). While s. 3668 did put some limits on the structure of governments that could be created under its authority—providing a minimum number of council members and requiring annual elections and a referendum procedure for annulling council decisions by a popular vote—it left most matters of structure up to the constitutional committee and the members of the tribe. Finally, the bill made it clear that there was no intention of supplanting the traditional Pueblo governments (although it did not refer to other types of traditional governments). Section 8 declared that “the Pueblo tribes of the States of New Mexico and Arizona may retain their traditional and established tribal governments in accordance with their established customs, and all provisions of this Act relating to powers and functions of the tribal councils shall, so far as consistent with such governments, apply equally to such governments.” The file on this bill in the National Archives contains comment on it by two superintendents and a number of people in the Washington office. All were opposed to it, although one Washington official agreed with the intent of the bill. Gertrude Bonnin endorsed both of the Frazier bills in a newsletter from the National Council of American Indians dated February 22, 1932. She urged “united efforts” by Indians to let Senators and Representatives know they favored “this constructive program to ‘help Indians help themselves.’” The

170

A Fateful Time

superintendent of the Standing Rock Agency in North Dakota wrote complaining that “Mrs. Bonnin’s propaganda” was being distributed, and implied that this was happening with the approval of Senator Frazier’s office. He went on to recommend some kind of “publicity against the Senators who are doing this sort of stuff” and said: “I assume, of course, that the Office and Secretary understands [sic] the vicious and destructive effect the bills introduced by Frazier would have upon the Indians.” The superintendent asserted that “so much propaganda has been made and so much silly talk about the abuse of the Indians and their rights and what they should have given them that a large part of these people consider themselves better than the white people among whom they live.” He ended by asserting that “every bit of this propaganda only adds fuel to this flame.” The superintendent of the Fort Peck Agency wrote that he objected to the provisions giving tribal councils control over land decisions because “we are from time to time leasing small tracts of tribal land for grazing purposes at 10 cents an acre in spite of the fact that the executive committee of the general council in February or March of this year objected to having any Indian land leased for grazing purposes at less than 15 cents an acre.” He did not explain why his judgment on this matter should prevail over that of an Indian government. One official of the Washington office wrote that the bill was objectionable because it would make the secretary of the Interior “subservient to the action of the Council.” T. B. Boone of the Washington office agreed, but he used stronger language, stating that the bill had a “decided Soviet or Bolshevik tinge” and would indirectly “abolish the Indian Bureau” and thus produce “anarchy and chaos.” Boone also objected to the obvious fact that the bill was incompatible with the objective of destroying tribal life, stating that it would “undo the work of years in trying to break up tribal relations and put Indian affairs on an individual basis. Unquestionably it would tend to perpetuate the tribal organization and the tribal ‘outlook,’ and thus seriously retard and handicap the ultimate solution of the Indian problem.” John R. T. Reeves, the counsel for the Bureau (who would be retained by the Collier administration), wrote a generally negative report on the bill; his principal objection was that it was unnecessary. He asked: “Can’t we very well point out that this situation very largely now obtains, in that most of our Indian tribes now have a ‘tribal Council’ or some such similar organization, functioning under rather well-defined by-laws, etc., and hence no additional legislation is needed to bring this about.” Mr. Cooley of the Washington office objected to the provisions mandating dismissal of employees for interfering with Indian government and making

John Collier and the Tribal Alternative

171

such violation a misdemeanor. He said that these provisions were “too drastic and would accomplish no good.” However, Cooley provided the only comment from within the bia in support of the aims of the bill. He wrote that he agreed with its “purpose” to “give the Indians more to say in the handling of their own affairs” but stated that he thought Indians were not prepared for powers as broad as those granted in the bill. He suggested that “some plan more satisfactory than the present one should be worked out for recognizing the Indian’s tribal rights.” He had first written “giving” for “recognizing” in this sentence, suggesting that he was aware that tribes had authority to govern themselves. Commissioner Rhoads on May 26, 1932, wrote a memorandum to Secretary Wilbur opposing s. 3668, repeating some of these arguments against the bill. He agreed that the general aim of the bill was sound but incorrectly assumed that it would provide a single rigid pattern for all Indian groups. He asserted, “The sponsors of the bill apparently assume that all Indian bands and tribes of the United States have attained the same level of intelligence and the same capacity to manage their own affairs and the affairs of the tribe” and stated bluntly: “This is not the case.” Rhoads claimed that the Bureau was already encouraging tribal councils but on a piecemeal basis that took into account the conditions of each tribe and the readiness of each for self-government. Rhoads wrote: We are desirous of bringing the Indians into active participation in questions affecting their welfare. It is our conviction, however, that each group of Indians must progressively learn what self government means and the responsibilities involved. . . . We feel that the determination of the powers and duties of tribal councils is more a matter of alert administrative concern than universally applicable legislation. Already without legislation Indian tribal general councils and tribal business committees are being consulted more and more as their capacity for action grows. We are encouraging the establishment of councils where such procedure seems wise and is desired by the Indians. The process has not yet been and cannot be brought instantly to a point where all Indian tribes are prepared to assume full charge of their affairs.57 Rhoads also wrote that he was opposed to transferring the authority of the Department of the Interior to tribal governments, saying, “This bill, if passed, would create a chaotic condition. It leaves the responsibility with the Secretary, but transfers his authority minus his responsibility to proposed councils.” He also claimed that “the authority of the Secretary of the Interior would be limited to mandatory approval of the actions of the councils.” Secretary Wilbur, in communicating to the Senate and House committees the Interior Department’s opposition to s. 3668 and a companion House mea-

172

A Fateful Time

sure, h.r. 11080, endorsed the commissioner’s objections but predictably went further in the direction of termination. Wilbur wrote that the national trust responsibility to Indians was incompatible with control by them over their own affairs. I do not believe the department should be placed in the position of carrying responsibility for the affairs of any Indian tribe without having final authority for all administrative actions. If in the opinion of Congress any of the tribes have advanced to the point of independence from Government supervision, I would raise no objection whatever to legislation which would remove them from Federal jurisdiction, providing the attendant responsibilities were understood and accepted. To give the Indians all the benefits of Federal guardianship and virtual independence of departmental control would be an anomaly that I would deplore.58 In June, Assistant Commissioner Scattergood, in a letter to Roger Baldwin of the aclu responding to Baldwin’s criticism of the Bureau’s opposition to s. 3668, repeated the claim that the bill provided for “a standardized plan of tribal council control upon 193-odd tribes of Indians in various stages of organization or disorganization” and was therefore “absurd.” He also asserted that except for the Pueblos, existing Indian governments were not traditional ones but instead were contemporary creations. Scattergood wrote: “By the way, I hope that you are not under the impression that these tribal councils are an actual continuation of the original tribal governments. Your reference to the ‘old tribal councils’ suggests a cultural revival; as a matter of fact, the tribal councils in existence, with the exception of those among the Pueblos, are artifices worked out through many years of Indian Bureau administration, and even the Pueblo governments are a Spanish adaptation.” 59 The response of the Rhoads-Scattergood administration to the bills to grant a large amount of authority to Indian governments was consistent with their practice of selectively approving tribal councils without any formal rules to guide the office. It was also consistent with their reaction in 1930 to the charges by Collier that they had broken their “pledges” (made in the 1929 letters that Collier had jointly drafted) to work for greater tribal control. They believed that Native American governments should be tailored by the Bureau of Indian Affairs to suit the particular situation of each society. Such a view assumed that top non-Indian administrators would act benevolently in such cases. It is true that Collier could not find numerous instances between 1929 and 1933 in which the Bureau had acted otherwise, as he had during the Burke regime, but clearly there was no guarantee that subsequent administrators would not revert to earlier patterns. The Rhoads-Scattergood administration also ignored entirely the self-governing authority that the courts recognized was still re-

John Collier and the Tribal Alternative

173

tained by Indian societies. Finally, the administration was patronizing in the extreme, believing that only a few Native American groups were capable of self-government to replace direction from enlightened bureaucrats. In his argument for the 1932 tribal council bill, Collier concentrated on defending it from distortions by the administration. He explained the bill as part of a package of “legislation which gives to Indians participation in the management of their own affairs, and (or) circumscribes the arbitrary powers of the Department.” Specifically, he cited the bill’s provisions to authorize tribal councils to approve or disapprove contracts with attorneys, control the funds used to pay their own expenses, and veto actions involving the sale or lease of tribal property.60 Collier strongly objected to Wilbur’s proposal that a tribal council bill be linked to termination. “If Indians are to be given a voice in their own affairs by the Government it must be, according to Secretary Wilbur, at the price of surrendering all immunities of wardship, including immunity from taxation,” he stated, and asserted that such an approach opposed a “line of policy” like the Canadian one “which within the system of guardianship would endeavor to build up instrumentalities of Indian self-help, group responsibility, etc.” He then said that Wilbur’s attitude, if it be genuine, displays an ignorance, innocent or willful, of practically all the responsible contemporary literature on the subject of the management of Indians and other dependent peoples, including the past and present Canadian and Mexican situations and even the policies of our own Congress as embodied in numerous statutes which, as stated above, the present administration of the Interior Department have baldly ignored or have endeavored to circumvent. I refer to the Congressional policy, represented in a considerable body of statutes, seeking to protect the Indian estate through giving the Indians, collectively, a voice, to the extent at least of a veto power, in some of their property matters. Finally, Collier linked administration opposition to the tribal council bill to its attitudes toward most other proposals to change fundamental Indian policy. He listed these as: the Klamath incorporation bill, the bill to improve accounting procedures to give Congress control over all Bureau expenditures, a bill repealing “espionage” statutes, a bill allowing tribes to remove “obnoxious Indian Bureau officials,” and the “Pueblo Relief Bill.” He charged that “there is no prior administration, so far as my own contact or reading have gone, which at any one moment has fought against as many constructive, liberating and protective measures on behalf of the Indians as the present Commissioner and Secretary are now doing in their action on the several bills referred to in this letter.”

174

A Fateful Time

The American Civil Liberties Union and its Indian Rights Committee campaigned vigorously for the tribal council bill, the measure to allow Indians to remove superintendents, and the Klamath incorporation bill. The tribal council bill was also supported by a statement supposedly put together by Mead Steele, a member of the Fort Belknap Tribe who was in Washington as a delegate on behalf of his society, and endorsed by Indians representing fifteen other tribes.61 Although this document began with the statement “We are Indians, spokesmen of various Indian tribes,” it obviously bore the marks of John Collier. For example, the first major point repeated, with identical language, the charges Collier’s organization had made in 1930 that the Rhoads-Scattergood administration had gone back on “promises” made in the 1929 letters. Specific allegations included a charge that the administration had abandoned promises to seek a tribal council bill and work for incorporation legislation. The document also contained a statement of endorsement from Collier, Stella Atwood, Haven Emerson, George P. Ahern (a member of both the American Indian Defense Association and the aclu’s Indian Rights Committee), and Margaret Brown of New York City. Nevertheless, the document did bear the names of fifteen Indians—six from New Mexico Pueblos; one from a Hopi village council; two from the Standing Rock Reservation; one each from the Flathead Reservation, the Santee Sioux Reservation, the Blackfeet Tribe, the Pima Tribe, and the Mission Indian Federation of California; and Steele, who was from Fort Peck. Later in March, Collier wrote Roger Baldwin that representatives of about fifty tribes had signed the document. While Collier seldom mentioned this statement subsequently, it did represent a small but significant amount of Indian support for his program. Perhaps its aftermath discouraged him later from seeking such public support. According to Collier, Steele was later suppressed by the Indian Bureau for his part in this action. In a letter to Roger Baldwin, Collier stated that “Mead Steele, who primarily has sponsored the Indian appeal, is being cut off from his per diem by the Indian Bureau and forced to go back to his reservation. . . . [T]he tribe is standing back of Steele but as usual is helpless.” 62 While the tribal council bill did not pass in 1932 and did not even reach the hearings stage in the legislative process, it provides significant clues to the attitude Collier took toward Native American self-government. Ultimately the Indian Reorganization Act contained the recognition of the body of judgemade Indian law first acknowledged in this bill, and one of its components was included in the ira. This was the provision that sale or lease of Indian lands could not take place without Indian consent. The measure also contained a provision allowing Native societies to employ attorneys without consent of the Interior Department, for which Collier worked unsuccessfully dur-

John Collier and the Tribal Alternative

175

ing the congressional struggle over the ira. More important, it revealed clearly that Collier had no intention of imposing governments based on written constitutions on any Native American society.

Conclusions This chapter has argued that from the beginning of his work on behalf of Indians John Collier’s most fundamental purpose had been to reverse the governmental push toward forced assimilation of Native Americans. In this respect he differed at the most basic level from the advocates of the ideology that had been dominant within the Indian Bureau for decades but also from those favoring administrative reform (as it was then generally understood) and the few who favored termination. All of these other ideologies assumed that the national government should aim at the goal of assimilating the Indians and that assimilation would triumph; they differed on how or when to reach this desired status. At the same time, Collier shared an assumption of many others acquainted with Indian affairs, in spite of the fact that no one had an adequate overall view of the situation. This was that most Indians had lost their tribal cultures; particularly, their governmental institutions had largely disappeared, except for the Pueblos, which were of central concern to him. Collier also was aware that some Indians were assimilated and that others would choose to move in this direction, although he did not often mention this fact. Moreover, he believed that even if the destructive effects of allotment could be halted, the reservation land bases were often too small to permit all Indians to make a good living from them—and in this he was surely right. This meant that some Indians would have to leave the reservation so that others could remain. Given these conditions, he sought policies to protect the right of clearly unassimilated Indians, like the Pueblos, to retain their traditional societies while helping those who wanted to assimilate to do so. It is suggested that he did not emphasize this latter goal because he did not want to run the risk of being misunderstood to endorse assimilation as a desirable goal for all Indians. It has also been argued here that, after the Meriam Report, Collier understood that the protection of Indian property was the central issue. He probably learned from this report that the allotment system was destroying the Indian land base on many reservations, although as late as early 1933 he had not advocated outright repeal of the allotment law. He believed that experience with these laws had demonstrated that preservation of the trust responsibility of the national government toward Indians was essential if their property was to be preserved from non-Indian takeover, and also that preservation of Indian

176

A Fateful Time

cultural differences was not possible without protecting the reservations. But this presented a dilemma, because he also saw as a principal problem the arbitrary nature of the exercise of authority over Indians by the Bureau of Indian Affairs. How to curb the bureaucracy without abolishing it was his goal. For many years Collier did not develop a set of legislative proposals that would offer effective ways and means of meeting these complex goals. By early in 1931, however, he was talking about “indirect administration,” a policy of governing through Native institutions, as the basic solution to the problem. Advocates of termination did not share Collier’s dilemma; “emancipation” from national control was consistent with forced allotment if one did not worry whether Indians could retain their newly private property and assumed that Indians should be assimilated and would assimilate more rapidly without this control. Collier differed from terminationists not only in seeking as a higher goal the preservation of cultures different from that of mainstream America; he also clearly perceived that retaining the national government’s guardianship role was essential if this goal was to be realized. It is suggested that he showed more interest for some time in legislation to allow tribes to incorporate than in measures to strengthen their governments because, following the Klamath example, he saw tribal corporations (democratically constituted cooperatives) as an effective way to help Native Americans preserve and in fact enlarge their land and resource bases. Whatever the reasons, Collier did not develop a set of bills embodying his full program to go before the Congress until 1932. These bills for the first time constituted a coherent program based on the tribal alternative, although they included elements of the administrative reform orientation of the Meriam Report. A central component of this package was to secure statutory recognition for Native American governments where these still existed and to provide a mechanism by which societies whose governments had been destroyed could build new governing structures. Moreover, he wanted legislation to allow tribes, like the Klamath and Menominee, to use the cooperative device for economic purposes if they chose this route. One of the elements in his notion of incorporation was that the corporations should have the authority to acquire land that had been allotted and return it to tribal control. The 1932 council bill, combined with the Klamath incorporation bill, represented the core of his reform proposals from this time on. Strengthening Indian governments in one or more of these ways, where the Indians wanted to move in this direction, would help them preserve and even restore their land bases and offer mechanisms for tribal rather than individual use of land and resources to raise the living standards of Indians.

Chapter Seven Drafting the i r a Proposal

With the election of Franklin D. Roosevelt as president, John Collier became commissioner of Indian Affairs. The most persistent and effective critic of Indian policy for twelve years was given the chance to shape that policy himself. Lawrence Kelly has told well the story of how Collier came to be appointed to that position.1 Beyond dispute, he worked hard to win the appointment, because he was convinced that he was exceptionally qualified to use the commissionership to reverse national policy in this area and help Native Americans survive. Kelly concentrates on the initial competition between Collier and Harold L. Ickes for this post (although Ickes was unaware of it), which ended when Ickes decided to try for secretary of the Interior. When Roosevelt chose Ickes for the Interior position, the way was opened for Collier to become commissioner of Indian Affairs. With help from Ickes, he was appointed. There is no evidence that serious consideration was given to appointing a Native American to this post, although at least three were suggested. Senator Burton K. Wheeler reported in his autobiography that “Roosevelt had wanted to appoint an Indian as commissioner but I convinced him it would be a mistake because I knew of no Indian at that time who was competent to handle the job.” Wheeler did not say whether Roosevelt was considering a specific Indian for the post, and we do not know whether any actual names reached him. Three sources report that Indian names were put forward. Hazel Hertzberg has written that Gabe Parker, a Choctaw Indian, was suggested by an “intertribal conference held in Oklahoma.” In an article in American Indian Life in early 1933 one Indian— Omaha attorney Thomas L. Sloan—had been “put forward by the Winnebago Tribe.” Indian educator Henry Roe Cloud had been suggested as a possible future Indian commissioner in 1928 by Lewis Meriam and Edward E. Dale, both members with Roe of the team that wrote the Meriam Report, and in February 1933 his name was proposed by several members of the Navajo Returned Students’ Association.2 That a Native American appointed at that time would have championed Indian rights as strongly as Collier cannot be taken for granted. The first Indian commissioner, Ely Parker, who was appointed by President Grant, supported assimilation. Indians considered by non-Indians as of 1934 to be competent enough to be effective in the post would have been drawn from the 177

178

A Fateful Time

small number of highly assimilated and highly able Indians who are the subject of Hazel Hertzberg’s book, The Search for an American Indian Identity: Modern Pan-Indian Movements. This does not necessarily mean that they would not have wished to work for the survival of traditional Native American societies, but neither can it be assumed that they would have taken this stance. Sloan, for example, would almost certainly have not launched a root-and-branch assault on the allotment policy. The strongest of Secretary Ickes’s reasons for backing Collier was his stance in favor of the Indian “point of view.” In announcing Collier’s selection, Ickes acknowledged that he had had differences with Collier, but “no one exceeds him in knowledge of Indian matters or his sympathy with the point of view of the Indians themselves. I want some one in that office who is the advocate of the Indians. John Collier, with whatever faults of temperament he may have, has to a higher degree than any one available for that office, the point of view towards the Indians that I want in a Commissioner of Indian Affairs.” Ickes also said that Collier was “in my judgment . . . the best equipped man who has ever occupied that office,” and an excellent case can be made that this was true.3 To a considerable extent previous commissioners had been selected because of their services to the party of the president rather than their knowledge of Indian life. If there was anyone in 1933 more strongly devoted to preserving Indian life as he understood it and better informed about the issues of Indian policy no one has suggested who that might have been. As commissioner, Collier was vigorously supported in his efforts by his immediate superior, Secretary Ickes, also one of the most able people ever appointed to his position and likewise passionately devoted to the public interest as he saw it. Extremely hardworking and unimpeachably honest, Ickes had a limited but meaningful prior record of support for Indians through Collier’s organization. One of the national leaders of Midwestern Progressivism for many years, as a Republican he had helped to build support for Roosevelt in the Midwest during the 1932 election. His wife, Anna Wilmarth Ickes, had a long-standing “passionate interest” in Indians, belonged to Stella Atwood’s Indian Welfare Committee, spent much of her time at a New Mexico cabin in Navajo country, and during the 1920s had published Mesa Land, a sympathetic book about Southwestern Indians.4 Harold and Anna Ickes had worked to establish the Indian Rights Association of Chicago. This effort was a response to a visit to Chicago in 1923 by Collier and the Pueblo delegation who were touring the country to build opposition to the Bursum bill. Harold Ickes wrote that a meeting with the Pueblo representatives had informed him about “one of the most stirring stories of black iniquity that I have ever heard.” He carried on a significant correspondence in opposition to the Bursum bill during 1923, and was added to the

Drafting the IR A Proposal

179

board of Collier’s American Indian Defense Association at its first meeting. However, Ickes quickly got into a dispute with Collier over the unsuccessful attempt to organize a national Indian rights group to unify the various proIndian groups. In August 1923 an acrimonious exchange of letters between Ickes and Collier ended their collaboration, apparently until 1930, when Ickes supported efforts led by Collier to increase appropriations for Indian schools. However, in 1931 he had another dispute with Collier, over the latter’s attack on Herbert C. Hagerman.5 Ickes appointed Nathan Margold as solicitor of the Interior Department; he had been proposed by Roger Baldwin of the aclu. The secretary said later that Margold “was the first one I selected to help me bear the burdens and responsibilities which I had assumed.” He went on to praise him highly, stating that “I do not believe I possibly could have made a better selection. I sincerely believe there never has been and probably never will be a more competent, fairminded, honest, sincere, devoted public servant.”6 Margold had been heavily involved with Indian affairs before his appointment, in addition to his work as head of the aclu’s Indian Rights Committee, during which he collaborated closely with Collier, he had served as counsel for Pueblo Indians. As solicitor he was in a position to have a significant impact on the administration’s Indian policy, although as chief legal officer for the department he had many other responsibilities. The early days of the New Deal were a time of unparalleled executive dominance of Congress, when bill after bill of major importance was approved quickly by both houses; the 100 Days of the spring of 1933 have remained a unique episode in American legislative history. Collier concluded that any bill he presented to Congress would be approved if it had presidential approval. He said as much the next year, when the draft bill to make major changes in Indian policy went to Congress. He believed that the way was open for swift congressional approval for the far-reaching reform effort he had been seeking. Yet the Indian Reorganization Act did not become law until fourteen months after Collier became commissioner, and when it passed, it embodied only part of what he had hoped for. One reason was that Collier had still not crystallized into a comprehensive legal program his passionate desire to save Indian life.

The Early Months of the Collier Administration Collier had developed many bills in 1932, and in early 1933 he had made a detailed list of changes he sought. Why did he not simply reintroduce these bills early in his administration?

180

A Fateful Time

Several circumstances, which he had probably not anticipated, occupied the attention of Collier and his small group of top administrators in the first few months after he took office. First, while Collier was in many respects exceptionally well prepared for his task, he had never before headed an institution of any size. He had a great deal to learn about administering even a relatively small federal agency, with several thousand employees. Any administrator new to a specific agency needs some time to become acquainted with its internal practices and history; many important matters affecting how a bureaucracy functions are not fully visible to even well-informed outsiders. Another requirement facing any top administrator is the necessity to get to know the individuals with whom he or she has to deal. These matters require a learning period for any new administrator. Other circumstances unique to Collier’s situation caused further delays. Because he embraced a radical goal—in effect to reverse the ideology and related policies that had dominated the Bureau for more than forty years—the selection of top officials in the Bureau must have been unusually difficult. The pool of people with administrative skills or potential who were at the same time knowledgeable about Indian affairs was small to start with, and most of those who met these tests had been committed to the forced assimilation ideology. An immediate clean sweep of positions at the top in Washington and the field was out of the question, and he did not attempt it. Nevertheless, in order to formulate his program and to lay the groundwork for carrying it out he needed to find administrators with these characteristics. In the first few months of the Collier administration there was little turnover of officials. During this early period only 5 of the 22 highest general positions listed in the government’s Official Register were filled by new people. Collier; Assistant Commissioner William Zimmerman; Robert Marshall, director of Forestry; Albert L. Wathen, director of Irrigation; and Paul L. Hallam, acting chief of the Probate Division, were the only new faces during this period, and the last two did not become involved in the legislative effort that produced the ira. Change was also slow among the superintendents, who had primary responsibility at each reservation or agency. In the first few months, 90 of the 106 positions at this level were filled by individuals who had been superintendents during the last year of the Rhoads-Scattergood administration, although some had been transferred to new posts.7 After passage of the ira the top leadership of the bia was well aware of the difficulties in staffing the agency with holdover administrators when they wished to make radical changes. In the fall of 1934, about eighteen months after he took office, two of the most important of his closest advisers in the agency estimated that most of the key staff of the Bureau did not fully agree with the new policies Collier wished to implement. Walter V. Woehlke wrote

Drafting the IR A Proposal

181

on October 12, 1934, that “in the Field we have some ninety odd superintendents, very few of whom even know that the policy has changed or what the new policy is. I doubt whether more than half a dozen are fully familiar with the details of the reconstruction plan as laid down in the Indian Reorganization Act. Many of them are not in sympathy with what they consider the objectives of the Bill to be.” Ward Shepard, who had been brought in several months after the change of administration, wrote on the same day that “as Zimmerman has truly said, there is probably not one single superintendent who thoroughly comprehends the Wheeler-Howard Act and the policies back of it. . . . Moreover, as Armstrong said in open meeting yesterday, none of the Division Chiefs in Washington fully understand either the Act or the policies behind it.” 8 Significantly, even the Collier administration did not at first appoint Indians to top policy-making positions. None of the handful of men closest to Collier in the early years of his administration was an Indian, and as late as June 1934 only 8 of the 103 superintendents were Indians. One of these was Wade Crawford, who had led the effort to secure an incorporation bill for his tribe; he was appointed superintendent of the Klamath Agency in June 1933.9 Several people have suggested that Collier had some personal characteristics not usually associated with excellent administrators. There was his tendency to acrimonious conflict with some of his supporters. In addition, as Kenneth R. Philp has put it, “he had the reputation of being a dreamer.” Philp went on to report that “at the office Collier often sat in his swivel chair ‘coiling his legs into a kind of nest’ and he frequently smoked a corncob pipe, which he kept in an empty water glass on his desk. Instead of wearing a suit, Collier usually came to work in a baggy old long-sleeved green sweater. Gossips in Washington rumored that the commissioner sometimes kept a pet frog in his pocket.” D’Arcy McNickle, later one of his top officials, said that Collier was “really a poet, not an administrator.” 10 In spite of these perceptions, Collier was clearly not a failure as an administrator, although no doubt he could have been more effective. He stayed in office for twelve years, resigning rather than being forced out. During this long tenure the bia was not strongly criticized for inefficiency, although various elected officials and persons outside the agency did not hesitate to attack him for his ideas or policies. It was fortunate that Zimmerman, the second most important top official of the bia during all these years, was an excellent administrator who also knew something of Indian policy and had been associated with Collier’s reform efforts before assuming office. Zimmerman stayed with the bia after Collier’s departure and eventually became acting commissioner.11 Gradually during 1933, Collier built up a group of top officials on whom he could rely for policy development in the directions in which he wished to go.

182

A Fateful Time

By the time drafting of the ira began, his principal advisers included Zimmerman, Walter Woehlke, Robert Marshall, Ward Shepard, and James C. Stewart. He probably also often consulted Allan Harper, who had replaced him as head of the American Indian Defense Association. All or most of the members of this group were regularly assembled or were asked to comment in writing when major decisions had to be made. The inner circle, most of whom remained for years, understood and sympathized with Collier’s objectives, but they were only the tip of the bureaucratic iceberg. The extent to which, in cooperation with Collier, they were able to change the bia “culture”—the matrix within which the day-to-day decision-making of the agency operated—is one of the most important questions in evaluating the effectiveness of the Indian New Deal, but we do not need to make such judgments here. Another aspect of Collier’s early tenure at the bia does need discussion because it delayed preparation of a legislative program. Along with the heads of other agencies, Collier had to deal with contradictory aspects of early New Deal policy. During the 1932 campaign Roosevelt had promised voters to make economies in government if he were elected. He promised to go beyond anything President Hoover had done to cut federal employment, and this included a 15 percent across-the-board pay cut. At the same time, in order to stimulate the economy, new programs with new appropriations were begun. In some cases special agencies were created overnight but in others reduced staffs had to somehow get the additional programs up and running. Aware that draconian reductions were promised, Secretary Ickes told Collier before he was sworn in to work out ways of reducing the Bureau’s budget, asking him to cut as much as 25 percent from the previous year’s budget, already well below the level reached in the first years of the Hoover administration. Collier replied with a long memorandum in which he asserted that a reduction as great as one-quarter could not be achieved except by “drastic economy,” which would be pursued only “under duress.” He wrote that some elements of his proposed program would result in savings— ending the allotment process, decentralizing the Washington office, hiring Indians at lower salaries, and reducing the number of boarding schools, for example. But he explained that others would require increased expenditures. He told Ickes that he planned to ask for a “revolving fund for Indian credit” and eliminate completely the “use of the dwindled Indian trust funds for administrative costs.” Moreover, he pleaded that “the necessary reorganizations can not be accomplished without some increase of professional staff.” 12 Collier’s reluctance to go along with the drastic cuts was ineffective; the basic Bureau appropriations for the first year of his administration were substantially below those of the previous year. In an address to the National Conference of Social Work in June 1933 Collier stated that the federal appropria-

Drafting the IR A Proposal

183

tion for that year had been reduced by more than $10 million, a cut of 39 percent. He reported that while nearly $6 million had been saved by reducing capital expenditures, there had still been an operating reduction of $4,553,546 in “personnel, administration, and institutional costs.” Roughly $1.5 million of this was due to the pay reduction, but this still left “$3,000,000 to be absorbed principally through abolition of positions and through institutional savings.” Moreover, there had been reductions of almost $1 million, as he had promised there would be, in the use of Indian trust funds for Bureau operations. Compounding these difficulties was Congress’s simultaneous request that the Bureau spend substantial amounts of new relief funds. In his address to the social workers Collier stated that the Bureau had received $5.8 million for “emergency reforestation camps”—the Bureau version of what became the Civilian Conservation Corps— even while cuts were being made elsewhere. Collier had asked that the bia administer this new program where Indians were involved, but this meant that a reduced staff had to take on more work. Collier remarked in this address: “We do not complain at all; ultimately we know that a permanently bettered Indian Service is going to be forged out through the economy blast, but we face extreme difficulties.” 13 Zimmerman has left a vivid picture of the first months of the new administration, emphasizing the exhilarating but stressful atmosphere under which the leaders were forced to operate. He reported “endless meetings, inside and outside of working hours. . . . There was zest and fun in those meetings, but also always a sense of urgency, of fighting time, of doing things now, before it should be too late; but there was always a feeling of accomplishment.” 14 He reports frequent consultations with Secretary Ickes, whose capacity for work was legendary and who put a high priority on keeping abreast of the exciting changes going on or planned within the Indian Bureau. Collier and Ickes acted in their first year in several areas where legislative approval was not needed or came easily. One step, signifying the importance attached to land issues, was effectively instituting a moratorium on allotments without waiting for congressional action. On August 12, 1933, Ickes, citing “existing economic conditions and the very poor market for Indian-owned restricted lands,” issued instructions to all superintendents that “until further notice . . . no more trust or restricted Indian lands, allotted or inherited, shall be offered for sale, nor certificates of competency, patents in fee, or removal of restrictions be submitted to the Indian Office for approval.” He provided for emergency exceptions but set up severe conditions for these and even applied the order to actions taken by superintendents but not yet forwarded to the office.15 On another front, Collier issued Bureau Circular 2970, entitled “Indian

184

A Fateful Time

Religious Freedom and Indian Culture,” on January 3, 1934. This circular stated the policy of the new administration: “No interference with Indian religious life or ceremonial expression will hereafter be tolerated. . . . The fullest constitutional liberty, in all matters affecting religion, conscience and culture, is insisted on for all Indians. In addition, an affirmative, appreciative attitude toward Indian cultural values is desired in the Indian Service.” Two weeks later another circular order “curtailed missionary activity at Indian boarding and day schools.” 16 A Pueblo land bill, introduced and passed in 1933, increased the monetary awards the Pueblos were to receive for lands the Pueblo Lands Board had decided they had lost irrevocably; this law contained a provision requiring Indian consent. It stated specifically that “the Secretary of the Interior shall not make any expenditures out of the pueblo funds resulting from the appropriations set forth herein, or prior appropriations for the same purpose, without first obtaining the approval of the governing authorities of the pueblo affected.” 17 These actions took time and further delayed preparation of major legislation in spite of its great importance to Collier. In the meantime, Collier participated in efforts to build support for major change among the persons and groups outside the government who were influential in matters of Indian policy. A conference called by the aclu, convened at the Cosmos Club in Washington on January 15, 1933, took as its starting point the 1932 package of bills introduced by the American Indian Defense Association, with help from the aclu. While the meeting did not attempt to commit specific organizations behind a reform program and no formal motions were made, the minutes of the meeting report wide agreement on the main outlines of a program that in effect combined the tribal alternative with administrative reform.18 The thirty-four conference participants included many of the main actors in Indian policy at the national level. Lewis Meriam chaired the meeting and Assistant Commissioner Scattergood attended, bringing with him several top Bureau officials—W. Carson Ryan Jr., Fred H. Daiker, John R. T. Reeves, Robert Lansdale, and John H. Holst. The Reverend G. E. E. Lindquist, a prominent missionary who was a member of the Board of Indian Commissioners and author of The Red Man in the United States, was present. The American Indian Defense Association was represented by Collier; his wife, Lucy; Major George P. Ahern (a forester); and Clifford McCarthy. The Indian Rights Association sent its two top officers, Matthew K. Sniffen and S. M. Brosius. The aclu was represented by Roger Baldwin, Nathan Margold, and Robert Gessner, secretary of the Indian Rights Committee. Gessner was the author of Massacre, a sensational exposé of the failures of Indian policy as revealed by the studies conducted by the Senate Committee on Indian Affairs. Gessner acted as secretary for the meeting.19 Also attending were Robert Marshall of the Forest Service,

Drafting the IR A Proposal

185

later to be one of Collier’s top aides; Alida Bowler of the Children’s Bureau, who became the first female Indian superintendent; Dr. C. Hart Merriam, of the Bureau of American Ethnology; Albert A. Grorud, chief counsel of the Senate committee; Judson King, of the National Popular Government League, who had given active support to the aida; and Fritz Gutheim, of the Brookings Institution. There were several Indians present—Wade and Ida Crawford, Gertrude and Captain Bonnin, Thomas L. Sloan, Antonio Luhan and Antonio Mirabal of Taos Pueblo, and a Mr. Hamilton, identified only as an Osage Indian. No members of either the Senate or House Committees on Indian Affairs attended. Roger Baldwin opened the meeting by asserting that it had been called “to discover how far the friends of the Indians are united in supporting the bills pending in Congress.” He stated that these bills embodied a “general policy . . . of reducing the power of the government and increasing Indian autonomy” and that the aclu “was committed to a program of cultural, political and economic rights for the Indian as against the Indian Bureau’s historic policy of assimilating the Indian to the white population, and of making him an individual property owner.” Gessner’s minutes of this meeting report that there was “general agreement” on the Collier bills, although he overestimated the extent of this consensus. The minutes state that Collier had “pointed out that the pending bills do not require agreement on fundamental issues” and that Margold had said that the “chief bills [were] merely permissive.” Nevertheless, the record does indicate substantial agreement, with amendments being proposed only in a few instances. The specific measures discussed were: 1. The allotment policy. When Lewis Meriam asked if anyone “cared to defend” the policy, only John Reeves of the Bureau did so, although he spoke only of its purpose, not of how it had operated. Collier stated that at least two-thirds of the Indians would “soon be landless” if the policy continued. There was no disagreement with Collier’s assessment, and at the end of the discussion on this issue, the minutes report that “all present agreed that the allotment system was a basic evil which should be corrected by later legislation. Mr. Margold announced that he was working on the draft of a bill.” However, if the question of how to overcome the effects of the allotment policy was talked about, the minutes do not report it. 2. The tribal council bill. The proposal made in 1932 was discussed in detail. The minutes report that “general agreement was expressed with the object of the bill despite reservations in regard to certain provisions.” A number of objections to the bill are noted. Scattergood repeated the view of his administration by saying that he “thought the present form of

186

A Fateful Time

organization adequate,” an unnamed participant objected that “professional politicians and troublemakers would control the councils” so that they “would not therefore be representative of the Indians as a whole,” and Mr. Gutheim said he “thought that the Indians on many reservations [were] not prepared for self-government.” Other objections were made to portions of the tribal council bill but not its general thrust. For example, Wade Crawford probably was replying to Scattergood’s remarks when he “cited the obstructions by the Indian Bureau of the present Klamath tribal council,” but he also said that the incorporation bill would meet the needs of the Klamath Tribe better than the tribal council bill. The two members from Taos said that they did not want “any change in their unique system.” Captain Bonnin said that “many Indian agents would manipulate tribal councils, but that they nevertheless were desirable,” and C. Hart Merriam said that a single form of council might not be appropriate for all reservations because many included members of more than one tribe. At the end of this discussion, Gessner reported agreement that “the conference approve[d] the proposed bill” with unspecified amendments to be prepared by Margold. 3. The bill to allow Indians to remove Bureau officials. Scattergood and W. Carson Ryan expressed some doubts about this bill, while “the Indians present spoke in support of” it. At the end of the discussion it was approved after unspecified amendments were agreed to; again, Margold was to draft these. 4. A bill to outlaw kidnaping of Indian children to compel attendance at boarding schools. W. Carson Ryan raised some minor objections to this bill, and after “several changes suggested in the bill by Dr. Ryan were agreed to . . . Mr. Margold said that he would redraft the bill for introduction later.” 5. Repeal of “espionage” statutes. These were several laws giving extraordinary and often extremely broad authority to Bureau officials, over both Indians and non-Indians on reservations. For example, one made it a crime to “alienate . . . or attempt . . . to alienate, the confidence of an Indian or Indians from the Government of the United States.” Another of these statutes authorized the commissioner of Indian Affairs to remove from any reservation any person who, “in the judgment of the commissioner,” was “detrimental to the peace and welfare of the Indians.” 20 Scattergood and Lansdale of the Bureau agreed that these laws were archaic and stated that they were not used, but said there was a “need of controlling undesirable persons on reservations by other provisions in law.” Consequently, “the conference agreed that inasmuch as the Indian

Drafting the IR A Proposal

187

Bureau officials oppose these acts they should be removed from the statute books. Other [unspecified] provisions should be adopted for meeting the problem of law and order.” The conference did not have time to talk about the incorporation bill or other legislative proposals. The minutes report that “all those present expressed satisfaction that the conference had been so helpful in arriving at common conclusions and in clearing up misunderstandings.” While the group had not reached complete consensus, the meeting did indicate greater agreement on policy changes than had been the case earlier. It is interesting that the bill to recognize and authorize tribal councils apparently had the least support among this important group. At a subsequent meeting on January 26 in the offices of the Indian Rights Association, representatives of the ira, the General Federation of Women’s Clubs, the National Association of Indian Affairs, and the American Indian Defense Association voted to support bia budget proposals and authorize Allan Harper, Collier’s successor at aida, to express this support to the Senate Appropriations Committee for all the groups as well as for the aclu. It also decided that “the representatives of the various organizations [would] immediately secure from their respective boards authorization for supporting all or as many as possible of the five points of the program.” The representatives agreed that when this authorization had been secured a “delegation” would be appointed “to wait upon Secretary of the Interior and the President urging strong executive administration support of the main points in the Indian legislative program.” 21 However, no legislative proposals to carry out this program were prepared for many months, and when they did appear, they differed in important respects from measures discussed at the Cosmos Club conference. Surprising though this was, Collier and Ickes were still not sure of the precise statutory changes needed but wanted to go beyond the 1932 program. In June 1933 the clerk of the House Committee on Indian Affairs wrote the Bureau asking for comment on several bills already before it. On June 10 Collier wrote in response to Chairman Edgar Howard of the House committee that the Bureau was not yet ready to discuss these bills. Referring specifically to a bill “authorizing the creation of Indian tribal councils” and another dealing with the bonding of Indian agents, Collier wrote that the “report will be postponed for the present, especially in view of the fact that final action is almost impossible at the present session of Congress. The legislation embodied in these two bills is of considerable importance and should be considered along with other items dealing with Indian administration not yet definitely formulated.” A

188

A Fateful Time

handwritten note at the bottom of this letter said he favored the bills in principle but that “I believe they can be given broader application in the complex of legislation to be drafted in the months ahead.” 22 In mid-June 1933 Collier addressed the National Conference of Social Work and listed a number of his legislative goals, saying that “the next session of Congress will be for the Indians and the Indian Service a fateful time.” He explained that the allotment act had to be amended “radically” and that “tribal status and the machinery for Indian organization must be defined. Civil rights must be extended—a budget of measures constituting an Indian bill of rights.” After listing a few other minor legislative goals, he stated that “the discretion of the Secretary of the Interior and of the Indian Commissioner must be curbed. The ultimate discretion of Congress itself—its plenary power over Indian affairs—must be curbed, if Congress can be so persuaded.” 23 It seems that he was still hoping for passage of a linked series of bills to solve all the problems of Indian policy at once, even the most basic ones. As late as December 21, 1933, Secretary Ickes was still refusing to be specific about the legislative program of the new Indian administration while outlining sweeping goals. In a letter to President Roosevelt on that date, Ickes wrote that “it is our duty to extend the human and constitutional rights to the Indians while preserving the responsibility of the United States for their welfare. There should be security of land tenure; a reasonable assistance in the use of their own natural resources to the end of self support; fullest access to educational opportunity; liberty of culture; and the freedom to organize for mutual aid and for the assertion of rights.” 24

Seeking Advice from Anthropologists Another indication that the legislative program was still far from being established is that in the late fall of 1933 the bia systematically sought advice on Indian policy from anthropologists around the country. On November 20 a questionnaire was mailed to many anthropologists, with a request that they provide information and specific advice about how the government should deal with the Native American societies they knew best, in ten specific areas of interest. A letter from Collier accompanying the questionnaire indicated that the focus of his legislative effort would be on the allotment policy but that the approaches to be taken to solving the problems created by this policy would affect many other areas. For example, he wrote, “we are anxious to build upon the potentialities of cooperative economic activity that exist today with the social organization of various Indian tribes and communities, with a

Drafting the IR A Proposal

189

view to enlarging the tribal ownership of land in lieu of the present system of individual allotments.” 25 Several of the questions dealt specifically with governance. One asked: “What is the formal pattern of tribal or community Government, and how far does this pattern follow that of earlier native government?” Other questions inquired how governing officials were chosen, how often governing bodies met, what powers the governing bodies exercised over specific policy areas, especially matters involving land, and the extent to which “the decisions of these bodies command the respect of the community.” A final question asked whether, in the anthropologist’s judgment, the governing bodies were “competent to deal with economic matters affecting the community,” with several areas of possible authority listed specifically. Many of the most prominent anthropologists in the country responded, sometimes at great length. The two most important founders of twentiethcentury American anthropology, Franz Boas of Columbia University and Alfred L. Kroeber of the University of California, sent replies and corresponded further with Collier. In his autobiography Collier wrote that Boas had “approved” his general approach to Indian policy in 1922 but had not lent “a helping hand” until 1938. He also wrote that Kroeber “gave the program [of the aida] his unconditional endorsement” in the 1920s and had joined his organization’s board but that only two other anthropologists had “helped the Indians in their struggles of the 1920s.” These remarks prefaced a statement that “the purposes of the Indian New Deal and its various implementations were not supplied by anthropologists.” 26 Other well-known members of this discipline, including both Margaret Mead and Ruth Benedict, did not reply to the questionnaire. Several of those who did reply were later involved with Indian affairs under the Collier administration. Scudder H. Mekeel headed the Anthropology Unit within the Bureau, and Oliver La Farge helped write the Hopi constitution as a consultant to the Bureau.27 It is difficult to tell how much impact the replies to this questionnaire had on the drafting of the ira proposal, but their influence appears to have been slight. Some replies were received in December 1933 and January 1934, when the initial drafting of the bill was going on, but others did not come in until April, long after the bill had been sent to Congress. The replies almost uniformly ignored the format of the questionnaire and so are difficult to summarize. Felix Cohen, the principal drafter of the bill that became the ira, wrote a note on January 2, 1934, in which he said that the letters from anthropologists had been helpful in his work. In returning to Ward Shepard the questionnaires he had received up to that time, Cohen wrote that “I have found

190

A Fateful Time

them extremely useful in our work thus far and I believe that when we are finally in a position to move ahead with our legislative program on the different Indian jurisdictions they will prove invaluable, and should be made the basis of follow-up inquiries.” He particularly cited the replies of Boas, Kroeber, La Farge, Alfred Bowers, Cora DuBois, Harold Colton, and John H. Swanton and wrote that “I think some suggestions are contained in these letters that will prove important in defining the policy of the Indian Office at next Sunday’s conference.” 28 The draft bill did differ in several respects from previous proposals by Collier, but it is impossible to identify any specific elements that came from the anthropologists. Collier and his administration made further efforts to keep in touch with the only academic discipline closely involved with actual Native American life, but the collaboration was difficult and did not last. A serious and consequential error at this stage was the failure to seek input directly from Indians and their governments. A social and economic survey by Bureau employees had been initiated in the spring of 1933, but there was no systematic effort to do anything similar on matters of governance or to find out what Indian leaders thought should be done. When an attempt was made to consult Indians (discussed below) it came too late to influence directly the content of the draft bill sent to Congress but had a major impact on the way the bill was received there. Another barrier to final approval of a legislative program was the question of whether to send up several major bills or consolidate most of them in one bill. The decision to try a single, comprehensive bill was not made until just before the bill went to Congress. In a January 17 letter to Senator Wheeler, chairman of the Senate Committee on Indian Affairs, Collier reported that “the bills which are delayed in getting into final shape are ones dealing with (a) revision of the allotment system along with provision for the acquisition of land for homeless Indians and (b) the bill authorizing and directing the Secretary of the Interior to issue charters granting to the tribes a limited amount of selfgovernment, which limited self-government would, under the proposal, be increased as the tribe in question showed its ability.” Although he reported that “we ought to have these bills ready in a week,” Collier wrote that the Bureau was slow in drafting them because of their complexity. “The general principles are clear as day but we are trying to draft them in such a fashion that the committees, when the hearings are held, will be able to trace down all the consequences of every word in the two bills. We think it will be time-saving to get the bills drawn properly before they are put in.” 29 The decision to send up a single bill was a momentous one, because the size and complexity of the proposal was a serious barrier to its acceptance by Congress and the Indians. A further indication of continuing uncertainty at a late date was a note from

Drafting the IR A Proposal

191

Collier to writer Vera Connolly, also on January 17. In this note he listed a number of items of proposed legislation, including “establishing Courts of Indian Affairs,” which was part of the bill as it went to Congress. In these two communications and in a memorandum to Secretary Ickes on January 25, Collier listed several other legislative goals, most of which ultimately were not included in the omnibus bill.30 His desire to redo completely all aspects of Indian statutory law was an important reason for delay in getting the most important issues to Congress. It seems that Collier thought that the unusual situation existing in 1933 – 1934 offered the possibility of enacting almost anything and might not occur again. During one of the Indian congresses held in the spring of 1934, he told his audience that conditions were unusually favorable for reforming Indian policy; there was a sympathetic president, a secretary of the Interior who had “fought for Indian rights, long before” he was named to this post, and a friendly secretary of Agriculture, Henry A. Wallace. Collier asserted that Congress was now on the side of the Indians and that “if there ever will be a time when the Indians of the United States can get what they need, now is the time. Now is the time when the government is doing big things in a generous way, making fundamental changes all through the country. Three or four years from now conditions may have changed. . . . It may prove a case of now or never.” 31 At another Indian conference, Collier told the Indians that “at the present time President Roosevelt controls both houses of Congress. . . . The bill we are going to discuss today is an administration measure. . . . The majority of the members of Congress do not pretend to understand the Indian question in detail at all. The majority of the members of Congress have nothing to gain or lose by any Indian legislation. In other words, if the administration had wanted to put this bill through quietly and quickly, understand they had the power and they have the power to do it.” 32 Collier went on to make the point that the administration did not want to enact the bill in this way but wished instead to consult with the Indians. These remarks brought a predictable outraged response from a key legislator when he heard about them. When Collier got back to Washington, Senator Elmer Thomas of Oklahoma, a member of the Indian Affairs Committee, attacked him for his remarks, because they implied that senators and representatives were merely rubber stamps for the administration.33 Collier was almost completely correct in this view, however (see chap. 8). The 73d Congress, elected in 1932, was a much more partisan Congress than most and there were large Democratic majorities in both houses. In roll-call votes during 1933 –1934 the Democratic members of the House of Representatives voted in favor of the Democratic position 87.6 percent of the time, while

192

A Fateful Time

88.5 percent of the Republicans opposed this position. In other words, this entire Congress enacted a partisan program initiated by President Roosevelt.34 Ordinarily policy changes in the national government are incremental and slow; it is easier to block than to pass legislation. This was the case in the previous Congresses when Collier had been seeking significant change. Even after a decade-long attack on Indian policy and the near-consensus (after the Meriam Report) among those most concerned with Indian policy outside the government that existing policy had failed, meaningful change was not possible until the critical election of 1932. The history of the Collier proposals after it was sent to Congress supports the conclusion that some measure embodying major changes in Indian policy would have been approved by the 73d Congress as long as it was endorsed by President Roosevelt. In his memoir Senator Wheeler stated that “when fdr first came into office and the depression was on, the only question when a bill came before a committee was: What does the President say? If he wanted it, the committee would approve the bill without even finding out what was in it. When I became chairman of the Commerce Committee [in 1935] I put a stop to that.” 35 The truth of Wheeler’s comment is well-known for the 100 Days in 1933, but it is less widely understood that Roosevelt’s extraordinary power over legislation continued through the second year of his administration. Passage of a major Indian reform bill was inevitable once Congress became convinced that it had Roosevelt’s endorsement. However, Collier was incorrect if he thought that the content of this bill could therefore be determined solely by the bia.

Drafting the Indian Reorganization Bill Collier’s delay in developing his reform program can be partly explained by the reasons discussed above. Additional delays occurred because Collier decided to bring in outside, “expert” assistance for drafting the bill. No doubt he had discovered that neither he nor Nathan Margold had the time to put together a massive legislative program. But his longtime commitment to the notion that “expert” opinion was far superior to lay opinion probably also played a role. At some time during summer or early fall of 1933 the decision was made to rely on experts with little previous involvement with Indian affairs to take the lead in preparing the legislative program. Margold, supported by Secretary Ickes, appointed two assistant solicitors whose first duties were to be bill drafting. The most important of the two was Felix S. Cohen. The son of philosopher Morris Cohen, Felix was a brilliant legal scholar. By the age of twenty-four, when he first began working on Indian

Drafting the IR A Proposal

193

policy, he had earned both a doctor of philosophy and a law degree and published a book and several articles on legal ethics. In spite of the fact that he had had no prior acquaintance with Indian law, he was brought to Washington by Margold and Ickes because he was “a brilliant legal draftsman,” in the words of his wife, Lucy Cohen, a young anthropologist who later came to Washington herself to help with getting the Indian Reorganization Act enacted. Felix was a friend of Margold and both were protégés of Felix Frankfurter; Cohen had been named after Frankfurter.36 The other new attorney was Melvin Siegel, whose background and later activities are unknown. Lucy Cohen says that both were hired initially for only one year and that Siegel stayed only a few months. Cohen and Siegel at first constituted a “legislative section” within the solicitor’s office, which dealt with other issues besides Indian affairs. The name of another attorney in the solicitor’s office, Charles Fahy, appears in the congressional hearings and the records of Indian congresses from time to time. Fahy had performed legal services for the American Indian Defense Association before Collier became commissioner. Commending his appointment to the solicitor’s office, Collier commented that he had conducted on behalf of Indians, usually without compensation, “a number of difficult and important litigations against the Government” and that his devotion to public service was “intense and unfailing.” 37 Cohen was appointed to a temporary position of assistant solicitor at an annual salary of $4,600 on October 19, 1933, but this was converted to a permanent position at the same salary on November 16, the day he went to work officially, with a note indicating that the change had been authorized by the president.38 The first major assignment for Cohen and Siegel was to visit several Indian reservations. From November 7 to December 4, 1933, they toured in Indian country to “study existing tribal organizations and agricultural cooperatives and [for] discussion with Indian tribes of problems of self-government and land ownership.” They first spent a week on the Fort Belknap Reservation in Montana, talked for an hour with anthropology professor Leonard Broomfield in Chicago about the Menominee Tribe, and planned to visit the Menominee and Sisseton Reservations but were unable to do so.39 By the end of November Cohen and Siegel were in Gallup, New Mexico. While we do not know their itinerary in the Southwest, Gallup is on the eastern edge of the Navajo Reservation and not far from the Hopi villages and most of the New Mexico Pueblos. At this point, however, they were suddenly recalled to Washington. Collier sent them a telegram on November 28, 1933, stating that he and Margold had agreed that “legislative drafting should be completed before January first.” He asked that they start back to Washington

194

A Fateful Time

“promptly,” although he agreed that they could visit Oklahoma for a “few days.” A letter to Collier from Walter Woehlke, who was then a field representative in Gallup, reported that Cohen and Siegel had left Gallup “reluctantly” for Oklahoma. Woehlke then went on to say that “as far as I could learn they had come to the conclusion that any legislative program is entirely dependent upon the kind of reconstructive land program that is worked out. They assert that whatever land policy and program are adopted, they can work out a legislative program to fit.” Woehlke also noted that they would learn from their trip to Oklahoma and that, because of the importance of the land program, they would have to “work in close harmony with” Ward Shepard, the Bureau’s leading expert on land policy. Shepard was a forestry expert. By 1933 he had been employed for seventeen years with the U.S. Forest Service, and for two years before joining the bia in September 1933 as a “specialist in land policies” had studied forest policy in a number of European countries. He was one of a small group of professional foresters, inspired by Gifford Pinchot, who had drafted a statement in 1930 calling for much stronger federal action to halt what they saw as destructive practices in the national forests that would lead to deforestation if not stopped. Among other members of this group were George P. Ahern, who had attended the 1933 Cosmos Club conference as a representative of Collier’s aida, and Robert Marshall, already one of Collier’s principal advisers.40 In his autobiography Collier stated a strong preference for extended discussion (what he called group thought) as a decision-making procedure. He wrote that the drafting of the Indian Reorganization Act had been done by the solicitor’s office (“particularly” Felix Cohen but also Margold) and that the “chief producers of ideas” for it within the Bureau had been Shepard, Woehlke, Marshall, and Allan G. Harper. Although Harper was not a Bureau employee at this time, he later joined the circle of top advisers to Collier within the agency.41 The Wheeler-Howard File in the National Archives Building was established as a separate collection from the Classified Files. Within this substantial amount of records are documents that give the broad outlines of the group thinking out of which developed the draft bill that went to Congress in early 1934. These indicate that Shepard, Cohen, and Siegel, all new outside experts, provided the principal ideas that went into this draft. It is impossible to tell from these documents how involved either Collier or Margold were, but it would be entirely out of character for Collier to let anything as important as a bill that he hoped would reform the major federal statutes on Indian policy move forward without his active knowledge and support. Nevertheless, the draft bill contains new approaches, and it seems these came chiefly from the newly hired experts.

Drafting the IR A Proposal

195

The bill drafting process appears to have begun in early December 1933; while the first identifiable written statements that are part of this effort date from late in that month, these strongly suggest prior group discussions, perhaps of some length. The bill appears to have been in nearly final form in early February but was being revised up to the day of its transmission to Congress, on February 12, 1934. A “Tentative Statement of Indian Land Policy” dated December 27 does not state its author, but someone, probably Collier, wrote “Shepard” on the upper right of the first page. From other evidence and its content, it is safe to assign this document to him.42 The Shepard document asserts that “the central problem of Indian administration is to make the Indians self-supporting citizens, with the rights and responsibilities of citizenship,” but that “Indian self-support has never been achieved, in spite of a century or more of Federal Indian administration.” It then asserts that subsistence agriculture, forestry, and livestock raising will provide the chief means of “self-support of the majority of Indians now and for some time to come” because “these are relatively simple, primitive occupations adapted to developing among the Indians habits of industry and responsibility to fit them for taking part in the larger economic and industrial life of the nation.” This has a patronizing tone and appears to accept the notion that Indians are “primitive” peoples. The notion of “self-support” as the primary focus of governmental policy also does not sound like anything Collier had previously said. Shepard then suggests that most Indians are not now self-supporting in these types of “rural industry” for two main reasons: “a. The land allotment system has directly and indirectly deprived the Indians of about 2 ⁄ 3 of their lands in the past 50 years and has made intelligent use of much of the rest of it impracticable . . . [and] b. The bulk of the Indians who still have land have not been able to create, nor have they been supplied with, the capital necessary to develop their land.” Given this analysis of the problem, the Shepard proposal concentrates on finding ways to halt the continuing loss of Indian lands, provide the Indians with new lands, and find sources of capital for development of their lands. Specifically, it focusses on halting allotment, bringing back under tribal control allotted lands that have not been lost to the Indians, and purchasing new lands for them. All of these goals except the provisions for capital were included in the draft bill sent to Congress. Shepard’s ideas bearing directly on self-government started with the presumption of the truth of the vacuum theory of Indian political life—that most tribal institutions had disappeared. He called for the establishment of “community or tribal ownership” of land as a substitute for such structures. Stating

196

A Fateful Time

that the allotment system had “disintegrated or destroyed native culture and tribal institutions which, properly used, should be a strong force for Indian advancement,” he urged that “in building up economic self-support for the Indians, it is important to reestablish a normal community life for them. This can best be done by the planned development of farming, grazing, and forest communities, where allotment and individual ownership have not gone so far as to make it difficult to bring the people together into communities.” He suggested that “20 or more families should be gathered into a small village, with a school and community house, gardens, water supply, etc., and from this center should use their individual allotments or tribal lands, as the case may be.” What Shepard had in mind was a program for establishing model communities, created by “expert” Bureau officials. A portion of the proposed bill did provide for the establishment of new Indian communities on lands that would be added to the Indian estate, but he was also thinking of creating new social structures within reservations. In general, there is nothing in his initial approach that shows an awareness of existing Native American structures or any sense that these should be recognized and strengthened. In May 1934, shortly before the Indian Reorganization Act had become law, Shepard told the National Conference of Social Work that the purpose of the bill was “a reversal of the Indian policy of the past,” which had been “a process of economic and moral destruction of the Indian.” He said that the allotment policy had deprived Indians of far more than half of their land and made effective use of much of the rest of it difficult. Allotment had been accompanied, he said, by “the doctrine of racial assimilation [by which] the Indian would be rapidly inducted into white culture by the simple expedient of suppressing his own.” He asserted that the new policy “does not seek to answer the problem of assimilation. Rather, it recognizes what is good in Indian culture, seeks to preserve and to build on it, as something which, the slow fruition of an imaginative and gifted race in close contact with nature for untold centuries, is inherently worth preserving, and shall not be deliberately destroyed.” This reiterates many of Collier’s themes and has quite a different orientation than Shepard’s initial memorandum for the draft bill. Presumably he had learned quite a bit in the ensuing months.43 In this speech Shepard said that the land policy of the bill was the key element in the administration’s program because it was designed to halt allotment, expand the Indian land base, and help Indians make a living through “small-scale diversified farming primarily for self-support, combined with grazing and forest operations.” He claimed that “the Wheeler-Howard bill seeks at once to let the Indians share in the management of their own lives and property and to curb the dictatorial powers of the Indian Bureau” so that gradually they could take over the functions of the Bureau. He asserted that

Drafting the IR A Proposal

197

the initial provisions of the draft bill providing for charters were not “essentially different” from the “simple provisions for tribal organization and incorporation” that by that time had replaced the charter provisions. The initial version of the charter idea came in a memorandum from Cohen and Siegel a day after the Shepard memorandum. This document, entitled “Memorandum to the Commissioner” and signed by both of them, gave a “draft-outline of a bill providing for the establishment of self-governing Indian communities,” although the principles were not yet in “legal language that may be necessary in the final bill.” Cohen and Siegel reported that their ideas had been discussed with Margold and that they had “generally received his approval.” Margold must have had some reservations, however, for they reported that “the Solicitor forcibly suggests . . . that more important than the draft of legislation is investigation and compilation of the evidence to support the proposals made.” They suggested a general study, “in the field,” of what had happened to Indians since the beginning of allotment and proposed that “the plan of investigation be discussed and outlined as soon as possible.” Obviously there was not time enough for such a study before introduction of the bill, but this suggestion probably was the origin of a study by historian D. S. Otis that was printed in the House hearings on the bill and published decades later as a separate book. The Otis study did not extend to the early 1930s and evidently appeared after the bia had decided on a bill to support. It also said very little about the impacts of allotment on Indian society, including governments, and therefore was presumably of little use in implementation of the ira.44 Like Shepard’s, the Cohen-Siegel approach began with the assumption that Indians were going to “remain on the land” and that the chief problem therefore was to provide “a decent standard of living within the community.” It also assumed that the central purpose of the land policy was to bring about the organization of Indians into communities, although there was no definition of this key term (as there was not in the draft bill). There was no suggestion of organization at the reservation level; in fact, it was proposed that some communities could be established among “scattered” Indians (such as some in Oklahoma or others “stranded in industrial centers as in California”). The problems of halting the further erosion of Indian land and restoring allotted lands to group ownership were discussed, because “no scheme of distribution will provide land where none exists.” It was stated that the government “must provide the necessary land and financial grants or credit, without which the lands can not be developed.” Therefore the bill should provide for “outright grants to defray the initial expenses of community organization and development,” as well as “continuing credits.” How to reassemble individually allotted lands under community control

198

A Fateful Time

was discussed at some length, in the context of an explicit acknowledgment that some Indians would wish to remain owners of individual property. Suggesting that the bill would be based on “voluntary transfer of individual lands to the community in exchange for an equal or a proportionate interest in the assets of the community,” it was stated that “in any community there will probably be an obstructionist element, impelled either by natural suspicion and conservatism, or by the ideals of rugged individualism induced by the Indian program of the last half century, to fight any program of corporate organization and cooperative endeavor.” Since all “Indian-owned lands” would need to be brought under the control of the community for the policy to work, a number of ways of providing “inducements” to individuals to turn over lands to communities were outlined, ending with, “as last resources,” ways of bringing about that result “without the consent of the individual Indian owner.” The memorandum discussed the legality and constitutionality of compelling Indians to give up individual property interests and concluded that there were legally possible ways of accomplishing this end. Mentioned were a 1910 statute and federal court decisions that seemed to sustain some proposed means. The memorandum also discussed another issue of great significance that does not appear in the draft bill or the congressional testimony supporting it. The document noted the “present unequal distribution of rights to land” and stated, “Plainly, such inequality must be eliminated as quickly as possible, if every member of the community is to be granted some opportunity to wrest a livelihood from the limited resources of the community.” However, Cohen and Siegel added that stating such an objective “is perhaps politically inadvisable and at all events legally unnecessary,” since the Indian communities would have to be won over “by reasoning and bargaining, no matter what the statute provides,” to accomplish any reduction of Indian inequality. The question of the source of authority for the Indian communities was not discussed, but there was comment on the need to restrain the governments of such communities to accomplish “two main purposes: (a) the preservation of the resources of the community and (b) protection of individuals against factional discrimination, the arrogance of petty officials and the domination of property interests.” In order to enforce restrictions that could achieve these ends, both a “supervisory Board,” an idea explicitly borrowed from the Klamath incorporation bills, and the creation of a new federal court were discussed. A Federal Court of Indian Affairs was proposed partly to fill a perceived jurisdictional gap between federal and state laws. However, the possibility was entertained that judicial responsibility in small matters might also be given to U.S. commissioners (who already could be appointed in some cases for other

Drafting the IR A Proposal

199

purposes by federal district judges) or “the local court of the Indian community itself.” This memorandum is helpful in understanding how Cohen and Siegel viewed the degree of choice to be exercised by Indians themselves in establishing the new communities. First, the provisions of the proposed legislation were not to be imposed on Indians. They stated clearly, “It will be noted that all the provisions of the contemplated statute are permissive, being entirely inoperative except where the Indian Community and the Indian Office agree upon a fundamental system of government and land tenure, but establishing coercive powers derivative from such agreement” (emphasis in original). A second principle was flexibility; policy would be tailored to fit each Indian community through a charter. It was suggested that “such charter will be drawn up by the Indian Office, that the Indian community will then draw up a constitution and set of ordinances, in accordance with such charter and otherwise satisfactory to the Indian Office, and that, when the charter is finally accepted by the community and the constitution and ordinances are approved by the Indian Office, a formal ceremonial promulgation of charter, constitution and ordinances should take place.” The charter, it was suggested, should contain “a broad range of powers . . . and an equally broad range of restrictions” to be exercised by each community, along with methods to enforce restrictions and “techniques for the effectuation of community organization.” It was stated that probably no community would choose to exercise all the powers to be specified in the bill and that charters should be limited to two or three years so that ultimately they could be based on “actual experience.” Such experience, they said, might provide the basis for amendment of the statute in the future. The obvious intent was to conduct experiments in Indian communitybuilding, with Indian consent, to seek new organizational forms for dealing with economic questions. The memorandum declared that “it is expected that the program of selfgovernment will be applied only where it is desired by the Indians and that the charter will take effect only upon acceptance by the Indians (preferably by a two-thirds vote).” Further, the establishing of the communities was to depend upon the voluntary return to the community of individual lands. Clearly, Cohen and Siegel had no notion of a model structure to fit all communities. Indeed, their document stated that “in no community will all the provisions of this statute be invoked.” The memorandum does not discuss incorporation. Nothing more was said about this important idea, an omission that indicates one of the problems of bringing in new people who might not know the previous terms of discourse. The “ultimate goal” of the program to be outlined in a draft bill was said to

200

A Fateful Time

be “the removal of supervision in questions involving administrative discretion,” leading to “the gradual emancipation of the Indian Communities.” Along with this goal was the objective of decentralization of the Bureau of Indian Affairs. The memorandum stated that this was “plainly necessary not only for administrative reasons but for the achievement of ultimate selfgovernment.” It was also stated that a three-pronged “educational program” was needed, to educate Indians, Bureau personnel, and the general public about “the demands of Indians, expressed through petition or otherwise, for a ‘new deal’” and about the details of the new program. Cohen and Siegel also proposed taking administrative action to move toward the goals of the new policy. They suggested that the bia “test out the political capacities and encourage the political aspirations of Indian communities by immediately granting them some power of control over the conduct of agency affairs,” particularly where tribal ownership of land still existed. A third major document (called herein simply Document A), has no stated author but obviously was written by an attorney. Cohen may have been its author; on January 22, 1934, he wrote professor Herbert Wechsler of Columbia Law School to thank him for advice on an Indian court bill and remarked that he had accepted “nearly all of [Wechsler’s suggestions] in the enclosed draft.” 45 Its title, “The Problem of Law and Order on Indian Reservations in Relation to the Wheeler-Howard Bill,” indicates it was written after introduction of the draft bill. On the assumption that its placement with the other planning documents tells us that its ideas reflect the views of the bill drafters, it will be reviewed briefly. The starting point of Document A is the theory underlying Ray Brown’s two studies of Indian law (see chap. 4): that Indian governments were inoperative in most Native American societies. Stating that Worcester v. Georgia was still good law, the paper says that “Indian law today is based on the legal doctrine that a restricted Indian is governed by his tribe. But in fact, over the larger part of the Indian country tribal government has broken down. No corresponding extension of the jurisdiction and judicial machinery of State or Nation has ever been made to fill this gap. The result is a condition approximating legalized anarchy, controlled in practice only by the unreviewable disciplinary powers of the Indian Office.” Neither “blanket extensions” of state laws nor a similar expansion of national law was proposed to deal with this perceived vacuum. Instead, new “machinery” of justice was suggested. While the proposed new national court was one of the three means for dealing with this problem, the other two were methods congruent with Indian self-government. First, Document A suggested that the reorganization bill let Indians partially fill the vacuum by creating their own law. It stated that the bill estab-

Drafting the IR A Proposal

201

lishes “a system of laws based upon the consent of the governed. It does this through the mechanism of municipal or quasi-municipal charters issued by the Secretary of the Interior to Indian tribes and ratified by the Indians concerned. Such charters may provide for the establishment of regular ordinances governing matters which are now subject only to administrative fiat.” It was explained that the Indian communities could adopt state laws or establish their own and that the degree of ordinance-making authority actually exercised by the governments of such societies would vary widely. Another aspect of Indian self-government could be local courts, established through the charters, to exercise authority “now vested in the Indian tribes” or the secretary of the Interior by existing law. The document stated that the bill’s only restriction on such courts would be to limit punishments exacted by them. The main attention of Document A, however, was given to the proposed new national court proposed in the Cohen-Siegel memorandum. It was suggested that the new court could, on the basis of subsequent legislation, be given “powers of review of administrative actions” as another way to curb Bureau authority. The court would also have an educational function for Indians, since they could serve on juries and observe the judicial process in action. Most important, however, is that “the Indians will feel that they are participants in the administration of justice, and this alone can instill a public sentiment against law-breaking.” In explaining this point, it was suggested that Indian attitudes toward the law of the Unites States were “often very much like” what non-Indian Americans would feel “if our country were to come under the domination of some foreign nation of alien race, and our conduct subjected to the laws and regulations of a far-off sovereign and to a strange judicial procedure. . . . This is a basic factor in the whole problem of Indian law and order. It necessitates that any solution of that problem must be based upon the active cooperation and participation of the Indians concerned.” The rest of Document A argues that legislatively established courts are constitutional, a point Collier had disputed in 1926. A second planning document whose author is unknown (called herein Document B) is also comprehensive, dealing with several aspects of a legislative proposal. Headed simply “Legislative Program,” it has no date. Its civil liberties orientation suggests it was contributed by someone from the aclu or by Allan Harper, who had been an official of the aclu in Philadelphia before taking over Collier’s position in the aida. It too begins with the proposal to enlarge the Indian land base, but goes on to state other goals. The bill, it says, should be “for increased tribal constitutional rights for all Indians, instead of the denial of those rights as heretofore,” for making Bureau employ-

202

A Fateful Time

ees “accountable” to Indians, and for gradual replacement of non-Indian with Indian employees. Under the heading of “Individual and Tribal Rights,” Document B states these principles: There must be passed a bill of rights for Indians, granting them a court review over the actions affecting their persons and property, whether by the Indian Bureau or by Congress. In other words, due process of law subject to review by the courts, must be guaranteed the Indians. They must be allowed to make contracts and to enforce them. They must be allowed to employ lawyers and to pay these lawyers out of their tribal assets. They must be given a review by Federal courts in all cases where they are fined or imprisoned by local superintendents of the Indian Bureau. The Indian must be allowed to make his will freely. . . . Only a court should nullify an Indian’s will. On the crucial issue of self-government, Document B indicates that the methods of organization might vary, according to the condition and desires of various groups of Indians. “The extension of constitutional rights is to be affirmative as well as negative. The basic need of the Indians is to be allowed and helped to organize. This organization might take the form of a one-manone-vote corporation. It might take the form of the ancient tribal organization. These organizations should be fostered by the government; they should have definite statutory existence and authority; and the Indian organization or corporation should be the guardian over the individual Indian.” Document B also states clearly the long-range goal of devolving national functions to Indian governments while retaining the national government’s trust responsibility. It says that “the Federal guardianship should be changed from a guardianship over the individual Indian to a guardianship over the Indian body corporate. There is no incompatibility between the grant of full civil and constitutional rights to Indians and the maintenance and improvement of Federal responsibility and guardianship.” Finally, this document mentions dismantling the boarding schools, contracting with states to provide some services to Indians, and improving budgeting and accounting practices, items that were not included in the draft bill or the ira but that were pursued by the early Collier administration through other means. These drafts were the subject of extensive group discussions, which have not been recorded. Only one document commenting directly on them has an identifiable author. Robert Marshall, Collier’s chief of Forestry and a member of his inner circle, commented in an undated memorandum on elements of

Drafting the IR A Proposal

203

three drafts—those by Shepard, Cohen and Siegel, and James Stewart (which might be either Document A or Document B). Marshall had a short but impressive career in the federal government during the New Deal. He was a son of attorney Louis Marshall, one of the volunteers who had assisted Collier and the American Indian Defense Association in the previous decade. Louis Marshall was a successful attorney in private practice but also a strong advocate of civil liberties and a conservationist. When he died in 1929 he left enough money to his four children to make each “financially independent.” 46 Bob Marshall, largely because of a passion for exploring and climbing mountains in unpopulated areas, became a forester, earning a doctorate in that field. He worked for several years for the Forest Service and was one of the group of foresters who, on the eve of the New Deal, worked for greater public controls over the national forests. Later, he was the principal founder of the Wilderness Society and its financial supporter for a number of years. He moved to Washington in 1932 and began employment with the Bureau of Indian Affairs as director of Forestry in August 1933. He was also a strong advocate of civil liberties and a democratic socialist. When he died suddenly at the age of thirty-nine, it was discovered that his will created several trusts, one of which was to advance the civil liberties of American Indians.47 Marshall’s critique of Cohen and Siegel’s proposal to create supervisory boards questioned it on the ground that such boards would “really have the power over tribal affairs. This is just what is not wanted with self-government.” He also suggested that the boards would add a new layer of bureaucracy and be expensive. He concluded by saying that Bureau inspectors could accomplish the needed supervision with “much less of an interference in the Indians’ conduct of their own affairs.” On the other hand, he thought the proposal for a new national court a “splendid” idea. Marshall also thought that “some provision should be made to the effect that the liberties guaranteed in the bill of rights of the U.S. Constitution should be operative within the tribal jurisdiction,” unless “these apply without special mention because of the quasi-federal nature of the reservations.” He also thought that some provision for the payment of state and local taxes by Indian governments (or some “substitute” for such payments) was necessary, although the national government could “subsidize” such payments. Another of Marshall’s points was that a provision in the Cohen-Siegel proposal to allow the governments of Indian communities full legal title to lands formerly held in trust by the United States was “exceedingly dangerous” because it could lead to loss of lands, if there was a “little poor business” by an Indian government, which “we have got to expect . . . at first with many tribes.” He also thought that listing forty-four separate powers that Indian

204

A Fateful Time

governments might exercise would be a mistake. While he realized that there was no intention to require tribes to accept all of these powers, he thought some Indians might get the impression that they were expected to exercise all of them. After the passage of the Indian Reorganization Act, Marshall, with characteristic vigor, wrote that the Collier administration rejected both the “official, incorporated, gold-braided government fantasy . . . that the salvation of the Indians lay in an individualism more extreme than any which has ever been practiced anywhere in the history of the human race” and the “unofficial, sentimental, wishful private fantasy of many well-meaning admirers of the storybook Indian” that he should be restored to “the imagined grandeur of his existence prior to 1492.” The latter was impossible, he said, because “the land area has been decimated, the resources are depleted, the people have vastly altered.” Since this was the case, the objective of the government should be to restore to the Indians “enough land to make a living” and assistance with capital and expert advice to develop this land through “their own government” but with a temporary federal “check” to protect the Indians from mistakes and from those “who would like to steal their reservations.” 48 Several smaller documents that deal with the early stages of the bill-drafting process are in this collection, but it has not been possible to fit them into the stages of the process or determine their authors. It is noteworthy that none of the documents examined showed clear signs of emanating from either Collier or Margold. No doubt both men had expected to play decisive roles in the preparation of legislative proposals, but it appears that time constraints and possibly other factors gave the initiative instead to the experts hired by the Bureau for this purpose. Although what we know of the bill-drafting process is incomplete, several important conclusions can be drawn about it. First, despite the package of bills he had developed in 1932 and the endorsement, however imperfect, of this package by the 1933 Cosmos Club conference, Collier did not assume that he already knew how national statutory law should be changed to accomplish his sweeping objectives. Not only the fact that his time was taken up by other matters but also his uncertainty about what he wished Congress to do led to delays in developing legislation. Second, his predilection for “expert” advice led him to bring in outside specialists, in the fall of 1933, who had had little experience with Indian affairs. The result was a series of proposals ignoring some of the ideas developed over several years in cooperation with Indians in favor of new ideas that had not previously been part of the debate over this area of policy. Shepard’s ideas on land policy and the idea of issuing charters to Native American societies that

Drafting the IR A Proposal

205

wanted new or expanded governments are examples of the results of this new approach. Third, the situation created by the operation of the allotment system, plus allied issues regarding the use and preservation of Indian lands, not only seemed to Collier to be the most important issues in Indian policy but also presented problems in devising effective policy. Presumably the latter difficulty was a major reason for bringing outside experts to the discussion. Fourth, the special circumstances in the first two years of the Roosevelt administration convinced Collier that he had a good chance to get through any package he and his associates could develop. This encouraged him to aim at the utopian goal of seeking legislation transforming federal Indian policy in every area at one time. Fifth, because of the importance of the allotment question, the questions revolving around Indian governance do not seem to have been the centerpiece of the planning effort, which might have been expected from Collier’s views combined with the events of the previous two years. Nevertheless, it is possible to say several things about the assumptions Collier and his advisers made about this area of policy. A key underlying assumption of the drafters was the vacuum theory. The allotment program and other aspects of governmental policy over several decades, which effectively were part of the forced assimilation ideology dominating Indian policy since 1887, were thought to have destroyed most Indian governments and even a good deal of Indian social structure. Collier certainly knew that Native American societies already had self-governing authority, as recognized by the courts, but the emphasis was on creating new governments or cooperative organizations rather than on supporting or strengthening existing governments. Also, the call for a new court system came from the notion that in its absence Indian societies faced anarchic conditions. Another underlying theme was the necessity of ending the “absolutism” of the Bureau (Collier’s earlier term) while maintaining the trust relationship between the federal government and Indian societies (discussed at the time as the guardianship policy). An important basis of the new proposed policy was the notion that these two goals could be combined by transferring control of Bureau functions to Indian societies without ending the guardianship relationship. Letting Indian governments take over functions performed by the national government would clearly give them more authority, but other aspects of the question of Indian governance raise questions. Shepard’s notion that federal law should encourage the formation of Indian communities, some at least of which could comprise portions of reservations, raised serious questions,

206

A Fateful Time

apparently not perceived among the bill drafters, about the relationship of these governments with the overall reservation governments. The potential for seriously dividing Indian societies (many of which were already divided on other grounds) was clearly implicit in these proposals. Another issue is the question of whether the new organizations to be encouraged by legislation would have as their primary source of authority their existing powers, as recognized by the courts, or primarily those assigned to them by the secretary of the Interior. Collier knew that Native American governments exerted real aboriginal authority, even though Congress had limited this authority. But the concern of the bill drafters seemed to be how to add authority to Indian governments, which suggested the notion that the federal government, not residual aboriginal authority, would be the source of these new powers. Again, it does not seem that the bill drafters saw the possible danger to Native American governance from confusion on this score. Part of the reason for emphasizing new authorities came from the fact that Collier and his associates were seeking ways to allow communal development of land and other resources. If allotment were ended and various means of increasing the Indian land base succeeded, the problem many societies would face would be how to use these resources to overcome poverty and raise standards of living. Collier had evidently concluded from the incorporation debate of several years earlier that democratically based corporate structures— cooperatives—were the key to this problem but that such organizations would require the addition of modern business techniques to the existing panoply of Indian authority. One question about which intentions seem clear was that enlarging governmental authority through statutory means was needed only for those societies wanting to move in this direction. Several explicit statements to this effect, as well as the certain implication of the suggested techniques to be embodied in legislation, establish that Indian societies were to have the choice of whether to seek expanded authority and, if they did, what powers to seek. No one had any notion of imposing organization on any society that did not want it nor of imposing a common structure on societies that opted to move in this direction. Finally, seemingly minor but actually very important questions—whether Indian organizations should pay state and local taxes, the suggestion that group-owned lands should be held in fee title status rather than under trust status, and whether the Bill of Rights of the U.S. Constitution should apply to Native American governments, for example—were raised during the drafting process but not resolved. One can safely conclude that the notions that it was desirable and possible to solve all Indian problems by statute at one time and that experts could be relied on to come up with perfect legislative proposals resting on this fact are

Drafting the IR A Proposal

207

highly dubious. Collier was not one who believed that it was impossible to “reach the millennium in the biennium,” as a former attorney general of California once put it.

Final Stages of Bill Drafting In a memorandum to Collier on January 17, 1934, Felix Cohen reported that “drafts of the proposed legislation on land tenure and self-government are now ready” but that he thought it would be desirable to go over details for perhaps two more weeks. Evidently it had not been decided firmly to introduce a single bill. On January 22, Cohen sent the commissioner drafts of two bills, on land issues and “self-government.” 49 The latter bill contained the provisions for creating an Indian court that ultimately became Title IV of the bill as introduced. In other respects it was based on the draft described earlier, but with some changes. The supervisory board idea was dropped in favor of assigning oversight functions to the commissioner, although without a specific mechanism specified for carrying out this responsibility. The new draft also combined decentralization of the Bureau with the gradual process of turning over Bureau functions to Native American governments. The most important innovation, however, was the appearance of a statement on Indian law that acknowledged the principle that Indian governments already possessed governing authority. Section 6 of this draft declared that “an Indian community chartered under this Act shall be recognized as successor to all existing political powers heretofore exercised over the members of such community by a tribal, or another native political organization comprised within the said community, except in so far as such powers may be restricted by the charter.” Just three days later, Siegel transmitted another “Draft of Indian SelfGovernment Bill” to Collier, “in response to a rush order.” The only significant difference from the January 22 version is that this draft spelled out the economic rights of members who would choose to leave Indian communities. A single draft bill to Senator Wheeler and Representative Howard—the Senate and House chairs of the Indian Affairs Committees—is dated February 6. The letter accompanying this bill stated that it was “the inclusive measure dealing with land and self-government for Indians. It represents the collective work of the Indian Office and the Solicitor’s staff across many weeks. We are most anxious to have the bill introduced properly in order to get it out to the Indians and to prepare for hearings.” Collier assumed that this bill and its companion letter would be taken to the

208

A Fateful Time

Hill on February 7, because he sent the draft to Zimmerman on that date with a note stating that he had to leave for Oklahoma. Collier wrote that he and A. C. Monahan (one of two assistants to the commissioner) had gone over it “for verbal correction. No substantial changes made.” In fact, Collier and Zimmerman “rode to the Capitol together on February 12, 1934, making a few lastminute corrections in the bill on the way.” 50 The departmental report, which interpreted and explained the bill, was not ready by February 12, as indicated by notes to Collier from Cohen on February 13 and 16. The date of the report printed in the congressional hearings is February 19. In other words, in spite of the long delay in introducing the bill and the “many weeks” that had gone into preparing it, an argument can be made that it was submitted in undue haste, before there was time for significant consultation on the complex measure or even time to consider in depth the proposals, many of which were new. Not all of Collier’s advisers were unaware of the dangers such a procedure could entail. An undated memorandum from Walter Woehlke on the land provisions of the draft bill concluded that this title was too long and complicated. He wrote: “God help the poor mariner who is compelled to ride the conflicting, capricious winds of this Title in an effort to explain the precise operation of the proposed legislation.” To make it “intelligible,” he suggested reducing it to a simple expression of intent.51 This is almost what happened to the bill in Congress, although not for several months. Later in the spring of 1934, after it was evident that the bill was in trouble in Congress, Collier recognized that its length and complexity were part of the reason for this response. In reply to a letter from C. Hart Merriam, he wrote: “You are right in saying that the bill is long, complicated, and technical. That is partly due to the fact that the situation itself is exceedingly complicated and we were confronted with the necessity of choosing between a few blanket formulas or setting up in the bill procedures that would recognize widely variable circumstances that must be met. But the complexity is also in part due to the speed with which the bill had to be drawn.” 52 Much of the complexity, however, was a result of the decision to incorporate most of the reform agenda in a single bill. Collier says in his autobiography that Shepard first suggested an omnibus bill. Collier wrote that he had accepted this suggestion because he thought that replacing most Indian law with a single statute would have “a massive and dramatic nature, commanding the imagination of Indians and Congressmen alike.” 53 The problem became that it also increased the difficulty of securing approval for the reforms he thought were necessary.

Drafting the IR A Proposal

209

Building Support Even while the bill was being drafted, the Collier leadership group was attempting to maintain support for the reform effort among anthropologists and the “friends of the Indians.” In December 1933 Collier had attended the annual meeting of the American Anthropological Association and requested that members of this discipline work with the administration. Also in December, he held informal talks with representatives of several groups concerned with Indian affairs, which led to a new Cosmos Club conference. This time the invitations were sent out by M. K. Sniffen of the Indian Rights Association, on behalf of his group, the American Indian Defense Association, the National Association on Indian Affairs (headed by Oliver La Farge), and the aclu.54 The conference was held on January 7, 1934, with at least forty-eight persons in attendance.55 These included Collier, Zimmerman, and most of the other top Bureau officials, plus Margold, Cohen, Siegel, and Fahy. Former Assistant Commissioner Scattergood also came, and of course there were leaders of the groups sponsoring the meeting. The aclu was represented by Robert Gessner, who again acted as secretary and took minutes. Prominent individuals included Lewis Meriam, Albert Grorud, Anna Wilmarth Ickes, and the wife of W. Carson Ryan Jr. Apparently the only Indians present were Captain and Gertrude Bonnin and Princess Chinquilla of the Ojisto Council, an offshoot of the defunct American Indian Association. Meriam was elected chair of the gathering and “it was unanimously agreed that opinions formulated or expressed by the conference would not bind the organizations represented and that all votes of agreement, submitted to and acted upon, by the conference would be subject to this reservation.” At this stage the principal purpose of the conference was to solicit support for proposals already well along toward final drafting rather than to encourage new ideas. The conference was not willing to give endorsement to the entire Bureau package but accepted the principal components as it understood them, although it declined to approve several minor bills presented to it. The conference did support the outline of the self-government provisions of the draft bill. The minutes indicate that about three hours were spent discussing the major elements of this proposal. All the major parts of it were endorsed, usually by unanimous votes, although sometimes minor amendments were requested. Gessner’s minutes indicate conference support for these elements dealing with Indian governance: The right of all Indians to organize should be specifically affirmed by statute, and this right should not be conditioned by the consent of the

210

A Fateful Time

Secretary of the Interior. The powers of government now exercized [sic] over the Indian population through the Office of Indian Affairs shall be gradually transferred to organized Indian communities, subject only to such necessary restrictions as may be required to assure the continuance of health, educational and welfare services now furnished by the Federal Government; and to protect the rights of minorities within the community until such time as the Indian community shows itself capable of administering its own government. The Secretary of the Interior should have the power and duty to recognize and establish Indian communities and endow them with any or all of the powers of existing communities of like size and purpose . . . with the understanding that the above process be made by progressive stages; and that in granting or withholding said privileges, the granting authority give consideration to the present varying capacities of the tribes. The Indian community should have the power, subject to suitable restrictions, to recall undesirable employes [sic] of the Indian Service. The Indian community, as above created, may be endowed with power to administer both tribal and federal funds expended on behalf of the tribe and further the power to select, among duly authorized purposes for which money has been appropriated, the projects for which moneys shall be expended. For the better regulation of relations between the Indian community and the surrounding population, special agencies for administration of justice, including special courts and special law officers, should be established, their function being to deal with those matters which cannot be presently delegated to local Indian Judges responsible to the Indian community. The Cosmos Club conference also endorsed a number of other administration proposals, which did not become part of the Indian Reorganization Act. These include the Swing-Johnson plan to transfer some Bureau functions to states and the repeal of the espionage statutes.

Consulting Indians In spite of his intense devotion to the welfare of Native American societies, his past work with several Indian governments, and his unusually strong commitment to what he saw as Indians’ vital cultural values, Collier did not try to determine Indian views on revision of Indian statutes while the bill drafting process was going on. Although he had kept in touch with anthropologists

Drafting the IR A Proposal

211

and members of non-Indian groups outside government, not until three weeks before the bill went to Congress did he make any effort to find out what Indians thought. Cohen was the first to suggest that Indians should be consulted. On January 17 he sent Collier a two-page memorandum about a revision of the circular letter that had been sent out to the friends of the Indians two weeks earlier.56 Cohen strongly recommended that a similar circular be sent to Indians, as well as superintendents, saying, “I find myself almost alone in believing that it is very important to send out some such statement to the field in the shortest order.” Cohen’s principal argument for contacting Indians was that it was important to build Indian support for the plans already devised. My very limited experience on several reservations last November [Cohen wrote] revealed a large degree of misaprehension [sic] in the field, on the part of employees and Indians, with respect to the program of the present Administration. I believe that inaccurate second-hand reports of policy are going to throw needless obstructions in the path of any proposed legislation. I am advised by Mr. Poole [of the Bureau], who has spoken to several members of Congress, that without considerable Indian support our legislative program is not likely to meet a favorable reception in Congress. I think therefore that an authoritative statement of policy in terms likely to awaken sympathetic understanding among those most directly concerned with this policy is vital at the present time, before the legislative program is officially launched. However, Cohen also indicated that contacting Indians and field employees might produce some useful amendments to the bill. Furthermore, I believe that counsel from the field will be invaluable in shaping or modifying many of the details of our proposed legislation. If the attached letter is sent out this week some response should be available before Hearings in Congress on the proposed legislation are commenced, and perhaps even before our bills are finally submitted to Congress. It will then be possible to make necessary modifications in our proposed bills before opponents of the legislation have had a chance to make capital of our minor mistakes. Finally, Cohen suggested that contact with Indians would be very helpful when the time came to implement “our plans concerning land tenure and selfgovernment”; he thought the process could be speeded up if there was advance knowledge of the administration’s program. Cohen also reported that, because it might take another two weeks to “work

212

A Fateful Time

over many of the details” of the proposed legislation, a notice to the field could not be sent out with copies of the bill unless there was further delay in its introduction, which he thought unwise. He suggested that “a concise statement of administrative policy and a request for discussion and counsel upon the problems which this program raises are presently in order” and in any case would be more appropriate than the detailed, technical bill. Collier approved this suggestion; only three days later an “Indian Selfgovernment” circular was issued from the Bureau to “Superintendents, Tribal Councils and Individual Indians,” with a request that “meetings, conventions, or councils of the Indians to discuss this program . . . be held in the very near future.” 57 Reports based on the outcome of these meetings were due in Washington by February 15, a little more than three weeks later. The “Self-government” circular did not say that a voluminous Indian reorganization bill was almost ready for introduction. On the contrary, its statement that “this study is undertaken for the purpose of determining what legislation is necessary to effect the largest benefits in policy and administrative methods” suggested that the options for reform legislative proposals were much more wide open than was the case. The circular was also “concise” only in comparison with the draft bill; it required twelve single-spaced pages to explain the administration’s approach to Indian reform. The land policies and “the formulation of plans for Indian selfgovernment and organized self-help” were given prominence, although the need for claims legislation, the proposed Indian court, and other matters were mentioned. The two “fundamental principles” of the administration were stated thus: “1. To establish Indian self-government and to promote a healthy and satisfactory community life. 2. To preserve and develop Indian lands in Indian ownership and to provide the opportunity of economic livelihood for all who choose to remain within the Indian community.” The circular explained the basic idea of issuing charters: “It is . . . suggested that under suitable legislation Indian communities, wherever they desire increased powers of self-government and are equipped by tradition, experience or education to exercise such powers, should be organized and chartered as municipal corporations, and that such municipal corporations should be entrusted with powers and responsibilities similar to those customarily exercised by a village or county government.” Later it was suggested that constitutions might be drawn up by the Indians, containing such matters as the designation of officers, the determination of their method of election and powers, the setting of rules for membership in the community, and the making of legislative decisions for the community. However, there was no definition of community and insufficient supporting information to give Indians a clear in-

Drafting the IR A Proposal

213

dication that the bill drafters were thinking not just of reservations but also of groups within reservations. The intent to give the officers of an Indian community the right to control Bureau employees was clearly stated, including the right to recall them if necessary. The circular stated that “powers of government now exercised over the Indians by employees of the Indian Bureau should be gradually transferred to the chartered Indian community. . . . While Federal employees continue to exercise governmental powers over Indians they should be responsible to the chartered Indian community.” The goal of gradually turning over control of national funds on the reservations to the Indian communities was also made explicit. However, a fundamental tenet of the tribal alternative—to continue the trust relationship—was not stated clearly. While the circular mentioned plans to continue national appropriations as Indian communities took over more and more functions, it was not clear about long-range goals, and a statement was included that might well have been read by many Indians as a move toward termination. In discussing “charity” for the needy and the provision of “public improvements,” the circular suggested that “so long as the economic necessity continues, the Federal Government will, in all probability, continue to provide rations for indigent old Indians. But if the industrial program of the administration succeeds in bringing greater prosperity to the Indians, the Community must be prepared to assume gradually the obligation of providing for charity.” Collier and the other Bureau leaders probably assumed that the “Selfgovernment” circular would bring forth statements of support from Indians around the country for the reorganization bill. Instead, it produced bewilderment, doubt, and opposition; few Indian groups expressed support for the ideas stated in it. The largest number of replies came from Indian governments, groups, or individuals rather than from superintendents, who mostly reported Indian responses to the circular.58 The most common response was that the Indians could not decide what was being suggested. The length and complexity of both the ideas and the proposed changes to carry them out obviously bewildered both Indians and superintendents. Typical of this response was a letter from two individual Blackfeet Indians, who wrote Collier that a meeting to discuss the circular had been held in Browning, Montana. While one group at the meeting, they reported, had opposed the plan, the “rest of us . . . had no clear idea of what you proposed.” They wrote that they had taken the letter to a “disinterested educated white person” for advice and “after hearing his explanation, I can safely say that we Indians do not understand its contents. We would like if it were possible for you to send your representative out to explain it to us in detail. . . . We will then need time to consider what will be for our best good.”

214

A Fateful Time

The minutes of a meeting of Chippewa Indians held at Cass Lake, Minnesota, indicate that there was extensive discussion of the proposal (the minutes run to eight pages), but the meeting adjourned without any action being taken because the predominant view was that the Indians did not have time to decide their reaction to it. At a meeting of Colville Indians held February 10, again no group decision could be reached. Opponents announced that they would get up a petition to present to the superintendent, but others at the meeting were not opposed but could not decide how to respond. Several people at this meeting said they feared the government intended to get more land to be allotted to them, and they did not approve of this. A number of Indians, however, could decide on their response after discussing the circular in various kinds of meetings, and few favored the ideas expressed in the circular. The minutes of a “Grand Council of the Chippewa Indians in the State of Minnesota” report that those present at a meeting on February 2 voted 63 to 0 to oppose the plan. Obviously, from the comments recorded, most of those present held allotments and did not want to give them up. In fact, several replies to the circular requested that more land be allotted to individuals. A letter from the chiefs and council of the Southern Utes rejected key elements of the proposal as they understood it. For example, they supported continuation of the allotment system. They also opposed the plan because they saw it as an attempt to change their form of government, which they reported as a mixture of traditional and progressive institutions. They wrote that “the tribe desires gradually to assume responsibility for its various activities, but wishes to continue the Government body as at present. This is now composed of the two hereditary chiefs and the tribal council of five members elected by popular vote for a period of two years.” This letter also indicated that the Southern Utes, in their view, already had self-government, which was guaranteed to them by their treaty. They wrote, “The tribe believes that a charter of self-government is unnecessary since by the treaty of 1868 it is granted certain rights and privileges, which are sufficient for its needs.” A two-page petition from the Kootenai Tribe, dated February 13, rejected the proposal on the ground that members of the tribe lacked “sufficient education, business experience and training to accept their responsibility.” A letter from the Nez Perce Business Council, dated February 8, rejected the ideas of the circular on the grounds that members of the tribe did not wish to give up their allotted lands, that the proposal represented an “untried experiment,” and that the members of the tribe did not want “the old communal life which never made for progress.” Obviously this government was on the side of the progressives. J. C. Morgan, who later played an important role in bringing about the

Drafting the IR A Proposal

215

rejection of the ira by the Navajo Tribe, wrote Collier on February 15 that he believed his tribe “should be taught and encouraged for self-government, but only on a gradual stages [sic].” He then outlined an alternative proposal—a series of elective bodies in each part of the Navajo reservation—and said “that it is my belief, a very simple plan or methods like the above will work out more satisfactory for all our people on all parts of the reservation, than any complicated plans, especially now, because this tribe as a whole is not by any mean ready for a big undertaking as self-government, so I say again that it should be done by gradual stages.” Morgan ended by saying that “your ideas is [sic] entirely different from the Indians, but I hope, at least, you will know the feeling of one Indian for his people.” A number of replies indicated that some Indians got the impression that what was being proposed was the ending of the trust relationship. Superintendent E. A. Farrow of the Paiute Agency in Utah wrote that one “school of thought” among the Indians “sees in it a scheme for possible taxation and a definite if not very distant withdrawal of material assistance.” A letter from Roger Benn of the Moapa Reservation in Nevada said that the Indians there were not yet ready for self-government because they were too poor. He wrote, “Our land isn’t big enough to give us enough profit from it.” His letter went on to explain that the Southern Paiutes on this reservation earned so little revenue from their land that they could not afford to hire “our Indian policeman and whoever is in charge and live a decent life.” The extensive minutes of a “General Tribal Council of the Shoshone and Arapahoe Indians” on the Wind River Reservation contain numerous statements echoing the sentiments of Charles Washakie, who said, “I do not believe that it would be a very wise proposition to abolish the present administration and become self-government because we are very poor.” He and several other speakers at this meeting indicated that they did not believe their reservation could afford to pay the salaries of agents. Even many of the Pueblo governments, which Collier personally knew best, rejected the January 20 circular. For example, the governor and council of Acoma Pueblo wrote that “we feel thankful for your suggestions which you have given us. But we feel we have most of the suggestions you have made along our self Government and Rules and regulations. We hope the office will respect our way of self government.” Similarly, the governor of Cochiti Pueblo wrote Collier on February 12 that “we have held a meeting regarding this and after considering it thoroughly believe that our present organization and system of government is entirely satisfactory for us.” A minority of the replies to the circular reported approval of the program by Indians. A letter from the chairman and secretary of the Tribal Council at Crow Creek in South Dakota wrote that at a Tribal Council meeting on February 27 the council voted 12 to 1 to accept the “principles of self-government in

216

A Fateful Time

the circular letter.” At a meeting of the Grand Portage Band of Chippewas held on February 9, a majority was reported to have favored the bill, although a “small minority” disagreed and left the meeting before a vote was taken. A letter from the superintendent of the Pima Indian Agency reported that the Tribal Council had discussed the circular and “mass meetings” had been held in various districts. The superintendent reported that most people supported it. He said that the Pimas had been discussing a constitution for years and that the circular had prompted them to propose it; he enclosed a copy of the document. The circular initiated the organization of tribal governments in other areas, although it had not suggested such action. The superintendent of the Carson Indian Agency in Nevada wrote Collier on February 26 that four “local councils” had been organized in response to the circular and that “three of these are new.” He reported that the Indians had made their selections of council members outside the presence of government officials and that “the councils selected were then officially recognized as indicated in the accompanying carbons of letters to their chairmen.” One of the important effects of the circular was that it clarified a point that had not been made clear previously. The circular had suggested a pattern of government basically like a county or city council, although it had indicated that this was only a suggested form. When a number of Indian governments responded that they preferred their existing governments, Collier replied uniformly that the bill was not intended to displace existing governments if the Indians wished to retain these nor to prescribe a particular form of government if they wished to make changes. For example, officials of several of the Pueblos wrote letters similar to the ones quoted above, stating that they intended to continue with their traditional governments. In a series of letters to various Pueblos and/or Pueblo superintendents, Collier assured them that there was no intention to change their pattern of government, although he also suggested to them that they might wish to add structures. For example, he wrote the council of San Ildefonso that “we have no wish or intention of interfering in any way with the present form of government of the Pueblos or any other Indian group. It is up to the Indians themselves to determine the kind of government they want.” However, he also noted that the plan would provide the possibility of charters that could enlarge the powers exercised by an existing government. “It may be,” he wrote, “that the Pueblo of San Ildefonso would like to receive some additional powers over those it now exercises.” Similar letters went to other Indian groups making the same defense of their governments; Collier knew that societies other than the Pueblos had gov-

Drafting the IR A Proposal

217

ernments they desired to keep. In reply to the letter from the Southern Utes quoted above, he wrote that “it will be entirely up to the tribe to determine whether it wishes to continue its present form of government or to adopt a new one.” In reply to Ernest E. Thompson, chairman of the Pawnee General Council, he wrote that “the bill does not prescribe any form of self-government, but will leave it largely to the Indians themselves to determine what form they desire and whether or not they wish to collect taxes, pay salaries to their officials, etc.” The same message was conveyed to superintendents in the field. In a letter to Northern Navajo Agency Superintendent E. R. McCray on March 1, Collier wrote that “it is not our intention to disturb the kind of government preferred by any particular tribe. . . . It is probable, however, that after the Indians have thoroughly considered the powers that may be granted through a charter under the new bill, they will wish to formalize and possibly enlarge their present governmental powers by obtaining a charter.” Replies by Collier to other letters also explained more fully the thinking behind the new approach. In an April 17 letter to W. A. Frisbie of the St. Paul Dispatch, Collier emphasized the “flexibility” of the charter device and its “optional” character, and then went on to say: We do not believe that there can or will be a rapid, universal organization of Indian communities. As we see it, they will be formed initially on a small scale here and there, primarily to take care of at least a part of the Indians who are now entirely landless and destitute. As these initial communities get under way and demonstrate their usefulness, the Indians of areas still containing allotted restricted lands will begin to see the advantages of consolidating their holdings and of assuming responsibility for at least part of their communal business, with the government gradually retiring to the role of fiscal auditor and general advisor. Although no documentation of the making of this decision has been discovered, there can be no doubt that these responses to the January 20 circular were chiefly responsible for the series of congresses, called around the country, at which Collier and other Bureau officials explained the bill to Indians directly and listened carefully to their viewpoints (see chap. 8).

Conclusions Collier wrote various things at various times about the origins of the Indian Reorganization Act and the ideas behind it, although he never provided a

218

A Fateful Time

detailed account of its genesis or legislative history. In most of what he wrote he implied more direct Indian involvement in this process than was the case. In his autobiography he wrote, for example, that by the time he took office “in large measure the detailed, changeover needed in Indian administration had been spelled out and agreed upon by the Indians and their friends” and that this understanding “had evolved through consultation with countless Indian delegations in connection with one or another issue taken up by the American Indian Defense Association.” 59 In one of the Indian congresses in the spring of 1934 he asserted that the “essential ideas in the bill . . . were all put forward in 1929” in the Wilbur-Rhoads letters discussed earlier and that a number of “organizations who have been working in behalf of the Indians for years” also had contributed ideas. At that point an unidentified Indian asked, “Did the Indians themselves suggest any part of it?” Collier replied that they had but could offer few examples of such Indian input. He said that the “original suggestion for the incorporation of tribes, which is at the heart of this bill, was made in 1927 by the Klamath Indian Tribe of Oregon . . . later the Menominee Tribe took it up and they have contributed more ideas. The Pueblo tribes and the Eastern Cherokees have been organized as bodies corporate for years and their experience underlies a good deal of this legislation.” He went on to suggest that former Senator and Vice President Charles Curtis, a Kaw Indian, had provided ideas, and concluded by asserting, “Yes the Indians have contributed a whole lot to this bill.” The suggestion that Curtis may have provided input is both unsupported by any evidence and extremely unlikely. The vice president, although one-eighth Kaw, was strongly assimilationist. As chair of the Senate Committee on Indian Affairs during the 1890s, before becoming vice president, he had led in enacting laws forcing allotment on Oklahoma Indians and destroying their governments, and he was proud of this fact.60 The truth is that most of the ideas in the draft came from non-Indians, many of them poorly informed about Indian life. There had been no Indian involvement in the drafting of the omnibus bill, although the Bureau had sought the advice of anthropologists and friends of the Indians during this process. It did not invite Indian input until the drafting process was almost complete. In a wider sense Collier was not inaccurate in making this claim, however. He had worked closely with several Native American groups and passionately advanced their interests. He was by that time the principal advocate of the tribal alternative ideology, which rested on the notions that Indians themselves should decide their fate and that the national government should abandon completely those policies based on the ideology of forced assimilation. Shortly after the statement from his autobiography quoted above, Collier wrote that

Drafting the IR A Proposal

219

the “essence” of the Indian New Deal was “the vesting, as bodies corporate, in the Indian tribes themselves, of control over their own affairs— domestic, civil and fiscal.” This is an honest and accurate statement of the deepest purposes of the tribal alternative. In dealing with existing policies and attempting to make sweeping statutory changes, however, Collier relied more on expert non-Indian opinion than on ideas from Indians themselves.

Chapter Eight The i r a Before Congress Stalemate and Response

Although Commissioner Collier had with good reason assumed that the reform omnibus bill would be approved quickly by Congress simply because it was endorsed by the Roosevelt administration, things did not turn out that way. Instead, after a few early hearings no progress toward passage occurred at all for several months, and it was apparent that the bill was in serious trouble. Under Collier’s leadership, the bia responded creatively to these unexpected difficulties. One important result of the stalemate was unprecedented consultation with Indians in a series of regional meetings, which resulted in more meaningful Native American input. Eventually the barriers to passage were overcome, although it was June before the Indian Reorganization Act became law. When incontrovertible proof that it had the personal support of Franklin Roosevelt was offered, ultimate passage was ensured, although the content of the bill was still in dispute.

The Bill as Introduced The reform bill as it went to Congress contained four titles extending over several major areas of law. The summary of the bill offered here focuses on the provisions dealing with Indian self-government. But because it was intended as a comprehensive reform statute its other major features must be noted. Title I, “Indian Self-Government,” declared it to be the policy of Congress “to grant to those Indians living under Federal tutelage and control the freedom to organize for the purposes of local self-government and economic enterprise . . . and to provide for cooperation between the Federal Government, the States, and organized Indian communities for Indian welfare.” 1 This title contained two other statements of policy: that “those functions of government now exercised over Indian reservations by the Federal Government . . . shall be gradually relinquished and transferred to the Indians of such reservations” and that the national government would “assist in the development of Indian 220

The IR A Before Congress

221

capacities for self-government and economic competence by providing for the necessary training of Indians, and by rendering financial assistance and cooperation in establishing Indian communities” (section 1). Specifically, Title I authorized the secretary of the Interior to issue charters to two types of Indian groups. First, on petition of one-fourth of the “adult Indians residing on any existing reservation,” the secretary could issue a charter to the Indians of the reservation or a “subdivision thereof,” which would go into effect only when approved by a three-fifths vote of “all adult Indians” residing within the relevant territory who voted in an election called to determine whether the charter should be approved. Second, if “a new Indian community” came into existence by secretarial action (an option outlined in Title III), the secretary was empowered to issue a charter without any formal means of approval by the members of the community other than through their acceptance of membership in it (section 2). “Supplements” to both kinds of charters were to be made by the secretary if “initiated or ratified” by a threefourths vote of adult Indians voting in an election (section 4). This procedure would have been optional for Indians living on reservations and would have been triggered by them, although only a quarter of the population could start the process. While the charter would have required approval by more than a majority vote, there was no requirement that Indians participate in determining the content of the powers granted by the charter. For “scattered” Indians the Bureau would have had more control over the charterissuing process; Indians could consent to a charter only in the sense that they could refuse to join the community if they could not accept the charter. In other words, there was a mixture of Indian control with Bureau control in this crucial first process. However, we know from the last chapter that the plan was that the Bureau would take the initiative to acquire land for landless Indians but that it intended to allow Indians living on reservations to decide whether a charter should be issued and what its content would be. Whether this novel process, if it had been approved, would have actually provided for the Indian control the drafters intended will never be known. We do know that the purpose of the procedure was to allow for flexibility, so that only those forms of organization actually desired by reservation Indians would be authorized by the charter. The question is whether the problem of Bureau arbitrariness in organizational matters, to which we know Collier objected, would have been curbed by this procedure. Because of the proposal’s novelty and the great complexity of the opportunities to be made available to Indians, detailed language describing the chartering process is confusing, and it is easy to see why both Indians and legislators were puzzled and frustrated by it. For example, section 3 stated that the charter was to “prescribe a form of

222

A Fateful Time

government adapted to the needs, traditions, and experience” of the community, if “such community is sufficiently populous and endowed with sufficient territory to make the establishment of local government possible.” It went on to state that “each charter shall further specify the powers of self-government to be exercised by the chartered community, and shall provide for the planned extensions of these powers as the community offers evidence of capacity to administer them.” Section 4 appeared to conflict to some degree with section 3; it provided that charters could authorize Indian communities to exercise a wide variety of authority, including the power to “organize and act as a Federal municipal corporation, to establish a form of government, to adopt and thereafter to amend a constitution, and to promulgate and enforce ordinances and regulations for the effectuation of the functions hereafter specified, and any other functions customarily exercised by local governments.” Perhaps section 4 intended to specify that the authority granted by the previous section could be exercised only through the drawing up and approval of constitutions, but on the surface the two sections seem to duplicate each other, at least in part. Again, there was no requirement that constitutions drawn up under these provisions be developed only with Indian participation. The authority that could be exercised by a government created under the act was extensive. Section 4 said that governments created by a charter or a constitution could select officers and employees, “establish courts for the enforcement and administration of ordinances of the community,” control tribal property in a number of ways, “compel the transfer from the community for inefficiency in office or other cause, of any employee of the Federal Indian Service locally assigned,” and “exclude” from the territory of the community “nonmembers whose presence endangers the health, security, or welfare of the community.” The last listed power appears to be a restatement of the espionage statutes whose repeal had long been sought by Collier. In addition, such a government could “exercise any other powers now or hereafter delegated to the Office of Indian Affairs, or any officials thereof, to contract with governmental bodies of State or Nation for the reception or performance of public services, and to act in general as a Federal agency in the administration of Indian affairs.” However, the latter statement was accompanied by a proviso that the national government was not to be liable for the action or inaction of the Indian community. Such a government was also authorized to exercise “any other powers, not inconsistent with the Constitution and laws of the United States, which may be necessary or incidental to the execution of the powers above enumerated” (section 4). Section 6 provided that estimates of federal expenditures involving a reservation or community be submitted to the Indian gov-

The IR A Before Congress

223

ernment in advance and that the comments of the government on these estimates be transmitted to Congress and the Bureau of the Budget. Deloria and Lytle believe that this provision was “the real power contained in this title” because “a skillful tribal council” could use it as “a devastating weapon in the perpetual struggle with federal bureaucracy.” 2 In addition to these powers, section 4j clearly recognized that new governments created under the act would be authorized to exercise existing authority possessed by Indian governments: An Indian community chartered under this Act shall be recognized as successor to any existing political powers heretofore exercised over the members of such community by any tribal, or other native political organizations comprised within the said community, not withheld by such tribal or other native political organization, and shall, subject to the terms of said charter, further be recognized as successor to all right, interest, and title to all funds, property, choices in action, and claims against the United States heretofore held by the tribes or other native political organizations comprised within the community. It is hard to know what this provision means, but the best bet is that it refers both to reservations and to the new governments of communities within reservations, which would have governments exercising powers delegated to them by the government of the reservation as a whole. We know from the billdrafting process as well as from the explanation of the bill given to Congress that both “distinct types of communities” were contemplated. Deloria and Lytle think that this provision, had it become law, could have had the effect of transferring most of the authority of traditional governments to these new community governments, leaving the existing governments as little more than empty shells.3 This could be correct, because the vote required by the section applied only to the Indians residing within the territory to which the charter applied. However, the provision states that it does not apply to “powers . . . withheld” by existing governments. The very idea of creating subgovernments within societies with existing governments would no doubt have been both confusing and divisive. Reasonable people could easily differ substantially in attempting to predict in advance what it meant. The explanation accompanying the bill gave part of the reasoning behind these complex provisions, saying that while the bill would allow more choices, it would “not even force home rule on the indians. Its home-rule features . . . are exclusively permissive; no Indian group need take advantage of them; and in the event that any group does take advantage of them, no cut-and-dried formula of organization or procedure is imposed by the bill.” 4 We know from the bia responses to fears expressed by traditional govern-

224

A Fateful Time

ments that the establishment of new governments would threaten their existence that there was no intention to abolish or override existing governments. The intent was to allow governments that wanted to empower local communities to do so or to create governments in newly established societies made up of formerly landless people. But the confusion created by this language, combined with the fact that the charter mechanism was a new device, untested and never seriously considered before, unavoidably raised fears that adoption of the bill would weaken existing Native American governments. In the hearings, Collier was explicit that section 4j was intended to protect the authority of the Pueblo governments, the traditional structures he knew best. He explained that “at present the United States will recognize the law of the tribe as governing the members of that organization” and that “the community would have all the powers that have been held by the tribal organization.” He then read the section, referred to the role played by the caciques in Pueblo government, and said, “It is very vital to certain southwest tribes, for example, the Pueblos. . . . No Pueblo would go in as a charter community if it had to go in at the violation of its ancient system. Without their priests, they would not agree to become a charter community.” 5 It is clear from the lengthy explanation accompanying the bill that its drafters were aware of the broad authority still retained by Indian communities, as the courts had recognized. It is implied that the new governments were to continue to exercise these powers, although the bill did not address the relation between the authority of old and new governments. The explanation stated, “In large measure, the charters granted under this bill to Indian communities will be a recognition of tribal powers which Congress has never seen fit to abrogate, rather than a grant of new powers. The right of an Indian tribe to deal with many matters affecting the lives and property of its members has repeatedly been upheld by the Federal courts. . . . The last paragraph of section 4 therefore specifically provides for succession to existing tribal powers, as well as tribal assets, by the chartered Indian community.” 6 The rest of Title I dealt with several topics. The secretary of the Interior was required to provide chartered Indian communities with information that would be necessary for them to exercise powers of self-government, including annual estimates of expenditures affecting the community, with the community’s reactions to these estimates to be passed on to Congress with the secretary’s estimates (sections 5, 6). A key element of the bill was its goal of gradually allowing Indian communities to take over portions of government services affecting them, at a pace determined by the Indians. A number of provisions elaborated on the statement of section 7 of Title I that the secretary of the Interior was given authority to “delegate to any Indian community, within the limits of its competence as

The IR A Before Congress

225

defined by charter, the authority to perform any act, service, or function which the United States administers for the benefit of Indians within the territorial limits of the community” on the basis of annual “agreements.” Indian communities, by three-fourths vote of all “adult members,” were to have the right to request additional delegations of authority (section 8). However, the secretary of the Interior was required to establish “standards of fitness” for Indians applying for such positions, which included specifying “the positions for which Indians shall qualify” and the “required number of qualified Indians for each such position.” Again, this was confusing and probably contradictory. Another part of Title I provided that the secretary of the Interior was to establish “standards of fitness” for Indians applying for Bureau of Indian Affairs positions so that Indians not otherwise eligible to fill them under civil service rules could be employed by the Bureau, a form of Indian preference. Utilizing these standards, Indian communities were authorized to appoint Indians to Bureau positions located within their reservations, subject to approval by the commissioner of Indian Affairs (section 8). How this delegation policy would have worked in practice is difficult to determine; Deloria and Lytle think that inevitably there would have been “some sense of conformity” nationwide in these delegations, but this is not the most important question.7 Central to determining how devolution to tribes would have worked is the question of how much control would be retained by the secretary of the Interior. This was not very clearly stated by section 9 of article I. The Secretary and the Commissioner shall continue to exercise all existing powers of supervision and control over Indian affairs now entrusted to them or either of them which are not transferred by charter or supplement thereto or by Act of Congress to organized Indian communities, and shall have power to enforce by administrative order or veto, if so provided within the charter, or, in any event, by legal process in any court of competent jurisdiction, all provisions contained in a charter for the protection of the rights of minorities within the community, all provisions therein contained for the conservation of the resources of the community, and all other provisions that limit, qualify, or restrict the powers granted to the community. While there must remain doubt about how these provisions would have been interpreted had they become law, they would still have left in the hands of the secretary and the commissioner a good deal of ultimate control over many types of authority to be exercised by Indian communities. On the one hand, the provision clearly envisaged the transfer to Indian communities of authority previously exercised directly by the national government. There

226

A Fateful Time

already was a statute authorizing some such transfers (see chap. 1); nevertheless, the sweeping devolution contemplated by the draft ira was clearly too radical to be taken seriously in Congress at that time. Since passage of the Indian Self-Determination and Educational Assistance Act of 1975, such devolution to Indian governments has become a central feature of national Indian policy, but it was quite unlikely to be approved in 1934.8 On the other hand, this section just as explicitly left with the government the authority, even if contained in a charter, to enforce restrictions on such devolution. Inevitably, this would have led to much confusion and the retention of much discretion to bia officials. Among other things, the draft bill clearly would have required the national government to limit the governments of Indian communities in two important areas—the conservation of tribal resources and the protection of civil liberties of members against Indian governments. Both areas have been subject to substantial controversy in recent decades. Before passage of the Indian Civil Rights Act in 1968, only tribal constitutions applied civil liberties restraints to Native American governments. After passage of this act and its interpretation in the U.S. Supreme Court case of Santa Clara Pueblo v. Martinez, a portion of the Bill of Rights specified (and modified) by Congress restrains tribal governments, but the authority of federal courts to enforce such restraints is limited to cases in which the writ of habeas corpus is relevant but not through other means. In effect, Indian governments remain the chief enforcers of the Bill of Rights where they are involved; both the national government and the federal courts play minor roles in this important area.9 The argument over applying the Bill of Rights in a comprehensive manner against Indian governments is that to do so would unduly restrict Indian sovereignty. Whether all of these complexities would have been given adequate consideration if the draft bill had been given serious attention is not known but doubtful. The intent to continue the guardianship relationship between the national government and Indian societies was clearly stated by section 11 of Title I, which said that nothing in the act was to “be construed as rendering the property of any Indian community or of any member of such community subject to taxation by any State or subdivision thereof” or as expressing “intent on the part of the United States to abandon the duties and responsibilities of guardianship of any Indians becoming members of chartered communities.” Finally, Title I authorized annual appropriations of not more than five hundred thousand dollars to pay the expenses of “the organization and development” of chartered communities, including capital expenditures and “improvement of community lands” (section 12). If one examines the drafting process, the intent to increase Indian control at

The IR A Before Congress

227

the expense of the authority of the national government without ending the trust responsibilities of that government is clear. However, it is not easy to say how visible this objective was to legislators, who of course knew nothing of the process leading to the bill that was before them except the complex document itself and the long explanation accompanying it. What would have been the result had these untried proposals been approved is also not clear. Indian attorney Thomas L. Sloan suggested during the congressional hearings on the ira that Title I would have expanded rather than contracted the exercise of national control over Indian governments.10 One danger was that the great flexibility in implementation, which was one of the reasons for the complexity of the bill, would have led in practice to something like the situation that had existed prior to passage of the ira. In at least the Burke and Rhoads-Scattergood administrations (as noted earlier in this text), national officials, in the absence of congressional or even regulatory guidelines and restraints, felt free to organize Indian governments and recognize existing governments in an arbitrary fashion, regardless of how convinced government officials were of their rectitude. The policy outlined in the draft ira would have allowed similarly unrestrained authority on the crucial question of the content of charters, although these charters would then have restrained the actions of national administrators. Another problem with the bill was the lack of clarity about the status of existing Indian governments. Nothing in the draft bill states unambiguously that there was no intention to abolish existing governments, especially if these were traditional. This intention is clear, however, if one takes into account the evolution of Collier’s ideas on Indian policy, as well as the 1932 tribal council bill, which reflected his understanding that Native American governments still retained much aboriginal sovereignty, and the Bureau responses to the “Self-government” circular. In discussing the authority that newly created governments of Indian communities would exercise, the draft bill clearly states that they would be inheritors of such remaining authority as existing Indian governments still possessed, a reference to existing Indian law. But nowhere is there any statement that the Congress was acknowledging explicitly the existence of such governments. This ambiguity relates to another in the draft bill. Nowhere in the document is “Indian community” defined (although the end of Title I contains a list of definitions and there is another such list at the end of Title III). The bill contemplated creating new Indian governments for new social entities—subcommunities within reservations and new societies brought about by the acquisition of new lands for Indians not then living on reservations, as well as for entire reservations. But it is uncertain whether those who were ignorant of

228

A Fateful Time

the drafting process understood that the intent was to issue charters to three different kinds of groups. Nor is it certain whether a charter could have abolished or overridden existing governments. Title II, the education portion of the draft bill, required the commissioner of Indian Affairs to provide training specifically designed to help Indians take over functions presently being performed by the national government. It also authorized providing scholarships and other forms of “financial aid and assistance” to Indians wishing to attend college (section 1). This continued a practice begun under the Rhoads-Scattergood administration. Section 2 of this title declared that it was the “purpose and policy of Congress to promote the study of Indian civilization and preserve and develop the special cultural contributions and achievements of such civilization, including Indian arts, crafts, skills, and traditions.” This title also mandated the preparation of curricula for Indian schools to accomplish this purpose, permitted the hiring of instructors to teach “Indian culture and . . . the contemporary social and economic problems of the Indians,” and required the commissioner to make facilities available to teachers of these subjects who might be “appointed or employed by an Indian community” (section 2). Title III dealt with the important question of control of Indian land and resources. The title began with an elaborate statement that it was the policy of Congress to undertake a constructive program of Indian land use and economic development, in order to establish a permanent basis of self-support for Indians living under Federal tutelage; to reassert the obligations of guardianship where such obligations have been improvidently relaxed; to encourage the effective utilization of Indian lands and resources by Indian tribes, cooperative associations, and chartered communities; to safeguard Indian lands against alienation from Indian ownership and against physical deterioration; and to provide land needed for landless Indians and for the consolidation of Indian landholdings in suitable economic units. (section 1) A number of means were proposed to accomplish these ends. First, the bill halted further allotment of Indian lands and indefinitely extended existing trust periods on allotted lands “until otherwise directed by Congress” (sections 2, 4). Several ways were specified by which the Indian land base could be increased: purchase of new lands by the national government (with an authorization of $2 million for this purpose) or the Indian community; voluntary relinquishment by individual Indians of allotted lands to the community; and

The IR A Before Congress

229

involuntary relinquishment by individual Indians of allotted lands to the community (sections 5 –13). The last approach was spelled out in complex provisions that proved to be highly controversial. Title III also substantially increased the authority of the secretary of the Interior over Indian lands for conservation purposes. For instance, it “authorized and directed” the secretary “to classify and divide the lands owned or controlled by an Indian tribe or community into economic units suitable for farming, grazing, forestry, and other purposes, and [to] lease or permit the use of, and . . . regulate the use and management of, such lands whenever in his opinion necessary to promote and preserve their economic use” (section 14). The same section permitted the delegation of these powers to Indian communities. The secretary was similarly required to “make rules and regulations for the operation and management of Indian forestry units on the principle of sustained yield management, to restrict the number of livestock grazed on Indian range units to the estimated carrying capacity of such ranges,” and “to protect the range from deterioration, to prevent soil erosion, and like purposes” (section 15). This section also provided that such authority could be delegated by the secretary to “a chartered Indian community.” To implement this title, the secretary was authorized to “proclaim new Indian reservations” on purchased lands (section 16). Title III ended with an exclusion from its provisions, with the exception of Title II, of “the Indians of New York State” (section 21). Title IV would have established a United States Court of Indian Affairs, consisting of a chief judge and six associate judges appointed by the president with the advice and consent of the Senate for ten-year terms (sections 1, 14). The court was authorized to travel around the country and delegate its authority to one or more of its judges (section 2). This title also provided for the appointment of up to ten “special attorneys” with the duty to “advise and represent such Indian tribes or communities as the Secretary of the Interior may designate, and the individual members thereof or to represent the United States on behalf of such tribes or communities or the individual members thereof” (section 23). The new court would have been at the level of a U.S. District Court, for this title authorized the appealing of its decisions to the U.S. Courts of Appeals rather than to District Courts (section 15). The original jurisdiction of the court would have been substantial; it was to hear all federal criminal cases arising “within the territory” of a reservation or Indian community, all cases to which a tribe or a community was a party, all cases involving “commerce with any Indian tribe or community” where one party was not a member of the tribe or community, all civil and criminal cases “arising under the laws or ordinances of a chartered Indian community” where a party was not a member of the

230

A Fateful Time

community, all civil actions that raised “a substantial question concerning the validity or application of any Federal law, or any regulation or charter authorized by such law, relating to the affairs or jurisdiction of any Indian tribe or chartered community,” and all actions involving allotment of land, settlement of estates of deceased Indians, and questions of guardianship of minor or incompetent Indians (section 3). Further, the court was to have the right to “order the removal of any cause falling within its jurisdiction . . . from any court of any State or any Indian community in which such cause may have been instituted” (section 5). It was also empowered to hear appeals from any “Court of Indian Affairs” with original jurisdiction. The new Court of Indian Affairs was to extend “all substantial rights accorded to the accused in criminal prosecutions in the district courts of the United States” (section 9). Moreover, a sweeping, although incomplete, extension of the Bill of Rights was made to such courts by section 10, which declared that “in both civil and criminal causes, the right to trial by jury and all other procedural rights guaranteed by the Constitution of the United States shall be recognized and observed.” Probably a main purpose of this title was to destroy the Courts of Indian Offenses—administrative agencies dominated by superintendents, which were not really courts. But it is also the case that it would have destroyed or at least severely restricted most if not all Indian courts then existing by taking away almost all their jurisdiction. Deloria and Lytle note that this title was in conflict with the self-government thrust of the bill as a whole, although they think that “a material change was badly needed” in the system of Indian justice.11 It has been suggested earlier herein that the sweeping nature of this proposal owes a great deal to the vacuum theory of Indian governance. In summary, the bill as introduced obviously assumed as its background the tribal alternative ideology, since the goals were to preserve and enhance the Indian land base, to authorize the creation of new governments in Indian communities (a term undefined but, as the knowledge of the drafting process reveals, referring to communities comprising all or parts of reservations or new groups of “scattered” Indians brought together on newly acquired lands), and to devolve national government functions to Indian governments without ending the guardianship relationship of the national government to Indians. Its section on courts, however, would have devastated existing Native American courts, and it is by no means certain that the complex charter process envisaged as the mechanism for accomplishing the self-government goals of the bill would have had the effect of actually reducing governmental control over Indians. More important, perhaps, the draft bill was very long and complex and put forward various policy proposals— e.g., the notion of charters and the focus

The IR A Before Congress

231

on undefined “communities”—that were untried and so new that there had been little time to consider them and decide how they would have worked. As it happened, however, initially the biggest problem turned out to be getting the Senate Committee on Indian Affairs to pay serious attention to the bill at all. For several months after an initial public reception, the committee held no hearings on the bill.

Barriers to Consideration of the Bill The reorganization bill was treated quite differently by the two committees to which it was assigned. The House committee began its deliberations on February 22, 1934, and continued with public hearings every one to seven days— except for longer periods in March and April when the Indian congresses (see below) were being held—until the twelfth hearing in early May. The first six hearings, ending March 12, were dominated by lengthy explanations of the bill by Collier, sometimes assisted by other Bureau leaders, although there was also a diversion to discuss the Papago issue (see below). Indian comment on the bill was heard on March 13 and, after an informal recess, on April 9. But also on April 9 Collier returned with amendments that in effect substituted a new proposal for the draft bill. The remaining committee hearings offered some opportunity for committee members to suggest amendments to the new proposal, but the series of public hearings ended May 8, when the committee went into executive session to consider still another revision, which had come from the Senate committee. Understanding these events requires knowing what was happening in the Senate committee. The first Senate hearing was held on February 27, but no further hearings took place until April 26. At the first hearing, Collier started his detailed explanation of the proposal, but he was cut off and a major diversion was introduced. Longtime Democratic senator Henry F. Ashurst of Arizona presided at this first hearing, in the absence of Chairman Burton K. Wheeler of Montana, and he was clearly hostile to the bill. He said that his objections arose from his concern with two questions affecting Indians in his state. Ashurst said that he wanted to be sure that the land purchase provisions of the bill did not contemplate expansion of reservations in Arizona and then insisted that Collier deal with the question of mineral development on the Papago (now the Tohono O’odham) Reservation.12 The Papago issue had several facets, but basically the senator was trying to pressure Collier to reverse an order issued in 1932 by Secretary of the Interior Wilbur that had halted mineral exploration on Papago lands. A good deal of time in the first and later hearings was devoted to this irrelevant question, and

232

A Fateful Time

Collier was forced to deal with the issue also in two House hearings (on March 5 and 12). Ashurst eventually succeeded in forcing the inclusion of a provision in the ira that reversed Wilbur’s order. The Papago question took up a great deal of everyone’s time that could have been devoted to the much larger and more important questions dealt with in the proposed bill. It does not seem that the Papago issue was solely a device to derail consideration of the bill. Several senators had fundamental objections to the proposal, but probably Senator Wheeler was not using Ashurst to express his views. Wheeler opposed the senator on this question and prevented introduction of Ashurst’s provision until floor debate on the bill. In any case, the abrupt termination of Senate hearings was a clear signal that the bill was in serious trouble. Collier was not unrealistic in assuming that his omnibus bill stood an excellent chance of passage after it emerged from committee, but he was wrong to assume that both committees would approve it without significant opposition or change. Several factors other than the Papago question undoubtedly contributed to the hostile attitude of the Senate committee. While the Collier-led bia had undertaken substantial efforts to consult anthropologists, the friends of the Indian, and (belatedly) Indians about the ideas in the bill (see chap. 7), the group had neglected to treat legislators the same way. No member of the House or Senate knew what the bill contained until it was introduced. This failure to consult legislators at a critical time was far more serious in the Senate than in the House. Members of the Senate committee, including its chairman, Senator Wheeler, had been conducting investigations of Indian conditions around the country for several years, and most of them were from Western states with significant Indian populations. They thought they were well-informed on the condition of Indians generally. Most of them no doubt assumed that they knew as much about Indians and Indian policy as anyone in the Bureau. This was made explicit in an exchange between Wheeler and Ward Shepard at one of the hearings. When Shepard attempted to make a prepared statement on the allotment problem, Wheeler interrupted him, saying: “Every member of this committee has traveled over these Indian reservations. We know what the situation is, and I wish you would not take up very much time on that phase of it.” He went on to ask, “What we want to know is, how is your bill going to correct it?” 13 Collier was never given the chance to make his elaborate statement about the bill before the Senate committee, even when it resumed hearings on April 26. Senators Wheeler and Thomas repeatedly interrupted him or other Bureau officials, stating or implying that they understood the problem but wanted to discuss the details of his proposed solutions. If Collier or others from the Bureau had discussed their ideas with the leaders of the Senate com-

The IR A Before Congress

233

mittee prior to the bill’s introduction, this objection might have been less strong. Almost certainly such consultation would also have resulted in important changes in the bill. Collier, who had suggested the Senate special investigation and had worked well with the committee for years, may very well have anticipated a warm welcome for his proposal and thought prior consultation unnecessary. With many other things to do to get such an elaborate proposal finished, he may well have thought that keeping legislators informed was the least important task to take care of. However, the senators’ objections had a more profound basis; they disagreed with Collier over the directions that Indian policy should follow. J. Leiper Freeman Jr., whose dissertation contains important information about the genesis of the ira not available elsewhere, wrote that prior to the New Deal, “there had been no indication by the Senate committee, in making its reports or in its hearings, that the ultimate goal should be anything other than assimilation of Indians into American society.” He thought that the committee members never fully understood Collier’s goal but that they did perceive it was different from theirs. Lawrence Kelly makes a similar point; he suggests that during the 1920s Collier “avoided a direct confrontation with Congress over changes in federal Indian law, which would be necessary to obtain his desired goal.” 14 A slightly different interpretation of Collier’s actions in the years before 1933 is offered here. Collier did not develop a comprehensive reform package of bills before 1932 for several reasons, including the fact that he learned only after the Meriam Report about the importance of the allotment policy in shaping Indian life. But he did offer a number of reform bills, including a tribal council bill, in 1932, and in 1932 –1933 he laid out a long list of needed changes. However, the introduction of new ideas in the draft bill complicated matters. No one in Congress was familiar with the bill when it finally came to them. But this was not the result of an ongoing Collier policy of hiding his views; rather, it was an unanticipated consequence of the drafting process. Beyond this, however, the bill was too long and complex and poorly drafted considering its complexity. For example, it did not begin with the customary definition of terms used in it, an important matter when new ideas, such as the organization of Indian communities, are being introduced. Instead, the bill began with a long statement about the goals of the bill, and the goals were restated in other parts of the document. Wheeler objected to this feature of the draft, saying that these were “arguments and propaganda, which have no place in a bill of this kind.” 15 Wheeler and other senators also objected to the bill’s length (fifty-two pages in bill form and forty-eight pages as printed in the hearings) and its confusing

234

A Fateful Time

detail. At the April 28 hearing Wheeler said: “I have read the bill and I will swear that it is impossible for me to understand some of the provisions of the bill, so as to give an intelligent answer to an Indian who writes to me and tell him just exactly what you are seeking to do.” This statement was made in the context of an attempt to dispute Collier’s figures showing strong Indian support for the bill. Wheeler then asked, “If members of the committee who are lawyers . . . cannot themselves tell exactly what you are going to do, how do you expect these uneducated Indians, many of them long-haired Indians, to be able to pass intelligently upon the provisions of the bill?” 16 Apart from the disparagement of traditional Indians, this was a clear statement of a real problem. Other legislators made the same objection. Representative Sam Collins of California, a member of the House Committee on Indian Affairs, said, “Not many of us do understand it, I think.” Representative Will Rogers of Oklahoma doubted that either the Indians or the members of the Indian Affairs Committee understood it, and Representative Oscar de Priest of Illinois said, “There is no member of the committee that thoroughly understands it, and I think I am liberal when I say that.” 17 The substantive objections on ideological grounds were more fundamental, however. Unfortunately Wheeler’s Senate papers were not preserved, and he says little about the Indian Reorganization Act in his memoir. The most general statement about the bill in his memoir is that “when I began looking over the original draft, there were many provisions I didn’t like. It set up a special judicial system for the Indians, with a federal judge to try only Indian cases. I thought it was a crazy idea and had it thrown out in committee.” 18 Several members of both committees clearly were staunch believers in the ideology of forced assimilation and opposed the bill on the ground that it obviously departed from this set of ideas. The long exchange in which several members of the House committee tried to get Collier to endorse assimilation has been described in chapter 6. Also during the House hearings Wisconsin representative Thomas O’Malley charged that the bill was based on “collectivism” and that it could be compared with some of the experiments in the Soviet Union.19 Senators Wheeler and Thomas both made statements of the forced assimilation ideology. On April 30, Thomas charged that the purpose of the bill was to reverse the assimilation policy. He said that “heretofore, for a long time it appears to me to have been the policy of the Government to try and handle these Indians in a development way to eventually disseminate them and disintegrate them and to mix them with the white people, so that the problem would gradually fade away like the mist.” 20 Thomas claimed that this policy was

The IR A Before Congress

235

“working fairly well among some tribes in my State.” Then he said: “Now, this policy, as I see it in this bill, is proceeding to try to change that policy and to retain these Indians in their ancient tribal ways and to get them back on reservations where they can perpetuate their ancient tribal ways indefinitely. Now, that is a question that is very fundamental, as I see it.” Senator Wheeler’s basic commitment to the existing assimilation policy was just as strong, although he thought those policies were not being administered properly, a basic component of the administrative reform ideology. He said twice during the hearings that no legislation at all was needed to improve Indian policy.21 Wheeler aggressively attacked several parts of the bill, and the nature of the specific objections indicates they were based on a rejection of the fundamental ideas behind it. His position as chair of the Senate Committee on Indian Affairs combined with these strong views and his confidence that he understood Indian policy to make Wheeler the key legislator who ultimately determined much of the content of the final bill. Former Assistant Commissioner Scattergood, in spite of his participation in the two Cosmos Club conferences, had retained deep skepticism about the Collier program. He predicted to Wilbur at the beginning of the new administration that Wheeler might be the key to blocking what Scattergood saw as radical proposals coming from Collier. In a letter to Wilbur, dated May 4, 1933, Scattergood wrote: “The outlook is that Collier’s regime will be one of experiments and bad legislation. Probably the Indian Councils will have enlarged powers given to them—perhaps in some ways dividing responsibility with the Secretary and reducing the latter to a rubber stamp and yet (as I expect) without assuming taxation or other burdens of citizenship.” 22 He thought that no one in the Interior Department would stand up against “the combination of Ickes, Margold and Collier” and that the House Committee on Indian Affairs, “with a greenhorn lot of members . . . will probably be easily led into experimental legislation.” “So,” he wrote, “it will come down to the Senate Indian Committee to kill the fool schemes, if such develop. I jokingly told Sen. Wheeler that it looks as if he would be the Conservative and experienced influence in Indian affairs, and I asked him if he could recognize himself in such a role!” Wheeler did indeed play the role of someone resisting change as much as possible, and he “dominated his committee,” as Deloria and Lytle have noted.23 At least one element in Wheeler’s viewpoint was a personal antagonism toward Collier. Freeman says that “incipient personal conflicts between Collier and Wheeler and [Albert] Grorud,” the Senate committee’s chief counsel, were apparent as early as 1932. Both Wheeler and Collier were strong willed, able,

236

A Fateful Time

and fully confident that they were masters of whatever subject was before them, and neither had an observable sense of humor. Although Wheeler presumably did not know of Collier’s religious views he obviously thought of him as an impractical idealist, while he saw himself as pragmatic. As Freeman put it, Wheeler’s “approach to Indian problems was the ‘common sense’ approach, the intuitive political approach.” 24 Wheeler was a Western Progressive who was fearless and aggressive in opposing what he saw as evil; he had been a crusading U.S. attorney in Montana before his election to the Senate and had consistently opposed the political efforts and goals of the Montana Power Company, which he charged with attempting to control the state. He was strongly committed to protecting Indian rights as he understood them, but he was not open to differing ideas about how to protect them.

Presidential Support Given all these problems facing the untried, complex, and controversial Collier bill, the surprise is that it ever became law. One reason for its success was Franklin Roosevelt’s extraordinary power over Congress. Collier was impolitic but not inaccurate in saying that a bill endorsed by Roosevelt would eventually become law. The bill was held up for so long, in fact, largely because Collier was unable for some time to convince legislators that it was favored by Roosevelt. The president knew little about this area of policy and was not kept well-informed about Indian legislation. Collier no doubt assumed that fdr would approve the bill as an administration measure and made early efforts to get a clearcut presidential endorsement of the bill, but it took him a while to obtain a statement that was accepted by legislators as expressing genuine presidential support. Collier from the beginning stated that he had Roosevelt’s backing for the bill. For example, he told the first Senate hearing that “it has gone to the President, who has not sent a message about it but has authorized it to be stated that he will if it is necessary, and he has indicated his personal enthusiasm about it.” 25 Collier seemed to have realized that he needed stronger evidence of the president’s actual support for the bill, but when no letter of presidential support appeared immediately, many in Congress undoubtedly believed that the measure was not backed fully by the administration. Senator Wheeler said in his memoir: One day Steve Early, the White House press secretary, called me and said the President wanted me to push the bill along.

The IR A Before Congress

237

“Has he read the bill?” I asked, feeling sure he had not. “Well, I don’t suppose he has,” Early replied. “You tell him he ought to read it,” I said, “before he puts his stamp of approval on it because there are some things in it I’m sure he wouldn’t favor.” 26 On February 17, 1934, Oliver La Farge, president of the National Association of Indian Affairs, wrote M. H. McIntyre, assistant secretary to the president, asking for a ten-minute interview with Roosevelt on behalf of his organization, the Indian Rights Association, the American Indian Defense Association, the General Federation of Women’s Clubs, and the Indian Rights Committee of the American Civil Liberties Union, no doubt as a result of the 1934 Cosmos Club meeting. The purposes of the meeting were to support the “administration’s program in Indian affairs” and to ask the president to give “his personal support in this session of Congress” to this program. McIntyre wrote back on February 19 that the President was too busy for such an interview, suggesting that La Farge contact Secretary Ickes.27 It is highly likely that this effort was undertaken with at least the knowledge of the Bureau and Collier. Two days after La Farge’s failure to obtain a presidential audience, Collier sent to Assistant Secretary of the Interior Oscar L. Chapman a one-page memorandum describing the bill “which we have supplied to Secretary Ickes to give to the President.” Saying that the memo was a “ruinous condensation,” Collier enclosed a longer memorandum giving both the background of the bill and a detailed analysis of its provisions. The memo stated that the reorganization bill was designed to end “land wastage through the allotment system” and also to bring to an end “federal absolutism which deprives the Indians of all voice in the management of their affairs.” It elaborated the latter goal by saying that “the bill will establish Indian municipal self-government. It will progressively turn over to the Indian communities many functions now performed by the Indian Office, and will provide for the education of Indians in the technical and administrative arts necessary to perform these functions. It will replace Federal dictatorship by planned cooperation between the Federal government and organized, responsible communities protected by a special court of Indian Affairs.” 28 The next day Secretary Ickes returned his copy of the short memo to Collier with a handwritten note across the bottom: “Great stuff fdr.” Ickes reported to Collier: “You will note the President’s comment on the lower left-hand corner. If this will not serve your purpose let me know and I will see whether we can get a formal letter of endorsement out of him. I may add that the President is very much interested in this subject and in your presentation of it. I left him with your brief, which he said he would like to read.”

238

A Fateful Time

Whether the president ever read the longer memorandum is not known; it is in the Franklin D. Roosevelt Presidential Library, but there are no notes on it or supporting material to indicate whether he ever read it.29 On February 27 Collier sent another memorandum to Ickes. It stated: Unquestionably we greatly need a formal statement from the President on the Indian land and self-government bill. The House Committee have gone deep into the bill and so far the indications are nearly a hundred percent good. Also a good reception by the Senate committee, but the hearings have just started. However, without a definite expression from the President, I do not believe we will get the bill across at the present session, and failure to get it across will mean a year’s delay in the essential parts of our reorganization program.30 On the same day Collier wrote Secretary of Agriculture Henry Wallace, enclosing a copy of the reorganization bill and a memorandum on it, with this note: “The President is decidedly friendly to the bill, I know. Should he be moved to give a formal expression, this would not only influence Congress but would have an enormous influence with the Indians themselves. The influence of the Indians is needed, because in the allotted areas adverse white interests are already busy confusing the minds of their Indian neighbors and spreading wildly misleading reports as to the intent of the bill.” 31 Secretary Wallace did write Roosevelt, on March 1, and on March 5 the president wrote Ickes, asking him, “Do you want me to say anything special to help this bill through Congress?” Ickes replied on March 10, saying that he had drafted letters for the president’s approval.32 While he was in Rapid City, South Dakota, attending one of the Indian congresses described below, Collier sent to the office by night letter two documents to be passed on to Ickes. These represented another attempt to get unequivocal presidential approval. A. C. Monahan sent them on to Oscar Chapman in the Interior Department on March 3, saying that one of the documents was a “suggested public statement by the President relative to the Wheeler-Howard Bill” while the other was “a suggested message to Congress.” 33 The two-and-a-half page document repeated the themes of the earlier onepage memo that Ickes had shown to Roosevelt, and added: “Briefly, [the program of the bill] is to give to the Indians an economic security and political freedom, under a real federal guardianship, in place of the faithless or ineffective guardianship of the past.” The one-page document repeats the theme but states specifically that “the Wheeler-Howard Bill is a wise and just measure.” In response to all this effort, President Roosevelt sent a brief letter of endorsement to Representative Howard of the House committee on March 13. This two-paragraph statement mentioned several provisions of h.r. 7902; al-

The IR A Before Congress

239

though it did not ask specifically that the Congress enact the bill, it spoke of “the virile American principles on which it is based” and said that the “natural rights of man” embodied in it “will more nearly discharge the federal responsibility for [the Indians’] welfare than through compulsory guardianship that has destroyed initiative and the liberty to develop his own culture.” 34 The vague wording of this letter suggests ignorance of the contents of the bill, and these doubts were expressed. Flora Warren Seymour, a former member of the defunct Board of Indian Commissioners, wrote an open letter to the president on April 23 in which she said: “Nowhere in your letter is it stated that you have read this bill; and it is only charitable to conclude that you have not done so.” 35 Probably because of these doubts, the letter did not convince many legislators that the president was really in support of it; many reacted to it the way they had responded to Collier’s earlier assertions that fdr was for the bill—largely with disbelief. Collier tried once more, on April 23, to get a stronger and more specific letter of endorsement from the president that would be convincing to his opponents. He sent Secretary Ickes a memorandum enclosing “a brief statement which might be submitted to President Roosevelt as a suggestion of what he might say in a communication to Congress about the Wheeler-Howard Bill. The text was written by the Solicitor’s office and I think it is excellent.” 36 The memo is marked “Confidential.” That Collier was becoming desperate about the prospects for passage of an Indian reorganization act during the 1934 session is suggested by an extraordinary letter sent by Ickes to Bureau employees on April 30. Stating that he had “increasing evidence that there is a subtle, misleading propaganda against the new Indian program emanating from a minority of employees within the Indian Service,” Ickes stated that these actions were “disloyal and pernicious” and that “continuance” of such activity “will be under penalty of dismissal from the Service.” While the letter did not refer specifically to expression of opinion on the reorganization bill, it did say that “the right to petition Congress” did not include “the right to interfere with administration by undercover methods.” 37 On April 28 President Roosevelt finally wrote another letter, specifically endorsing the reorganization bill, after he had sent Stephen Early a note saying, “Dress these letters up— edit them and see if they are all right to send to Wheeler and Howard.” 38 Stating that the Wheeler-Howard Bill was “in the main, a measure of justice that is long overdue,” the president wrote that it was intended to halt the loss of Indian lands and inaugurate an era in which revitalized Indian governments would permit cooperation between Indians and the national government. He wrote that the ending of “autocratic rule” by a federal department

240

A Fateful Time

was important and that without changes the “impending extinction of the race” could not be prevented. Saying that “I do not think such changes can be devised and carried out without the active cooperation of the Indians themselves,” Roosevelt concluded with the statement that “the Wheeler-Howard bill offers the basis for such cooperation. It allows the Indian people to take an active and responsible part in the solution of their own problems. I hope the principles enunciated by the Wheeler-Howard bill will be approved by the present session of the Congress.” When read into the hearings of the House Committee on Indian Affairs, this statement was finally accepted as a clear presidential endorsement, although by that time the content of the bill had changed considerably. As soon as the April 28 letter was read to the committee by Chairman Howard, a significant exchange took place between Howard and Representative Hubert H. Peavey of Wisconsin. Peavey said: “I take it, then, that this is in answer to numerous telegrams and letters that other members of the committee, like myself, doubtless have received, in which the thought was expressed that the President in his original letter to the chairman of this committee was wholly unaware of the real purport of the bill, and that he has just given his endorsement in a haphazard way by having to trust to subordinates on all these various matters; and that, therefore, this is a specific endorsement from the President after having his attention called specifically to the provisions of the bill.” Howard replied: “That is my understanding.” 39 Before this point Senator Wheeler had been even harder to convince that Roosevelt approved the bill, partly because the Bureau of the Budget had not made a report on it. At the first Senate committee hearing after the month-long suspension of hearings on April 26 he referred to it as a bill introduced “at the request of the Department.” On April 28, the day on which the letter was released but before he received it, Wheeler argued with Collier over the meaning of the failure of the Budget Bureau to send a report. He was clearly skeptical that the reorganization bill had the president’s informed support. Wheeler also thought that the absence of a budget report might mean that no funds could be appropriated to carry out the measure that year. He said to Collier, “You say [this] is an administration bill . . . but if the Bureau of the Budget will not approve it at the present time, the Appropriations Committee will never approve an appropriation” for it. When Collier argued that the Budget Bureau would not oppose the president and that the absence of a report from them did not mean that the bill was not an administration measure, Wheeler replied bluntly, “I want to see their report on it.” 40 It is not known why the Bu-

The IR A Before Congress

241

reau of the Budget had failed to produce a report on the bill by this time, although its length and complexity and the novelty of its ideas might help explain this inaction. The April 28 letter convinced Wheeler that the bill had fdr’s support. When it was introduced into the record at the April 30 hearing of his committee Wheeler stated that the president “was very anxious that the bill should be passed at this session of Congress. I am anxious not to delay the consideration of it but to try and get something worked out that . . . might be satisfactory to the Senator from Arizona and to the different Senators.” He went on to say: “I think something can be worked out of this bill. In its present form I think it has many objectionable features, but my idea is that we can work out something, particularly on the land features of it.” 41 This statement marked the turning point in consideration of the bill, since it virtually guaranteed that some form of it would reach the Senate floor. The explicit presidential endorsement came just after Collier had in effect told the Senate committee that he was willing to compromise in a major way. At the Senate hearing on April 26, the first after the Indian congresses, Collier reversed his previous position. After repeated interruptions by senators as he tried to make a systematic presentation of the bill, Collier said: “We would be anxious to present our views. I feel that what I have been saying is extremely inadequate to the situation and to the contents of the bill. I have just been hurrying along, and we are anxious to make a methodical presentation through a number of witnesses. We know we cannot do it today. We feel profoundly that something must be done, though we are not prepared to assert that this is the bill.” 42 This statement was a clear acknowledgment that Collier knew the Senate committee was unwilling to allow serious consideration of the original bill and that he was willing to discuss proposals it would consider. However, no movement toward this solution of the impasse occurred until members were convinced that President Roosevelt wanted some major reorganization bill passed. The New York Times, which made little effort to cover the progress of the Indian reorganization bill, noted the April 28 letter from the president. An article on April 29 quoted the letter, saying that “a move promptly was started to carry out his wishes” when Representative Howard scheduled a committee hearing on the bill. Howard was quoted as saying: “I have no doubt that the bill will go through this session. It may be changed in some particulars, but I am sure it will be adopted in principle, particularly under the amendment I have proposed providing that no tribe shall be forced to come under the new plan if it does not want to do so.” 43 Presidential support was sought and received later to move the bill through possible specific congressional roadblocks. In May the president authorized

242

A Fateful Time

McIntyre to contact Representative Joseph Byrns to obtain a House rule for floor consideration. At another time the president authorized McIntyre to call Representative Howard with the message that “I hope it will pass.” In early June Ickes again went back to the White House to get presidential support to pressure Representative William Bankhead to release the bill from the House Rules Committee, and Early telephoned Bankhead with this message. Secretary Ickes was also personally pushing Bankhead for a rule to permit a floor vote in the House; he wrote Bankhead on June 2 with this request. The House Rules Committee did issue a rule governing floor procedures for the bill in that body.44

Wheeler’s Objections Before discussing the specific moves toward compromise following the April 30 hearing, Senator Wheeler’s objections to the draft bill, particularly as they relate to Indian self-government, need to be examined. First, while he did not object to the cessation of new allotments, he strongly rejected most of the provisions intended to restore allotted lands to tribal control. Section 7 of Title III provided for “voluntary relinquishments” of allotments to a tribe, but sections 8 through 13 authorized several means by which restorations could be brought about involuntarily. One section provided flatly that the secretary of the Interior was authorized “to transfer to an Indian tribe or community . . . any member’s interest in restricted farming, grazing, or timberlands” in return for a “non-transferable certificate” indicating an interest in tribal lands or income. Another section permitted the secretary to “sell and convey” inherited lands to another Indian or a tribe or community; still another section provided that on the death of an allottee “all right, interest, and title in restricted allotted lands” was to pass to the tribe or community; another gave the secretary the authority to change state laws that had governed inheritance of allotted lands when he found that these were “not adapted to Indian needs and circumstances.” Senator Wheeler asserted repeatedly that there was no constitutional authority to take Indian lands without the consent of the owner. When Collier tried to argue several times that the plenary power of Congress over Indians would support such action, Wheeler disagreed. Charles Fahy of the solicitor’s office argued that these provisions merely allowed Indian governments to exercise eminent domain and rested on the plenary power doctrine. When he cited several cases in support of his position, Wheeler would not agree and was joined by Senator Frederick Stiewer of Oregon.45 These provisions were ultimately dropped from the bill. Wheeler’s vehement objection to Title IV, which would have set up a Court

The IR A Before Congress

243

of Indian Offenses, was evident from the start. His stated objections were that it was unnecessary and expensive. At one point, for example, he said that such a court would be “largely a duplication of the work of the Federal courts, and I see no reason at all for setting up a special Indian court of seven judges.” At another time he said that the court would merely take over the functions of existing federal district courts, which were doing a fine job of dealing with questions of Indian law. However, he did not object that it would interfere with Indian judicial institutions. On April 28 he declared of Title IV: “As far as I am concerned that is out.” 46 Probably Wheeler’s most fundamental objection to the draft bill was that he did not believe that Indian governments genuinely existed or that Congress could authorize them to become more than groups with extremely limited authority. In discussing the situation in his home state with Blackfeet Tribal Council chairman Joseph W. Brown, who supported the bill although he favored some amendments, Wheeler said he would object to an Indian council that “would make laws governing the Indians on the Blackfeet Reservation”; he also said that in his judgment, “if you set up an Indian community separate and distinct from the white community you would immediately have trouble between them, and I cannot possibly see it working out satisfactorily in that particular reservation, as broad as it is in this law.” In responding to this Brown asked, “You are fearful of the community government part of it for us?” and Wheeler replied, “Yes.” A few minutes later Wheeler said he was worried that tribal councils might “set up laws which would absolutely be, and could set up laws which would absolutely be, in conflict with the laws that govern your county at the present time, and then you would immediately have conflict between the white people and the Indians there.” 47 On May 4, in discussing the provision of the bill that authorized Indian governments to levy assessments, Wheeler objected that “you cannot in my judgment give an Indian tribe the authority to levy assessments upon its members. That is a power of taxation, and I do not believe that . . . Congress has the authority, to say to a tribal council that you have got a right to levy assessments upon individual members of the tribe.” When Collier pointed out that “this power is exercised now by many tribes,” Wheeler said that this was so “by common consent” and repeated his statement that Congress did not have the authority to delegate taxing power to tribal councils. Senator Lynn Frazier of North Dakota said, “If they set up a government they have the right to tax.” Wheeler replied, “You are not setting up a government, in the first place, you are simply vesting in the tribal council certain authority to make contracts.” During further discussion, Senator Thomas said, “The theory of this bill, as I understand it, is an enabling act for

244

A Fateful Time

any tribe of Indians to form its own government.” Wheeler replied, “No.” In spite of Collier’s repeated insistence that existing law authorized the assessment provisions, Wheeler stuck to his position. Other senators agreed that it would be necessary to have the “legal staff submit a memorandum on the constitutional power to do this.” 48 In discussing the provisions to delegate national functions to tribal councils with continuing national funding, Wheeler insisted that Congress would never approve this, ultimately because it would not trust the councils. He said to Collier: “I think your statement to the Indians is misleading, because . . . Congress will never appropriate money and turn it over to a tribe of Indians to be used and expended by that tribe of Indians, in my judgment.” When Collier said, “If Congress finds that an Indian tribe can administer a service cheaper and better than the Indian Bureau is doing it, Congress is going to be willing to have the tribe do it,” Wheeler replied curtly: “No.” To Collier’s “Why not?” Senator Wheeler answered, “In my judgment, if you did it, or attempted to do it, you would find it would be saturated with all kinds of corruption, and unless it is done by the Department of the Interior, Congress will never appropriate the money.” 49 Wheeler’s views on these questions were extreme even for a time when most legislators assumed that forced assimilation was desirable; he persisted in them even when dealing with areas of law on which even past administrations had recognized the validity of Indian law and its relation to the continuing sovereignty of Native American governments. For example, Wheeler would not agree that Indians could legally be married and divorced under tribal law. Collier reminded him that there were Supreme Court opinions upholding this authority and that “even the Indian Bureau has always tolerated them [Indian marriages] because [they were] tolerated by the courts.” Later, while Oliver La Farge was testifying for the bill, the same question came up again. When La Farge pointed out that in these matters “tribal and customary law” was currently in effect, Wheeler said that “I certainly would not want to see them permitted to adhere to so-called ‘Indian custom laws’ . . . with reference to marriage and divorce laws.” He then asked Collier “just how far” tribal councils “can go under this bill in setting up ordinances and laws which might conflict with the law of the State.” 50 Collier replied that “the tribal custom law, as it is called, has been recognized by the courts repeatedly and by Congress,” but Wheeler said he was “not at all sure” that the solicitor and Collier were right. He then made this statement of his views about the goals of Indian policy: I know the courts have gone quite a long way in recognizing tribal customs, but what we are seeking to do, what Congress should seek to do, is

The IR A Before Congress

245

to have these Indians, as nearly as possible, adopt the white-man’s ways and laws. I think it has got to happen if we are going to go ahead. Certainly the Indians should not be given the power to set up customs with reference to morals which are contrary to the laws of some particular State, because if you do that, you are going to immediately arouse a great deal of trouble, in my judgment, and a great deal of friction between the State and the Indian tribe. Wheeler opposed specifically any legislation recognizing the right of the Pueblos and the Navajos to have laws on marriage and divorce different from those of the states in which they lived. In brief, Wheeler disagreed profoundly with most of the basic tenets of Collier’s tribal alternative ideology, although he did agree that national guardianship over Indians should be continued, to protect their property from takeover by non-Indians. These basic views were in congruence with the forced assimilation ideology, which had dominated national Indian policy since the late nineteenth century. He disagreed with Collier that Native American cultures were valuable and should be preserved and that Indian governments still exercised significant portions of their former authority or that functions that the national government was then performing should be delegated to tribal councils. Wheeler was profoundly at odds with the system of ideas underlying the draft reorganization bill.

The Indian Congresses One more major factor affecting the reception accorded the reorganization bill needs to be discussed before returning to the final events that determined the content of the bill finally approved by Congress. How much of the initial negative response of Indians to the Bureau’s January circular was known to legislators is uncertain. But Indian groups were not shy about expressing their opinions to their senators and representatives on matters important to them, and it was evident that the reorganization bill proposed sweeping change. An indirect measure of the extent of Indian opposition reaching Congress is the fact that one of the most important features of the final act—the requirement that Indians on each reservation had to vote for the ira before it applied to them—was added by the House committee in response to various requests from Indian groups that they not be included in the bill. It must have been painfully obvious to Collier and his top officials that they could not honestly or safely tell Congress that the bill had Indian support and that, as Cohen had warned in January, this fact could be crucial in

246

A Fateful Time

determining whether any bill would emerge from committee, especially in the Senate. Detailed documentation of internal Bureau debate on this issue does not seem to have survived. What is known, however, is that Collier, in response to the problems created by this situation, made a bold move to go directly to Indians with explanations of the bill and seek their support. He had previously told legislators that Indians would support the bill if they understood it, and no doubt he believed this. During the first House hearing on the bill a letter to superintendents and Indians from Collier announcing a series of meetings— initially six but ultimately ten—in several parts of Indian country was inserted into the record.51 The letter enclosed copies of the bill and stated, “The administration wishes that the Indians shall convene and shall freely present their questions and voice their opinions” on the bill. The congresses, as they later were called, were extraordinary events in Indian country. Some meetings had been called by superintendents in response to the January “Self-government” circular, but at the congresses, representatives of the Washington office were on hand to make oral presentations, answer questions, and hear Indian opinions directly. Collier himself was usually present and obviously made a special impact. No doubt many Indians learned directly for the first time that he was passionately committed to supporting their continued existence on the basis of cultures and social structures different from those of the general society. Henry Roe Cloud, a Winnebago educator who had founded the American Indian Institute—a school to prepare Indian boys for college—and in 1933 had been appointed by Collier to head Haskell Institute, the bia’s largest Indian high school, attended many of the congresses. Roe Cloud spoke about Indian higher education but also addressed several other issues.52 Congresses were held in all parts of the country where there were significant numbers of Native Americans so that Indians who could not afford to go to Washington (which no doubt meant almost all of them) could attend. Precisely how invitations were extended at the reservation level is not known, but it is evident that there was a special effort to seek out members of Indian governments.53 Collier repeated at these congresses his assurances that the proposed bill was not intended to require that all societies adopt written documents as the basis of their governance systems nor conform with any single pattern of government. Other Bureau officials made the same kinds of statements. For example, Ward Shepard told the Phoenix congress that “the purpose of this title of the bill is to bring to an end the absolute power of the Indian Bureau over the lives and affairs of the Indians” and that it was entirely permissive; no tribe would have to accept any powers made available by it. Moreover, he stated that “this bill does not set up any particular form of self-government. That

The IR A Before Congress

247

again it is going to leave to the Indian tribe to determine.” Then he stated specifically that the bill would not “in the least disturb” the governing structures of the Pueblos.54 Beyond question the central purpose of the congresses was to build Indian support for the bill. They accomplished this. A March 26 letter to Collier from John P. Bird, “Secretary and interpreter for Santa Domingo Council,” stated this clearly. Bird wrote that the governor and council had been “unprepared to vote upon” the bill at first but that after the All-Pueblo Council meeting on March 15 “through your careful explanation and discussion of it on that day we have come to a clearer understanding of the Bill and its many implications and ramifications. After careful discussion and consideration we wish hereby to go on record as fully in favor of having the Bill become law” (emphasis in original). On April 12 Thomas P. Dodge, chairman of the Navajo Tribal Council, wrote Collier that Collier’s meeting at Fort Defiance on March 12 and 13 had resulted in further council discussion followed by approval. He wrote that the members of the council “urge early passage of the bills with the proposed amendments.” 55 Throughout April and May the Bureau made tabulations of the votes by Indian governments or general councils for or against the bill, and the results were sent regularly to Congress. By May 8 Collier was able to tell the House committee that fifty-five tribes, comprising 141,881 Indians, had approved the bill and that only twelve tribes, with 15,106 members, had voted against it.56 This was not a tabulation of the votes of individual Indians; in most cases such votes were not taken because the actions of Indian governments were accepted as evidence of the views of the group as a whole. But it is apparent that the Bureau had secured at least acceptance of its ideas by its extraordinary educational effort. The Indian congresses also probably educated superintendents and increased their support for the bill. The document entered into the Congressional Record during debate on the bill on the House floor on June 15 stated, “It is doubtful if any piece of legislation in the history of this country has been more thoroughly and intelligently studied and debated by the people whom it would affect than the pending measure.” 57 After the ira became law and each reservation voted whether to accept or reject it, the results confirmed this pattern of support, although there were some significant departures, including the Navajo vote against the ira. Another indication of the effectiveness of this effort is that the final published hearings contain substantially more letters of support from Indian groups or individuals than letters opposing the bill. But the congresses had more significance than their role in building support for passage of the bill; for the first time they provided meaningful Indian input to the legislative process leading to passage of the ira. Collier and other

248

A Fateful Time

Bureau officials listened sympathetically to specific Indian criticisms or proposals for amendment and often agreed to incorporate these in the bill. Eventually more than thirty amendments based almost entirely on testimony or discussion at the congresses were drawn up and introduced into the hearings. In presenting these to the Congress, Collier said that “practically every one of those amendments was handed to us by the Indians.” On April 9 the amendments were given to the House committee, which began to debate them.58 The Senate committee was not yet meeting again by that time. Three of these Indian-initiated amendments paralleled criticisms made by Senator Wheeler on the important matter of tribal control of land and resources. Two of these abandoned a provision allowing involuntary transfer of allotted lands from living individuals to tribal control and modifying the provision for transferring allotted lands to tribal ownership upon the death of the allottee. A third amendment prohibited the transfer of individual mineral titles to tribal control. In an April 15 press release about the new bill, Collier listed these amendments first as the most important of the thirty, suggesting that he had learned how unpopular these matters were with some Indians. Other changes were also intended to allay Indian fears regarding matters the Bureau had heard about only from the congresses. For example, there was an amendment stating that nothing in the act would affect any Indian claim or suit against the government. Another such provision specifically continued the “Sioux benefits”—legislatively authorized payments to individual Sioux Indians—because a number of speakers at the Rapid City congress had expressed concern about them. There was no reason to believe that the ira would have affected either of these matters, but reassurance was wise. The group of amendments suggested directly by Indians included a provision allowing individual Indian societies to refuse to have the act applied to them; because this provision made the draft bill’s exclusion of the New York Indians unnecessary, that part of the original bill was deleted. At least one of the amendments, however, was designed to respond to a congressional objection. This amendment provided that land acquisition money provided by the act could not be used to purchase land for the Navajo Reservation other than land that might be provided in separate bills submitted to Congress for this purpose. This was a concession to Senator Ashurst of Arizona, who had made this demand in the first Senate hearing. Several quite important provisions had their origin in the Indian congresses. One of these, which became law, was a section “specifically prohibiting the disposition of any community or tribal assets without the consent of the tribe or community.” Another required that in important votes by Indians under the act, the majority would prevail if the total number of persons voting was at least two-fifths of all those eligible to vote. This was intended to ensure

The IR A Before Congress

249

against “the possibility of having 50 active voters out of a thousand eligible adults bind the entire tribe.” 59 One of the most important amendments resulting from the congresses added water rights to a section stating that “lands” were not to be “voluntarily or involuntarily alienated.” In several congresses Indians asked if the failure to mention Indian water rights, which had been established by the Supreme Court early in the century, meant that these rights were not to be protected. In response, it was explained that this issue had simply been overlooked and that amendments would be sought to protect Winters Doctrine rights. One of the most revealing of these exchanges occurred at the Phoenix congress, when Melvin Siegel was explaining the bill. He was asked why water rights were not mentioned. He promised, “We will put something in the bill to take care of such rights” and indicated that the omission of this matter was an oversight. Siegel said that “a question like that merely reveals the misfortune of having somebody in Washington who doesn’t know as much as he should to draft the bill. . . . We had no intention of taking away . . . water rights.” 60 Finally, the amendments submitted on April 9 included a provision for a revolving fund to make loans to Indians through Indian governments, which had been overlooked in the original draft and had been mentioned by Collier early in the House hearings, and a proposal to increase the budget authorization level for loans to Indians seeking advanced education. The amendments suggested by Indians did not affect major parts of the bill; the chartering provisions, the plan to devolve bia functions to Indian governments, and the court title all remained essentially intact. In the press release accompanying the package, Collier asserted that the amendments “tend[ed] still further to restrict the arbitrary power now exercised by the Secretary of the Interior over the affairs of Indian tribes and persons.” At its last public hearing, on May 8, the House committee intended to go into executive session to discuss the bill in the light of the few amendments its members had suggested and the many presented to it by the Bureau.61 But before this could happen dramatic but publicly unacknowledged events led to the scrapping of the original bill and the substitution of a streamlined version retaining some but not all of the original concepts in the draft bill, almost none of the details, and some of the amendments arising from the congresses.

The Wheeler-Zimmerman Summit Collier’s willingness to start over was revealed to the Senate committee on April 26, as noted above. On May 17, Senator Wheeler introduced before the

250

A Fateful Time

Senate committee a new draft, reducing the original sixty sections of the bill to nineteen and removing all of the statements of intent. Although the new proposal was drafted in the Bureau, its basic contents had been determined in a private meeting between Wheeler and Assistant Commissioner Zimmerman. According to Zimmerman, the new document represented in essence the portions of the bill that Wheeler was willing to accept. Almost the only information we have about this “summit” meeting comes from J. Leiper Freeman’s dissertation. Freeman got his information about this meeting from an interview with Zimmerman and a letter from him, but these have now disappeared.62 In explaining the new draft to his committee, Wheeler said that “I first appointed a subcommittee with the idea of taking the other bill and amending it, but subsequently I got together with the Commissioner of Indian Affairs and went over the important points that I thought were in controversy, and on yesterday they sent up this bill, which eliminates, it seems to me, practically all of the matters that are in controversy, but I want to go over it. They are very anxious to get the bill out.” 63 The same group of revisions was sent to the House committee on May 15, and on May 17 the bia issued a press release saying that a new draft bill had been introduced, containing those provisions that “would meet the emergencies of the situation” and could be enacted now, while other items were to be “adjourned” for the moment.64 Actually, it was Zimmerman who met with Wheeler. As he described the meeting in a letter written in 1951, “Wheeler and I went over the original bill paragraph by paragraph, he pointing out which sections were not acceptable to him, and which might be retained. Thereafter, I made a rough draft which became the Senate Subcommittee Print. This draft was changed somewhat by the Committee, but it was certainly the basis of Senate action, and it was the result of almost word for word dictation by Senator Wheeler.” 65 Zimmerman was assigned to this important task rather than Collier, according to Zimmerman in a 1949 interview, “because the Bureau leaders felt that Wheeler would cooperate more effectively with someone other than Collier. He had shown so much hostility to Collier in the hearings that this step was deemed advisable.” The Wheeler-Zimmerman meeting took place at Wheeler’s home on Sunday, April 27, the day after Collier’s statement that the draft proposal might not be “the bill.” On the next Saturday, May 3, Collier sent to Wheeler a bill draft that, he said, “incorporates the provisions specifically mentioned by you Sunday, with certain others not touched on.” There were eight items listed as “Pursuant to our Sunday’s conference,” but Collier listed sixteen other matters “not mentioned in our Sunday’s conversation.” 66 Clearly, he did not agree to include in the bill only those provisions that Wheeler had stated he would

The IR A Before Congress

251

accept, although he did acquiesce to Wheeler’s major deletions. Probably there were further negotiations with Wheeler over the next two weeks, because the draft introduced on May 17 covers a good deal more than eight or thirteen items; specifically, a number of the amendments introduced because of Indian suggestions in the congresses remained. In a May 17 press release explaining the new bill, Collier noted three major deletions: the court title, the charter device, and the section allowing Indians to remove superintendents or other employees. But he asserted that the “redrafted bill” still contained the most important matters affecting selfgovernment. These were described as “the enlargement and stabilization of tribal council organization; [and] the grant to Indian tribes of authority to organize for self-help through cooperative business and joint land-holding as distinct from political self-government.” This draft was introduced to the Senate committee on May 17 and considered that day. Various minor changes were made. The plan was to receive legal briefs from the Bureau on a few points the next morning, at which point the committee would approve the bill.67 Actually it was not considered by the Senate as a whole until June 12, so there may have been a number of subsequent meetings of the committee and some redrafting of the bill within the bia. Most of the public testimony from groups and individuals came too late to have much impact. The major presentation in favor of the bill on behalf of groups representing the friends of the Indians in the Senate committee did not occur until May 3, after Collier’s signal that he would consider starting over and after the Wheeler-Zimmerman meeting. On that date La Farge spoke on behalf of his National Association of Indian Affairs, the aida (then led by Allan G. Harper), the American Civil Liberties Union, and the General Federation of Women’s Clubs. This was the coalition that had backed the Bureau’s approach at the 1934 Cosmos Club conference, minus the Indian Rights Association, which had decided after that meeting to oppose the bill. La Farge indicated that the groups he represented basically approved of the bill, although he requested several minor amendments.68 The next day, a written statement in effect opposing the bill on the ground that its goal was not the traditional one of forced assimilation was presented to the Senate committee by Richard L. Kennedy of the Indian Rights Association.69 It is clear that the Indian Rights Association had strong ties to many missionary groups. Some local opposition to the bill came from some church groups operating religious schools or missionary activities on reservations, although it is impossible to say how widespread or important this activity was. Some of these religious groups opposed the Collier administration because of its support for Native American religions and because Collier believed that the constitutional

252

A Fateful Time

ban on the establishment of religion meant that national appropriations could not be used for religious instruction in public schools. In a memorandum to Secretary Ickes dated April 18, 1934, Collier responded to this local opposition. He said that the Catholic Daily Tribune, “the only Catholic daily newspaper,” had published an extensive attack on the bill, in several installments, each of which was accompanied by the following statement: “You realize that there are a great number of Catholic schools for the Indians. Do you know that their status is endangered by this Wheeler-Howard Bill? And do you know that the Indian Commissioner does not believe in religious influences?” Collier was careful to point out that “the Bureau of Catholic Indian Missions is not even a consenting party to the above procedures, nor are the Catholic missionaries as a body opposing the Wheeler-Howard Bill.” But he complained about the “mendacious . . . propaganda” being issued by some religious groups.70 On the House side, on May 2 attacks were made on the bill in writing and in person by leaders of the Mission Indian Federation and another California group headed by Frederick G. Collett. These organizations, led mainly by nonIndians who were consistent opponents of the Indian New Deal, represented an unknown number of California Indians.71 Lobbyists on behalf of the drive to lift a moratorium on mineral exploration on the Papago Reservation in Arizona appeared before both committees and achieved what they wanted, although almost certainly because they had the support of a powerful member of the Senate committee. On May 17, the last day of the Senate hearings, Luther C. Steward, president of an association of federal employees, objected to the Indian preference provisions of the bill, without effect.72 A number of Indians testified before both committees on various issues; their testimony was divided, but with more in support than opposed. The published hearings also contain numerous letters or statements mailed to the committee from many Indian groups in every part of the country, indicating that many Indian governments or other groups wished to be heard on the bill. As with testimony, more of these were in favor of the bill than opposed to it. Earlier letters were more likely to be negative to the original bill; later ones were usually, although not always, favorable to the amended bill. In other cases individuals or groups opposed particular portions of the bill but did not object to it on principle. For example, on March 5 Thomas L. Sloan objected before the House committee to what he saw as an unwarranted amount of nonreviewable discretionary authority granted to the secretary of the Interior. On April 28 Sloan testified before the Senate committee, mostly about the intricacies of the allotment system and the problem of determining the “competency” of allotted Indians. But he also opposed the court title. On the House side Sloan criticized the allotment provisions.73

The IR A Before Congress

253

Some of the Indians opposed the bill because they favored allotment. At the first Senate hearing a statement on behalf of the “Blackfeet Delegation” by attorney John Gloeter asked a number of questions, primarily about allotment, one of which was whether the bill would provide “plain language for the protection of an Indian in his allotment” if the Indian did not want to surrender it to the tribe. Later, Joseph W. Brown, chairman of the Blackfeet Tribal Council, supported the bill but offered some amendments. Obviously some members of the Blackfeet Tribe wanted to protect allotted lands. Jesse Rowlodge of the Cheyenne and Arapahoe Indians of Oklahoma, in an appearance before the Senate committee on April 28, questioned whether there was a right to take the allotted lands of individuals and return these to the tribe.74 On May 4 Joe Dann, a Yakima Indian, spoke in support of the idea of individual ownership of agricultural land by Indians and opposed the selfgovernment thrust of the bill by asserting that elected governments would be dominated by the landless Indians. Among the supporting documents in the Senate hearings were a protest against the bill from the chairman of the Fort Sill Apaches, which stated clearly that individual allotments should continue, and a letter with similar content from an Omaha Land Owner’s League in Nebraska. Similar testimony was reported in the House hearings. Freeman was correct when he stated, “The two main Indian objections to the bill centered around the questions of segregation and property,” with many Indians believing that the bill would “take away their property.” 75 One of the written communications was a statement from Joseph Latimer, forwarded by the American Indian Association, one of the remnants of the Society of American Indians. Latimer was still quoting General Pratt and Dr. Montezuma. Part of the Wheeler-Howard File in the National Archives Building contains extensive correspondence by Latimer against the bill. However, there is no indication that the Bureau or Congress paid much attention to his terminationist views.76

Conclusions The Senate Committee on Indian Affairs from the beginning refused to take the draft bill seriously. In fact, it never allowed Collier to make his long statement in favor of it. Instead, at the first hearing Senator Ashurst introduced an irrelevant local issue, and no more hearings were held for two months. The unanticipated initial opposition to the bill from many Indians also surprised the Bureau and also threatened to kill the bill. In a bold and unprecedented move, Collier and his aides traveled to ten hastily organized Indian congresses around the country to turn the tide. After Bureau leaders had ex-

254

A Fateful Time

plained the bill in person, engaged in dialogue, and accepted numerous Indian suggestions about the content of the bill, most Indians gave their support to the bill. The thirty amendments coming from these congresses amounted to a second version of the bill, although at this point it still contained most of the major elements of the original draft. Collier was forced by congressional skepticism to seek evidence of unequivocal support from President Roosevelt. An early letter from the White House was not accepted as proof fdr had read and endorsed the draft bill. Finally, working through Secretaries Ickes and Wallace, Collier managed to get a presidential letter of endorsement that was accepted on the Hill at face value. Continuing Senate committee opposition, however, finally led Collier to say that he would consider a new bill. Almost immediately, Senator Wheeler met in secret with Assistant Commissioner Zimmerman and told him what portions of the bill he would accept and which ones he would not. When the Senate committee reconvened to consider the bill, a draft based on this summit meeting was the basis of discussion, augmented by amendments that had come out of the Indian congresses or Indian testimony before the House committee. In effect, this was a third draft of the bill, drastically abbreviating earlier drafts and deleting important parts of the first draft. Final passage did not come until another month had passed, however, and the Bureau of Indian Affairs remained an active participant in determining the final content of the bill. This final product, plus the specific history of the portions of the act most important to Indian self-government, will be described in detail before the meaning of the legislative history of the ira is addressed.

Chapter Nine After the Summit The Final Form of the i r a

The Indian congresses, the unequivocal letter of support from President Roosevelt, and the Wheeler-Zimmerman summit meeting had by May 1934 made it all but certain that some kind of Indian Reorganization Act would become law. The precise content of this new, wide-reaching statute still remained to be decided, however. The Wheeler-Zimmerman meeting had determined that several key parts of the original bill would be deleted— Title IV (creating a new court), the provisions authorizing large-scale contracting of national services to Native American governments, and the major proposals to force consolidation of allotted lands. Moreover, the decision to drastically simplify the draft bill meant that other portions would have to be rewritten to some extent. But the provisions halting allotment, the self-government provisions, the education sections, and a number of other topics remained in some form. This chapter will examine many of the changes that resulted in the eventual form of the act and summarize the law as it cleared Congress. After the public hearings, legislative consideration of the bill took place entirely in closed meetings, except for the brief floor debates in both Senate and House, which resulted in few changes. For this reason the entire process cannot be reconstructed; but much of it can, including the portions of the bill having most effect on Indian self-government.

The Final Form of the ira: Land Issues This study has argued that from at least 1928 John Collier understood that ending the allotment policy was crucial to preserving the reservation land base for many Native societies, which was in turn vital to preserving the distinctive cultures and social structures that still characterized much of Native America. It has also been argued that uncertainty over the precise form of the change in allotment laws was a principal factor explaining why Collier did not simply 255

256

A Fateful Time

reintroduce the 1932 package of reform measures that had been approved in principle by the Cosmos Club conferences in 1933 and 1934. The centrality of the allotment issue and related questions concerning resource ownership and use is supported by the fact that these issues make up the bulk of the ira in terms of number and length of sections as well as the complexity of the provisions.1 On matters affecting land and resources, the ira: declared that “hereafter no land of any Indian reservation . . . shall be allotted in severalty to any Indian” (section 1); extended existing trust periods on already allotted lands “until otherwise directed by Congress” (section 2); authorized the secretary of the Interior to “restore to tribal ownership the remaining surplus lands” of any previously allotted reservations, with some exceptions (section 3); prohibited the secretary of the Interior from selling or exchanging “restricted Indian lands or . . . shares in the assets of any Indian tribe or corporation organized” under the ira except to Indian tribes, with certain exceptions (section 4); provided that constitutions adopted under authority of the ira had to “prevent the sale, disposition, lease, or encumbrance of tribal lands, interests in lands, or other tribal assets without the consent of the tribe” (section 16); authorized the secretary of the Interior to acquire by purchase or other means lands and water rights inside and outside existing reservations (including trust lands) for use by Indians and authorized annual appropriations of up to $2 million for such purchases, except that additional lands could not be purchased for the Navajo Reservation if pending legislation to enlarge this reservation passed (section 5); declared that newly acquired lands or rights would be held in trust by the United States for Indians and that these lands would be “exempt from State and local taxation” (section 5); authorized the secretary of the Interior to “proclaim new Indian reservations” or expand existing ones (section 7); directed the secretary of the Interior to promulgate regulations to govern “the operation and management of Indian forestry units on the principle of sustained-yield management, to restrict the number of livestock grazed on Indian range units to the estimated carrying capacity of such ranges,” and make other regulations “to protect the range from deterioration, to prevent soil erosion, to assure full utilization of the range, and [for] like purposes” (section 6); and

After the Summit

257

stated that “allotments or homesteads upon the public domain” outside of Indian reservations were not covered by the ira (section 8). Land and other resources were also at the heart of the special provisions dealing with the Papago Indian Reservation. As noted below, on the Senate floor Senator Ashurst secured special provisions applying to the Papago. These revoked Secretary Wilbur’s 1932 order withdrawing this reservation from mineral development and established special rules for minerals that might be found on the reservation (section 3). Three elements of the ira were not controversial, as far as the record shows: Economic Development. Section 10 authorized an annual appropriation of up to $10 million as a “revolving fund” that the secretary of the Interior could use to “make loans to Indian chartered corporations for the purpose of promoting the economic development of such tribes and of their members.” The revolving fund was to be replenished with moneys repaid to it by the Indians. Education. Section 11 authorized annual appropriations of up to $250,000 for loans to Indians for “the payment of tuition and other expenses in recognized vocational and trade schools,” not more than $50,000 of which was to be used for loans to Indian high school and college students. Indian Preference in Employment. Section 12 directed the secretary of the Interior to establish standards, “without regard to civil-service laws,” to give “preference” to the appointment of “qualified Indians” to “various positions” within the bia having to do with “the administration of functions or services affecting any Indian tribe.” Sioux Benefits and Claims. Section 14 provided specifically for the continuance of the so-called Sioux benefits, and section 15 stated that the ira did not “impair or prejudice any claim or suit of any Indian tribe against the United States” and declared also that it was the intent of Congress that expenditures authorized by the ira not be counted as offsets in any claims suits. Both of these sections came from suggestions made by Indians at the congresses discussed in the last chapter.

The Final Form of the ira: Self-Government The most important argument about the meaning of the ira has concerned its provisions dealing with the governance of Native American societies—selfgovernment in a narrow sense. These provisions probably changed the most between the draft bill and the Wheeler-inspired substitute bill.

258

A Fateful Time

a p p l i c at i o n t o t r i b e s o r r e s e r vat i o n s One of the most important issues decided by Congress was whether the new reorganization law would be applied to all Indians in a uniform way, or would offer a much more flexible approach that would allow each society to make its own choices and proceed at its own pace. This issue has several dimensions. The first question was whether there were to be some Indian groups wholly excluded from its provisions. The only provision in the draft bill providing for this possibility was section 21 of Title III, which exempted the New York Indians from all parts of the ira except the provisions dealing with education. On February 27 Collier told the House committee that the New York Indians did not want the bill.2 There were many indications that this was so; Collier was correct when he reported their opposition at this early point. Perhaps because one cluster of Native American societies had been excluded, other groups began to request a similar exclusion. Many of these came from the reaction to the January 20 circular, which for the first time notified Indians of proposed changes but in a fashion that caused much initial confusion and opposition. Only the House committee was holding hearings during February and March, which may explain why most of these requests came to them first. For example, on March 5 and 13 and April 9 Vern E. Thompson, in testimony before this committee, stated that the Quapaw Tribal Council had voted March 10 to seek an exemption from the ira. His ground was the allotment provisions of the bill; he asserted that Quapaw lands had been fully allotted already and could not be reassembled into tribal holdings.3 In response to Thompson’s request, Minnesota Republican Representative Theodore Christianson asked him if there were other tribes that might want to be exempted. Hearing that there might be, Christianson suggested, “Without expressing any pure conclusion upon the matter, would it not seem wise, instead of amending the bill to eliminate the particular tribe that we have in mind, that we set up some means of ascertaining to what tribes it might be applicable, and to which it might not be applicable, and then proceed to apply the provisions only in those cases where the provisions of the act were applicable?” 4 Chairman Howard endorsed this idea, and it was incorporated by the bia in the draft that included the amendments deriving from the Indian congresses; this document was presented to the House committee on April 9. In the Bureau’s version, the provision would have allowed reservations to petition the secretary of the Interior to allow an election on the issue; if more than a majority of the adult Indians on the reservation voted against the ira in that election, it would not apply to them. The provision required that the petition be presented to the secretary within three months after passage of the ira. If this

After the Summit

259

approach had become law, only those reservations on which there was active opposition to the ira would have voted on whether it should apply to them. The explanation provided with this amendment said that “in order to demonstrate the lack of any desire to force acceptance of this legislation, the chairman of the House committee is proposing, and the Commission [sic] is approving, an amendment which gives every Indian tribe the right to exclude itself from all provisions of the bill within 4 months after its passage.” 5 Collier defended the Bureau version of the suggestion made by Representative Christianson when it came before the Senate committee on May 17, although he would rather have had no such provision at all, and his view prevailed in the committee. Senator Wheeler read the version proposed to the House committee at this hearing and then suggested that it should be phrased affirmatively, so that the ira would apply only to those societies that had voted to accept it. Wheeler asked Collier why the provision had been phrased negatively. Collier replied that “all those parts here which deal with the organization of the tribes have to be affirmatively adopted by the tribes” anyway but that there were other portions of the bill that should apply to all tribes. He mentioned the extension of the trust period for allotted lands and the educational sections, which should apply “unless the tribe does not want it.” 6 Wheeler continued to wonder why there could not be an affirmative provision. Collier replied by citing two parts of the bill that he hoped would be applicable regardless of what a Native American society thought about the act as a whole. He said that there were groups of landless Indians for whom the Bureau might want to purchase lands; if these Indians were a minority in a tribe and the tribe as a whole was indifferent to the act, it might not be possible to help them. He then got more specific about the educational provisions, saying, “We have right now hundreds of Indian young people waiting for a chance to go to college”; he said that they should not be denied the aid provided in the bill because a tribe had voted not to accept the act as a whole. This argument temporarily convinced Senator Wheeler that there should be no provision at all for elections to determine coverage under the act. Wyoming Democratic Senator Joseph C. O’Mahoney (who had been a member of the committee only since January 1934) responded to Collier’s statement about educational loans by pointing out that an election would have to be triggered by a petition. Collier replied that the “section was put in at a time when there was controversy on different features of the bill, and the whole section could now go out.” Wheeler agreed with him, asserting that every provision of the bill except the educational portions (which included the self-government sections) would go into effect only if desired by the Indians, and “certainly you do not want to have a majority vote as to whether or not you are going to educate” anyone or buy some land for Indians.

260

A Fateful Time

Although there are no more recorded Senate discussions of this issue, the version that passed the Senate did not have any provision for Indian voting on acceptance of the act. However, the House version required the secretary of the Interior to call an election on every reservation to determine whether the ira would apply to that reservation. The second sentence of this section declared: “It shall be the duty of the Secretary of the Interior, within six months after the passage and approval of this Act, to call such an election, which election shall be held by secret ballot upon thirty days’ notice.” 7 This provision was still phrased negatively, however; it stated that the ira would not apply to those reservations that had voted against it. bia officials realized the practical difficulties involved in holding elections at essentially the same time on all reservations, and they stated, in an analysis of the bills passed by each house, that such an obligation, required by the House version, “would cast a very large administrative burden and expense upon the Interior Department.” Their analysis also asserted that such a requirement would serve no “useful purpose” inasmuch as “the bill as presently constituted authorizes no changes in the existing legal situation without the consent of the Indians concerned.” If the provision were to be retained, this document asserted, the triggering mechanism should be restored, so that elections would have to be held only on those reservations where there was active opposition to the ira.8 The conference view, which became law, ignored these suggestions, however; essentially the House version became law. Section 18 states that the ira will “not apply to any reservation wherein a majority of the adult Indians, voting at a special election duly called by the Secretary of the Interior, shall vote against its application” in a secret ballot election called within one year after passage of the act. Although section 18 guaranteed that no group opposed to the ira would be subject to it, the final act also exempted certain specific groups. Section 13 declared that it should not apply to territories or other possessions of the United States, except that five sections were to apply to Alaska. Six different sections did not apply to a number of named tribes in Oklahoma. Section 4, forbidding the secretary of the Interior to sell or exchange Indian lands, did not apply to the Klamath Indian Reservation. However, the original exemption of the New York Indians was not in the final act. Another aspect of the exclusion question needs to be considered, however. For a while during the legislative consideration of the bill, both the authority to adopt constitutions and two provisions dealing with incorporation applied only to reservations that had not been allotted, although these were later dropped. This change, although not discussed in the hearings, shows again

After the Summit

261

how important allotment was in the minds of many of the participants in the legislative process. The incorporation sections in the House bill would have allowed both entire reservations or subdivisions of reservations to incorporate. One of these provisions authorized the secretary to approve articles of association for corporations made up of at least ten “members of any recognized Indian tribe” to carry on economic activities. The House report explained that the purpose of this provision was “to make possible the formation of Indian credit unions, [and] of business and land-holding corporations protected against the loss of their land and other assets. Such protection cannot be given to Indian corporations organized under State Laws.” This was the last gasp of the notion—a central component of the draft bill—that organization of communities within reservations should be permitted. The Senate bill did not contain the House provisions on this subject, nor does the final act.9 The undated and unsigned Bureau “Analysis” document discloses the agency’s reaction to these provisions of the House bill; most of the Bureau’s views became part of the conference report and therefore the law. Several of the statements in this document relate to wider questions discussed below and are quoted here because it appears that the bia, which had in the draft bill proposed incorporating portions of an Indian society, became opposed to doing so. The bia suggested in this document that constitution-making should not be restricted only to reservations not yet largely allotted but should be made available to all groups desiring to use these provisions. Instead of promoting the complex provisions of the draft bill, however, the bia proposed that there simply be authority for Native American societies to adopt either constitutions or charters. For the first time, the bia objected to the idea of incorporating a portion of a society. The provisions in the House bill that authorized the chartering of “private Indian corporations” were opposed on the ground that “the incorporation of small groups of Indians may well complicate the task of Indian administration, increase the inequalities of wealth and power that now exist in Indian communities, offer fertile fields for Indian and white swindlers and stock promoters, and create a possible channel for the loss of Indian lands to whites.” p r ov i s i o n s d e a l i ng w i t h c r e at i ng g ove r n me n t s a n d c o r p o r at i o n s By far the most important change made in the provisions dealing directly with self-government was the abandonment of the confusing notion of issuing charters, in the sense of the original draft bill. Unfortunately, there is little

262

A Fateful Time

evidence to reveal why this change was made, other than to simplify and streamline the law. The charter approach remained in both versions of the bill adopted by each house initially; the final form emerged from the conference committee. The analysis quoted above, which gave the Bureau’s comments for the benefit of the conference committee, proposes reducing the proportion necessary to approve a charter from three-fourths to a simple majority. It also argues that a detailed listing of powers that might be exercised by a corporation was unnecessary and that a House provision authorizing a special appropriation for organizing corporations should be broadened to include organizing governments as well. This document also proposed deleting the term tribal business committee, which was contained in the draft bill, on the ground that “any type of administrative body or officials that the tribe may desire” should be allowed. It also suggested that the procedure for amending constitutions be established by the documents themselves, rather than requiring the approval of the secretary of the Interior, on the ground that “so thoroughgoing a subjection to the discretionary authority of the Secretary is no improvement upon the present situation.” Most of these suggestions were accepted by the conferees (but not the final one), and most of them indicated the Bureau’s interest in maximizing decision-making by Indians, but there is no documentation on why the charter procedure was abandoned. In the conference bill, which became law, there are separate sections dealing with constitutions and charters; any society can adopt either. Section 16 authorizes constitution-making, stating that any tribe or tribes “residing on the same reservation” has the right to “organize for its common welfare and may adopt an appropriate constitution and bylaws, which shall become effective when ratified by a majority vote of the adult members of the tribe, or of the adult Indians residing on such reservation, as the case may be, at a special election authorized and called by the Secretary of the Interior under such rules and regulations as he may prescribe.” Such constitutions have to be approved by the secretary of the Interior and ratified and amended in the same manner by which they were adopted; they can be revoked by an election called and conducted in the same manner but not unilaterally by the secretary of the Interior. Section 16 contains no provisions dealing with the form of government that can be established by a constitution and no statement that only governments based on written constitutions are valid Native American governments. On the important question of the authority to be exercised by such governments, the section states, “In addition to all powers vested in any Indian tribe or tribal council by existing law, the constitution adopted by said tribe shall also vest in such tribe or its tribal council the following rights and powers: To employ

After the Summit

263

legal counsel, the choice of counsel and fixing of fees to be subject to the approval of the Secretary of the Interior; . . . [and] to negotiate with the Federal, State, and local Governments.” In addition there is the provision forbidding the loss of Indian lands without tribal consent (noted above; see also chap. 10). This section makes it clear that the legal theory behind the ira is that Native American governments established under its authority exercise aboriginal authority not withheld from them. The ira is not the source of authority except in three instances. Finally, section 16 requires the secretary of the Interior to “advise” tribes or governments “of all appropriation estimates or Federal projects for the benefit of the tribe prior to the submission of such estimates to the Bureau of the Budget and the Congress.” Section 17 provides a similar but less detailed process by which a tribe or tribes living on a reservation can obtain a charter of incorporation. The secretary of the Interior is authorized to issue such a charter upon the request of at least one-third of the adult members of the tribe but subject to approval by a majority vote of the adult members of the tribe living on the reservation. The charter may “convey to the incorporated tribe the power to purchase, take by gift, or bequest, or otherwise, own, hold, manage, operate, and dispose of property of every description, real and personal, including the power to purchase restricted Indian lands or to issue in exchange therefor interests in corporate property, and such further powers as may be incidental to the conduct of corporate business, not inconsistent with law.” The only restriction put on such corporations is that they cannot “sell, mortgage, or lease” any land within the reservation for a period longer than ten years. Charters issued under the section cannot be “revoked or surrendered except by Act of Congress.” There are no provisions for amending or revoking charters and no statement of the source of authority of the corporations created by them. Perhaps the detailed listing of powers that might be conveyed by a corporate charter implies that the charter is the sole basis of the authority of these organizations, but no evidence from the drafting process sheds light on this. The available information about the drafting process likewise offers no insight on the relationship between constitutions and charters. In practice constitutions were adopted first, with charters being added in cases where the Native societies decided that they wanted corporate powers in addition to the authority their tribal governments possessed. There are substantially fewer charters than constitutions adopted under authority of the ira. Section 9 authorized annual appropriations of up to $250,000 to pay the expenses of “organizing Indian chartered corporations or other organizations” authorized by the Act.

264

A Fateful Time

t h e i s s u e o f c o n t r o l b y t h e b u r e au o f i n d i a n a f f a i r s As noted in chapter 7, an important set of ideas behind the draft bill was the notion that Bureau “absolutism”—unrestricted or inadequately restrained control of Indian societies by administrators—had to be reduced, without abandoning the guardianship role of the national government. A major reason for specifying procedures for Indian societies to organize governments and corporations was to reduce the discretion of administrators in organizing or controlling such governments. Reducing national control was also a major reason behind the large-scale devolution of governmental functions to Indian organizations, which the draft bill attempted to make possible. At the same time, this bill introduced the possibility of greater secretarial control in the area of resource management. The law did assign to the secretary of the Interior broad authority over forest and range management but otherwise did not significantly increase administrative control. Specifically, section 16 includes only three explicit restrictions on the authority of Indian governments. One of these, the requirement that each constitution must contain a provision forbidding the sale of Indian land without tribal consent, is obviously designed to close a possible loophole that could have led to continued loss of Indian lands; it was suggested by Indians in one of the congresses. Another provision requires secretarial approval of attorney contracts and for determining the fees to be paid under such contracts. The hearings show that the attorney section continued existing law but was opposed by Collier on the ground that it gave the administration too much power. It was included in the ira because several senators insisted on it, saying that they thought it necessary to protect Indians. Legislation going back to 1871 required that the secretary of the Interior and the commissioner of Indian Affairs approve all contracts between “any tribe of Indians” and any person, and this included attorney contracts with Indian governments.10 The draft bill listed the authority to “employ counsel and to pay counsel fees not in excess of limits to be fixed by charter provision” as one of the powers that could be included in a charter issued to an Indian community without secretarial approval (Title I, section 4g). While the secretary would have had the authority to grant the charter provision mentioned, there was no requirement of specific approval of attorney contracts or fees. In 1926, as chapter 6 has noted, Collier had suggested that a court could approve attorney contracts, if any approval was needed. However, a provision similar to the one in the draft reorganization bill had been contained in the 1932 tribal council bill proposed by Collier. In 1934 Collier explained the draft provision to the House commit-

After the Summit

265

tee and no one objected to it, but senators insisted on retaining the existing law.11 The issue was discussed in the Senate committee on May 17. By this time the provision required secretarial “review” of attorney contracts only if some member of the tribe requested it, but left unclear the extent of administrative authority to change contracts as a result of such review. The provision at this stage stated that constitutions “shall confer the following rights and powers: To employ legal counsel, the choice of counsel and fixing of fees to be subject to review by the Secretary of the Interior on application of any member of the tribe.” 12 Senator Lynn Frazier of North Dakota began the discussion on this section by asking if the term review meant that the secretary would have the authority to veto an attorney contract. Wheeler responded, “Yes; I think the Secretary of the Interior must have some veto in the matter.” He stated that Indians needed to be protected from unscrupulous attorneys: “Candidly, because, if you do not, without any reflections upon the legal fraternity, you will have some crooked lawyer go out and get these Indians perhaps to sign an agreement, and he is absolutely irresponsible, and somebody ought to have some supervision in the matter.” Senator Ashurst agreed with Wheeler and suggested that the phrase “subject to the approval” of the secretary be added. Wheeler agreed, then said that the provision allowing any member of the tribe to trigger secretarial review should be removed so that such approval would be required of all attorney contracts. Ashurst repeated Wheeler’s views about “crooked lawyers,” stating that “we cannot be oblivious to the fact that in recent years we have been confronted with evidence leading almost to a scandal of attorneys going out and getting contracts and propagandizing the tribe. . . . I think the Secretary of the Interior ought to approve such contracts, and any reputable attorney would forwith [sic], in my judgment, by first mail send a copy of his contract to the Secretary of the Interior and ask the Secretary to inspect it.” Wheeler then introduced the argument that “on the other hand, unfortunately the Indian Department has had its own pet lawyers in the past. I mean I happen to know that there has been that situation existing in the Indian Department.” Senator Frazier concurred with this, and somewhat later Wheeler said that “it is a well-known fact here that in this city it has been somewhat of a racket with some lawyers and people going out and getting cases from Indian tribes.” Collier defended the original provision of the draft bill, which was consistent with his earlier views on the question, pointing out the danger of secre-

266

A Fateful Time

tarial discretion. He said: “And we have had this kind of case, Senator, where with complete unanimity on the part of the Indian wholly reputable attorneys have wanted to represent the tribe in a matter that was contrary to the prevailing policy, and we have had the Department refuse to recognize them. They did not want them to have the case. It has happened more than once in recent years. We had the Department change the late Louis Marshall, who was unanimously representing some Pueblo Tribes.” The discussion continued over whether to allow any Indian to trigger secretarial review. Wheeler suggested that getting one member to object would be too easy, whereupon Collier proposed a petition requiring signatures amounting to 2 or perhaps 5 percent of the members of a tribe. Senator Thomas then said, “It is no trouble to get a petition” because of the many “factions” that existed within tribes; he proposed adding the requirement of secretarial approval and dispensing with any triggering mechanism. When Senator O’Mahoney suggested that perhaps secretarial approval could be limited to the fees to be paid attorneys, Thomas said that such a situation would encourage factionalism among Indians; while this would be undesirable in itself, it could also lead, he suggested, to a situation in which several competing attorneys could persuade factions to petition for contracts with them. If this happened, he said, “The Secretary will have to make his choice anyway. He will have to investigate attorneys and decide which one is the most acceptable to work with.” Senator Wheeler then suggested essentially the language that became part of the ira. Collier at this point gave in, saying, “That is existing law exactly”; he made no further objections to the change. The analysis document, as noted above, opposed requiring secretarial approval of amendments to constitutions on the ground that this would offer the possibility of excessive administrative control over Indian societies. The final provision requires such secretarial approval by specifying that the amendment process is to be carried out in the same manner as the process for creating constitutions, but nothing can be discovered about the reasons for this language. Also relevant to the issue of administrative control over Indians is the impact of the ira on land policy. Eliminating the issuance of fee patents to land to individual Indians abolished one of the most important controls bia officials had exercised over individual Indians. This was the power to determine whether individual Indians were “competent” to handle their own economic affairs and therefore entitled to the issuance of a fee patent. However, it did not eliminate bureaucratic controls over trust lands, in various forms, because there were many existing allotments still in trust status.

After the Summit

267

de finitions of tribe and indian The ira did not begin with definitions of key terms, which is customary in legislation about complex matters. However, it did define Indian and tribe, though ambiguously. Since for most purposes Indians are those who are members of Indian societies, the attempt to define such societies is important. Before the ira there had been no common agreement, among anthropologists or government officials, about which societies were to be called Indian, and the ira did not clarify the situation. Historically, Indians are the descendants of those aboriginal peoples who inhabited what became the United States when Euro-Americans arrived. However, not all aboriginal peoples were or are considered to be Indians. In 1999, for example, Native Hawaiians are still not considered to be Indians. Also, it was considered necessary to state that the aboriginal inhabitants of Alaska were Indians for purposes of the act. In many cases there are separate laws for aboriginal inhabitants of Alaska, and there are also separate laws for Oklahoma Indians, growing out of the several decades when Oklahoma was an Indian territory with societies from many parts of the East and Midwest. A separate version of the ira was enacted in 1936 specifically for Oklahoma. The ira states that it applies to “all persons of Indian descent” who are members of “any recognized Indian tribe now under Federal jurisdiction” plus descendants of such tribes living on reservations as of June 1, 1934. It also states that Eskimos and “other aboriginal peoples of Alaska” are Indians. However, the ira nowhere defines recognized. As a result, many descendants of aboriginal societies, including native Hawaiians, are not legally defined as Indians to this day. Congress has never passed a general statute establishing criteria for determining how an aboriginal society can become formally recognized as Indian, although regulations setting forth such criteria were issued in 1980. The American Indian Policy Review Commission, a congressionally mandated body which reported on the law in 1977, considered this issue. It reported that “there are more than 400 tribes within the Nation’s boundaries and the Bureau of Indian Affairs services only 289.” The situation has not basically changed since then.13 The definition does imply one important point, however. The primary means of determining who is an Indian is based on a political concept rather than a racial one. This point was central in the 1974 Supreme Court case of Morton v. Mancari, which decided that the provisions for Indian preference in employment in the ira and elsewhere are not based on race and therefore do not run afoul of the constitutional ban on racial classification.14 Another provision of the ira deals with the proper term to apply to Native American societies that are legally defined as Indian, although not in a way

268

A Fateful Time

that clarifies matters. Today some Indian societies refer to themselves as nations (e.g., the Navajo Nation, the official name for this group), while others use tribe or band. The ira most often uses tribe but offers no definition of this term, except to state that tribe means “an Indian tribe [sic], organized band, pueblo, or the Indians residing on one reservation.” This simply adds three synonyms for tribe but does not define this key term. The nomenclature for Indian societies in fact was then and is now often confusing. Several societies whose names include tribe are members of a wider group also known as a tribe. For example, there are the Pyramid Lake Paiute Tribe and the Walker River Paiute Tribe. The Southwestern Pueblos were not considered legally to be Indians until the U.S. v. Sandoval case in 1913.15 Finally, there are several situations in which the word tribe is used to designate the members of a reservation consisting of several tribes, e.g., the PaiuteShoshone Tribe of the Fallon Reservation and Colony. This is why the term society has been used primarily in this book. The legislative record sheds no light on what either Bureau officials or legislators thought about the names to be applied to Native American societies. There is more information, however, about the one portion of the ira that uses a racial means to determine who is an Indian. This is the section defining Indians, in some cases, in genetic terms, as persons containing a designated proportion of “Indian blood.” Both the draft bill and the final statute use the political definition of who is an Indian as the primary one. In practice, this means that each society determines this issue for itself. The ira contains no rule that all Native American societies much follow in making this determination, nor has the Bureau tried to impose any such definition, through constitution-making or in other ways. However, the ira also provides a means by which some descendants of Native Americans no longer belonging to recognized Indian tribes nor living on reservations may be defined as Indians. The draft bill stated that, in addition to the primary definition of an Indian, persons with “one fourth or more Indian blood” were Indians (Title I, section 13b). But the ira changed this to refer to persons “of one-half or more Indian blood.” Senator Wheeler was responsible for this change. The question first came up on April 30, at the first hearing of the Senate Indian Affairs Committee after the agreement between Wheeler and the Bureau. The issue was discussed in connection with persons who had been allotted, but no decision to change the draft provision was made.16 On the last day of the Senate hearings, the issue came up again, in the context of efforts to provide for Indians not living on reservations. Wheeler stated that he wanted to change the provision to one-half, to reduce the number of

After the Summit

269

Indians who would have to be provided land and/or services by the government. He said: I do not think the Government of the United States should go out here and take a lot of Indians in that are quarter bloods. . . . If they are Indians of the half-blood then the Government should perhaps take them in, but not unless they are. If you pass it to where they are quarter-blood Indians you are going to have all kinds of people coming in and claiming they are quarter-blood Indians and want to be put upon the Government rolls, and in my judgment it should not be done. What we are trying to do is get rid of the Indian problem rather than to add to it. In later discussion, Wheeler indicated that he was bothered by the idea of defining anyone as an Indian who was culturally assimilated. When it was brought out that the individual definition of Indian also applied to holders of allotted lands who did not live on reservations, he said that “it is perfectly idiotic in my judgment for the Government of the United States to continue to manage the property of Indians who are of the one-eighth [sic] blood.” He brought up the case of former Vice President Charles Curtis of Kansas, who was one-eighth Indian by descent. Wheeler said: “For instance, the Government still manages the property of a former Vice President of the United States. . . . Why should the Government . . . be managing the property of a lot of Indians who are practically white and hold office and do everything else, but in order to evade taxes or in order to do something else they come in under the Government supervision and control?” The senator returned to the topic one more time, saying that California Indians “are no more Indians than you or I, perhaps. I mean they are white people essentially. And yet they are under the supervision of the Government of the United States, and there is no reason for it at all, in my judgment.” These remarks indicate that Wheeler was confusing racial with cultural facts, because he assumed that having predominantly non-Indian “blood” automatically meant that the persons were almost entirely assimilated to white culture. Collier wanted the one-quarter criterion but finally accepted one-half, which was retained in the final act. r e vo l v i ng f u n d One important element in the Collier program to overcome Indian poverty— the creation of a revolving fund to make loans to Indian corporations or governments—had been advocated by him since hearings on the Klamath incorporation bill. Nevertheless, it was left out of the draft bill, a fact that probably illustrates how little he was involved in actual drafting of the measure. Collier

270

A Fateful Time

introduced it as an amendment to the draft bill in the second House hearing, on February 26, and the first Senate hearing, the next day.17 It was accepted without recorded controversy. c l a i m s l e g i s l at i o n One of the ideas suggested for many years was that legislation was needed to establish a new, streamlined procedure for deciding Indian claims against the U.S. government. No such proposals were made in the reorganization bill or other bills that were part of the Collier program, although during consideration of the reorganization bill Collier said that a claims bill would be introduced in the next session of Congress. The commissioner explained to the House committee that the problem was the cost of such a bill. He said, “We have intentionally not put that into this bill for a very practical reason. If the Government gives the Indian a square deal in the matter of his treaties and his contractual claims, the Indian is going to roll up a judgment against the United States of more than a thousand million dollars.” 18 He went on to say that it would be unrealistic to expect appropriations of this amount while a significant increase in other expenditures on behalf of Indians was being requested.

The Floor Debates The actual debates on the floor of each house of Congress are not definitive indications of congressional intent, for several reasons, the most important of which are the difficulty of determining what was actually said in debate and the fact that it was evident that what most members wanted to know was whether the bill had presidential support. But the official reports of this debate do document clear-cut and fundamental differences on ideological grounds between Senator Wheeler (and, to an undetermined extent, the committee he headed) and the Bureau of Indian Affairs. The Senate debate on the bill as it emerged from committee was scheduled for June 6, but was postponed when Senator Frederick Stiewer of Oregon objected because an amendment he wished to make was not yet ready. The only actual debate on the bill took place a week later, on June 12.19 The lack of importance of Indian policy to most people is indicated by the fact that the New York Times did not attempt to report the actual debate on the bill. Instead, its article on the events of this day mostly referred to comments President Roosevelt had made in his letter of support and quoted, in their entirety, the seven goals of the bill contained in the report by the Senate committee. The lack of understanding of the bill is indicated by the fact that the first sentence of this article describes its principal purpose as providing a revolving fund “to make

After the Summit

271

loans to Indian tribes.” While other parts of the bill were noted, this article reported incorrectly that Indian preference in hiring would open employment to Indians in the Indian Service, “which has heretofore been closed to them.” 20 The report of the June 12 debate in the Congressional Record indicates that Senator Wheeler began with a brief statement that the bill had the approval of the bia, the Department of the Interior, and the Bureau of the Budget. He then said, “The President himself has sent a letter stating that he desires to have the bill passed.” Wheeler, as floor manager for the bill, dominated the debate, although he did not always prevail. For reasons noted below, it is impossible to be sure that the Congressional Record provides an accurate account of the debate. It is assumed here that in this case the words reported were actually said on the floor, because Wheeler’s remarks were not extensive, they are similar in language to his numerous comments during Senate hearings, and they reflect basic viewpoints consistent with his known positions on many questions. Wheeler started by asserting that the bill’s chief provisions were the land and organization proposals. He said that one purpose of the bill was to halt the loss of Indian lands and to provide new lands for Indians. The provisions dealing with constitutions and charters of incorporation were mentioned next. Wheeler said that the purpose of the self-government section was to stabilize the tribal organization of Indian tribes by vesting such tribal organizations with real, though limited, authority, and by prescribing conditions which must be met by such tribal organizations. This provision will apply only if a majority of the Indians on any Indian reservation desire this sort of organization. As a matter of fact, however, it does not change to any great extent the present tribal organization, except that when a majority of the Indians want to establish this tribal organization and extend the provisions of the bill to it, they may do so. On the incorporation section, Wheeler said that “the bill also provides that Indian tribes may equip themselves with the devices of modern business organization through forming themselves into business corporations.” Again, he noted that this would happen only when a majority of the Indians on a reservation desired to move in that direction. Wheeler also mentioned the revolving credit section, the educational provisions of the bill, and the Indian preference in employment provisions. He then went on to assert that, although there had been “compulsory” features in the original proposal, “there is nothing in the bill as presented to the Senate which in any wise gives the Department of the Interior the right to impose its will upon the Indians on any reservation.” He explained that this meant that the establishing of tribal councils and corporations was entirely voluntary and that

272

A Fateful Time

the Committee on Indian Affairs “eliminated from the bill as originally presented the right of the Indians to make laws upon the reservations.” Wheeler closed by saying that he thought the eventual goal of Indian policy should be “to abolish entirely the Indian Bureau” and that “this bill is a step in that direction by seeking to impose [sic] upon the Indians self-government in their own affairs. I hope that the bill will pass.” No other senator discussed either the purposes of the bill or any major section of it. Senator Ashurst of Arizona took up the largest part of the Senate debate on the measure by insisting strongly on an amendment to reverse Secretary Wilbur’s 1932 withdrawal of the Papago Reservation from mineral development. Wheeler insisted both that a provision of this nature was irrelevant to the bill and that Ashurst’s motion was wrong on the merits because “if these lands were all thrown open to mining claims . . . what they would do would be to go in and stake out the mining claims and virtually take the reservation away from the Indians.” In spite of this vigorous opposition, Wheeler finally accepted a modified Ashurst amendment that specifically “revoked and rescinded” Wilbur’s decision in the Papago case; the amendment was accepted without a roll-call vote. A similar controversy involving non-Indian access to Indian resources led to an amendment to the bill. Senator Clarence C. Dill of Washington objected to a section providing that reservation lands that had been declared surplus and opened for purchase as part of the allotment law would be returned to tribal control. Dill explained that in at least some of the reservations the surplus lands included some owned by whites, and “these white men who have taken up their homes, homesteaded them, and own them, will find themselves set down in a closed Indian reservation.” He insisted that other white men should continue to have an opportunity to buy portions of these lands. Dill’s statements were little changed from some of the justifications put forward for the allotment system in the 1880s. He said, for example, “For years and years Members of Congress from Western States have made a long fight here to open Indian reservations to settlement and to make it possible to use these lands that the Indians never did use . . . and will not for generations to come.” Again, Wheeler’s opposition to this resolution was vigorous. He asked rhetorically: “Is there anybody in the Senate who wants to take that land away from these Indians, and sell it to some white man who may never use it, and turn the Indian children out to be paupers? I cannot conceive of anyone wanting to do that.” But again he lost, although only partially; the Senate accepted by voice vote a Dill amendment that continued to authorize the secretary of the Interior to return such surplus lands to tribal control but not compel him to do so.

After the Summit

273

Senator O’Mahoney of Wyoming asked whether lands within Indian reclamation projects would be closed to non-Indians by the bill. Informed that they would be, he asked for an amendment to allow lands within such projects to continue to be available for purchase by non-Indians. Wheeler agreed initially to such an amendment applying to reclamation projects containing both Indian and non-Indian landowners, but not to those that were solely Indian, but then accepted an O’Mahoney amendment applying to “any reclamation project heretofore authorized in any Indian reservation.” Only one other amendment offered raised substantial issues. Both Nevada senators asked if the bill contained anything about water rights and were not satisfied with the answer: “It leaves all the water rights just exactly as they have been in the past.” Senator Patrick McCarran insisted on an amendment that state laws governing water would apply on Indian reservations, but Wheeler was able to persuade him to accept a provision stating that the act did not amend or repeal “the laws relating to the use of public waters” on Indian lands. This provision was dropped before final passage. Other minor amendments were offered, and some were accepted, but no one disputed the tribal government or incorporation provisions, and no one but Wheeler talked about the basic ideas behind the bill. Senator King of Utah, who had earlier cooperated closely with Collier, asked whether what he had been told about the bill—that it was designed to “perpetuate the Indian Bureau”—was true. When he was assured by Wheeler that “there is not a provision in this bill which superimposes upon the Indians bureaucratic control from Washington,” King said nothing further during the debate. Senate approval was by voice vote without a roll call. When the conference committee report was presented on June 16, it was also agreed to by voice vote. There was no explanation of the report or debate on it; Senators Ashurst and O’Mahoney merely wanted to be assured that their amendments were still in the bill.21 Initial House debate on h.r. 7902 took place on June 15. Representative Howard began with a six-and-one-half-page statement on behalf of the bill. Its style and viewpoint indicate that it had been prepared in the Bureau. Unfortunately it is impossible to tell how much of this statement was actually read on the floor, because members possessed the privilege of “revising and extending their remarks”; they could include material they had omitted in the interests of brevity or even alter what they had actually said. Howard asked, and received unanimous consent, for everyone involved in the debate to “revise and extend” their remarks. It is assumed here that this long statement reflected the views of the Collier-led Bureau, although it is important that Howard was willing to read at least parts of it and be associated with it.22

274

A Fateful Time

The statement began with an assertion that the duty of the national government to exercise guardianship over the Indians was a “sacred trust” but that this trust had been violated by past policy. The allotment system had brought about the loss of more than half of the Indian lands that had been theirs in 1887—a decline from 137 million acres to 47 million acres. Moreover, allotment had made “virtual paupers” of the Indians, with the result that the Indian death rate was twice as high as the nation’s. Indians were also subjected to the “absolutism” of the Bureau. The deliberate destruction of Indian governments was listed as one of the bad effects of the allotment policy. “With the disintegration of his tribal and clan organizations, the Indian has come to have less and less control of his own affairs. . . . Most existing tribal councils are permitted purely by sufferance, not through any legal, guaranteed right.” A positive valuation of Indian cultures is strongly stated in this document. After saying that government policy for many years had been directed at forcing “the Indian to give up his own beliefs and views of life, his languages and arts and customs, and accept those of the white man,” it goes on to say: “In permitting and encouraging the destruction of everything that was uniquely Indian, whether art or language or social custom, mythology or religion, or tribal and clan organization, the Government has not only destroyed a heritage that would make a colorful and priceless contribution to our own civilization, but it has hampered and delayed the adaptation of the Indian to white civilization.” The two chief purposes of the bill were then stated to be “land reform and in a measure home rule.” In discussing the self-government provisions, the emphasis was on corporations. The purpose of the section authorizing establishment of such corporations was said to be “to encourage Indian enterprise in agriculture, mining, lumbering, fishing, and other types of business, and to give tribes or groups the necessary legal rights and powers to conduct such enterprises.” It said that such corporations would stimulate “Indian initiative and self-support” but would also “go far in breaking down the dictatorial powers of the Federal Government over Indian property and activities.” Of the provision dealing with Indian governments, it was said that the section gave “grants to Indians still living in a reasonably compact community the right to organize for their common welfare, to adopt a constitution and bylaws, and to elect a tribal business committee.” Howard asserted that “all compulsory features of the original measure have been omitted” and that after a “few Indian tribes” had asked to be exempted from the act, it was amended so that it would not apply on any reservation in which the Indians had voted against it. The ultimate goals of the policy were said to be to increase Indian land holdings and to make “the Indians, as a group, self-supporting through agriculture, livestock growing, forestry, and other rural pursuits.” The key assump-

After the Summit

275

tion of the tribal alternative was clearly stated: “It seeks the functional and tribal organization of the Indians so as to make the Indians the principal agents in their own economic and racial salvation, and will progressively reduce and largely decentralize the powers of the Federal Indian Service. In carrying out this program, the Indian Service will become the adviser of the Indians rather than their ruler.” The continuation of the obligation of the national government to exercise “guardianship” over Indians was clearly stated, but it was asserted that “the guardianship envisaged by the new policy will constantly strengthen the Indians, rather than weakening them.” The statement asserted that the goals of the reorganization bill were “real assimilation of the Indians into the American community on the level of economic independence and political self-respect. The so-called ‘assimilation’ of the past has been largely the Federal abandonment of pauperized and landless Indians to make their own way, as best they might, in the white community.” The new approach, it was predicted, would “permit increasing numbers of Indians to enter the white world on a footing of equal competition.” The claim also was made that the president was “strongly” for the bill and that “the Indians are overwhelmingly in favor of it.” The latest report tabulating Indian attitudes for and against the bill was included with the statement. Representative Howard’s statement that the president wanted the bill passed was actually made in debate; members responded to it. Howard had earlier said that there was no minority report on the bill because all members of the Indian Affairs Committee had agreed on it. When a representative who was not a member of this committee remarked, “I see from the report that this has the endorsement of the administration,” Howard replied: “And a special appeal in behalf of a wonderful man in the world has been made on various occasions. I do not like to mention that fact because I want this bill to pass on its merits, and I do not want anybody to vote against the bill simply because President Roosevelt thinks it is a good bill [Laughter and applause].” Howard had read the president’s second letter of endorsement into the Congressional Record on May 1. The significance of the president’s support for the bill is also evident from a remark made by Representative Vincent Carter of Wyoming, who coordinated the Republican side of the floor debate on the bill, on June 15. Carter suggested that the president had not been familiar with the changed bill and that Representative Howard had put his letter in the record “to intimidate the Members of this House by saying, ‘You have heard your master’s voice; now dare vote your political convictions’ [Applause].” A major theme of the House debate was to emphasize how different the bill before the House was from the original draft. Various members of the Committee on Indian Affairs attacked the original bill and stated or intimated that

276

A Fateful Time

their committee had replaced it with an entirely different one. For example, Representative Thomas O’Malley of Wisconsin said, “I wish to say for the benefit of the gentlemen who have opposed this bill on the Republican side, that when the bill came before our committee in its original form, 56 pages of it, I was bitterly and unalterably opposed to it. Those of us who were opposed to some of the bad features finally cut it down to what it now contains, and in its present form I can see absolutely nothing but good for the Indians of our country from the revised legislation.” Another member of the committee, Representative Theodore Christianson of Minnesota, said that the bill in fact was written by those who “objected most strenuously” to the original bill. Representative Werner also said that the bill before the House “was written by a majority of the members of the committee who vigorously opposed the widely publicized Wheeler-Howard bill, and who today would oppose the Wheeler-Howard bill as originally presented to our committee if it was before the House.” Representative James A. Frear of Wisconsin, Collier’s first legislative ally, said, “As I understand it, the bill in its earlier form as introduced had the same principles as the bill now awaiting a vote. What have been changed are the details and the mechanisms of the bill, but not the principles of the bill, and that, I understand, is why the President, by personal letter, Secretary Ickes, and Indian Commissioner Collier are urging the pending bill just as earnestly as they favored the original draft.” Frear was not a member of the Indian Affairs Committee in this Congress, but Collier had written him on June 15 and 18, advising Frear of arguments he could make against charges by “various lobbyists” that the bill “establishes a new tyranny over Indians.” In the earlier letter, Collier gave this description of the self-government provision and indicated that it applied also to the one authorizing the formation of corporations: Under existing law, Indian tribes have organized, functioned, and possessed authority merely through the generous sufferance of the Commissioner of Indian Affairs. He could prevent them from organizing, force them to disband when they did organize, and ignore them while organized. Thus, Indian ability for self-protection has been killed at the source, because organization is a prerequisite to power. If this bill be passed, hereafter no tribal organization formed by the procedures set up in the bill can be disbanded except by its own choice and action.23 The tactic of attacking the original bill and claiming that the replacement had met all objections may have been effective with some members. On May 22, Representative William W. Hastings of Oklahoma, who said that he was “an enrolled member of the Cherokee tribe,” had attacked the original bill

After the Summit

277

from a position compatible with both the forced assimilation and administrative reform ideologies. He had defended the basic idea of allotment, although he asked that new lands be purchased for individual Indians and maintained in trust status, and he was opposed to the self-government provisions of the bill on the grounds that Indian governments had been abolished long ago and that Indians should be subject to state and local laws. But he had favored the Indian preference provisions and increased appropriations for health and education. At the time his statement went in the Record, Representatives Peavey and Greenway, both members of the Indian Affairs Committee, had told Hastings that the bill had been drastically amended in committee. In the floor debate on June 15 Hastings, while he did not speak in favor of the bill, noted that extensive revisions had eliminated most of the provisions to which he had objected, and he voted for it.24 The fact that the bill was greatly changed from its original form was also used to attack it during the brief debate in the House. Representative Carter alluded to a statement Collier had made to the Rapid City congress, in which he said that he would ask the president to veto the bill if it were changed “into something else which does not do what we are telling you.” Carter suggested that if Collier were to “keep his word with the Indians” he would have to ask Roosevelt to veto the new bill. The strongest criticism of the bill came from representatives who said they were acting on behalf of Indian groups in their districts. Two New York representatives led the attack. Alfred F. Beiter on June 12 had said the bill was bad for New York Indians; he inserted in the Congressional Record statements in opposition from Ray W. Jimerson of the Seneca Nation of Indians and from Alice Lee Jimeson of the Seneca Nation; Jesse Lyons, the chief of the Onondaga Indian Nation; and Joshua Jones, the chief of the Six Nations Confederacy. But Beiter also included statements from Joseph Bruner, an Oklahoma Indian who was bitterly opposed to Collier’s plans because he favored assimilation, and from several representatives of the Mission Indian Federation in southern California.25 In his statement in the Record accompanying this letter, Beiter claimed that the bill would segregate Indians, violate treaty rights, and increase the authority of the Bureau of Indian Affairs. He returned to these themes during floor debate on June 15; however, for the most part he was quoting the bill as it was introduced. On June 15 Representative Daniel A. Reed of New York introduced a letter in opposition from Ray W. Jimerson, which was also based on the original bill. Laurence Hauptman notes that the Iroquois, particularly those living in New York, were hostile to the Indian New Deal from the beginning, partly because they had been accustomed to dealing with the state of

278

A Fateful Time

New York but mostly because they based their political views on sovereignty arguments rooted in several treaties; the New York Iroquois and the Collier administration did not understand each other.26 Representative Walter M. Pierce of Oregon stated on June 15 that the bill was opposed by Indians in his state, and he entered into the Record several letters of opposition from Oregon Indians, although he also put in letters from Bruner and the Mission Indian Federation.27 Howard’s response to the assertion that some Indians opposed the bill was that the bill was permissive; Indians were to be given a chance to vote on whether or not to accept it, and in any case would incorporate or organize Indian governments only if they wished these things to happen. Howard said clearly that no tribe “will be forced to come under its provisions unless a majority of that tribe shall by vote request to do so,” which is not strictly accurate, since the provision is worded negatively. Several statements during the House debate made it evident that the bill offered a new direction in Indian policy, even if the introductory statement was not read in its entirety. Representative Clyde Kelly of Pennsylvania had attacked the bill because it would end allotment. In response to this, Frear said that Kelly was “correct when he states . . . that the Wheeler-Howard bill is a reversal of established policy.” Frear then went on to make his remark, quoted above, that the “principles” of the bill were the same as those behind the draft bill. Representative Samuel Dickstein of New York asked Howard if the bill “proposes to create self-government for certain Indian tribes” and was told that it did. Representative Carl E. Mapes of Michigan introduced a statement opposing the bill from “a group of missionaries from the Presbyterian, Baptist, and Christian Reformed Churches to the Indians in New Mexico and Arizona.” No amendments were offered in the House; whether the Rules Committee had permitted any to be offered is not known. When the debate was over, a division of the House approved the bill by a vote of 95 to 30. However, when Republican leader Vincent Carter pointed out that a quorum was not present, a roll call vote was taken, in which 258 representatives voted for the bill and 88 voted against it; one member voted “present,” and 82 members did not vote. Since this was more than a two-thirds majority (75 percent of those voting) the rules were suspended and the bill was approved without further proceedings.28 This roll-call vote, the only one on the bill in either house, was highly partisan. Over 89 percent of the Democrats voting (223 out of 249) supported the bill, as did all four of the Farmer-Labor Party members from Minnesota, who were allied with the majority party. Just under 67 percent of the Republicans (62 of 93) voting on the bill were against it. Analysis of the deviant votes suggests the importance of factors affecting state delegations. Most striking is the

After the Summit

279

fact that 17 of the 26 Democrats who voted against the ira were from New York; of the remaining 9 deviant Democratic votes, 4 were from Indiana congressmen. While the Republican deviant votes were more scattered, again there is a suggestion that state delegations were important; of the 31 Republicans who voted against the bulk of their party, 7 were from California, 4 from Kansas, and 3 each from Illinois and Wisconsin. The partisan nature of House treatment of the bill, especially on the Democratic side, is less evident from an examination of the party membership of persons speaking for or against the bill. Of nine Representatives who spoke for it, seven were Democrats. However, of five who spoke against it, only two were Republicans. In other words, seven Democrats spoke for and three against, while two Republicans spoke for it and two expressed opposition to the bill. A conference committee had been appointed on June 15; when it made its report the next day there was again debate, but no new themes. Again, a principal argument made by the supporters of the bill (led by Representative Ray E. Ayers of Montana) was that it was not the original proposal. Ayers said, “I am confident that this was never Wheeler’s or Howard’s baby—it was laid on their doorstep, and they have cast it off and brought forth legitimate offspring.” Ayers said that the bill makes “everything optional with the Indians, while in the original bill everything was mandatory.” He referred specifically to the incorporation and tribal government provisions.29 The conference committee report was agreed to in both houses without a roll-call vote. The New York Times did not report the debate in either house. On the Senate side, the bill passed in a long session (lasting until 11 p.m.) after it was reported that President Roosevelt and Senate Majority Leader Robinson had agreed to seek adjournment of the session the next day. According to the Times, in the drive to adjourn the House approved five major bills. One was the Wheeler-Howard bill, again described as a bill whose central purpose was the establishment of the revolving loan fund, although it briefly listed other spending authorizations in the bill.30

Conclusions In determining the final form of the ira, after the introduction of Indianproposed amendments and the Wheeler-Zimmerman summit, the congressional committees made meaningful decisions. Among these was the determination of the persons to whom the statute would apply. At the most basic level, the ira states who is an Indian and how the word tribe is used in the statute. There is no indication that this question was debated in either committee or on the floor, except for the minor question of how to

280

A Fateful Time

include a genetically based method for determining who was an Indian, for a few individuals who were not Indians because they were members of societies not recognized by the U.S. government as Indian. But also, there was no clarification of this issue. One important effect of the decision to base Indian membership primarily on political rather than racial criteria was that, in most cases, the definition of what constituted such membership was to be made by each Native American society. The U.S. government would go on deciding which Native American societies were Indian, but after that the Indians decided the question. But the question of whether particular Indian societies could refuse to have the ira applied to them was the subject of much controversy. The draft bill had excluded the New York Indians; while this was dropped from the final bill, the Indians of Alaska and Oklahoma were excluded specifically from key sections of the act, and the section dealing with possible acquisition of tribal lands from individual Indians did not apply to the Klamath Reservation. In the case of Oklahoma, the reason for this exclusion was opposition from Oklahoma Senator Thomas, who sat on the Indian Affairs Committee. Why Alaska was not included is not clear. The extent to which these exclusions were the result of Indian input in either case is not apparent from the record. The most important engine of exclusion, however, was the provision requiring an election on each reservation within a year of passage of the ira. This provision, the details of which were disputed on several grounds, clearly was developed because members of the House and Senate were hearing of Indian opposition to the bill and responding to these views. Giving any reservation or tribe the right to exclude itself from the benefits of the ira was an important step, and clearly shows congressional support for the notion that Indians should have the right to decide this important issue. Another basic change was the substitution of the original notion of a single charter, which might contain many different possibilities, in favor of separate processes for adopting constitutions and a more restricted kind of charter. There is little in the record to explain this change. Nothing, however, supports the notion that either the draft bill or the ira contemplated a process for adopting written documents that was intended to apply to all Indian societies. The draft bill’s provisions for constitutions that could be issued to portions of reservations were also dropped. The provision stating that the authority of Indian governments taking advantage of the constitution and charter sections was the structure of existing law was a carryover from the language proposed by John Collier during consideration of a tribal council bill in 1932. It was present in the draft bill and there is no indication that any senator or representative made any effort to delete or change it.

After the Summit

281

The ira specifically states only three areas of authority an Indian government might exercise. These are the employment of counsel, the duty to prevent loss of tribal lands without tribal consent, and the right to “negotiate with the Federal, State, and local Governments.” This fact, combined with the explicit reference to the source of authority as existing Indian law, requires the conclusion that Congress had no intention to determine in general for Indian societies how they would exercise the authority they already possessed. The draft bill enumerated many areas of possible authority, but this list was dropped before the bill became law. The provision requiring secretarial control of the right of Native American societies to employ attorneys was a limitation on Indian sovereignty that was opposed unsuccessfully by Collier. However, it merely continued previous law. The extent to which committee deliberations and congressional floor debates provide the answers to the question of the nature of the ultimate goals of Indian policy and the ideologies incorporating these goals will be discussed in the final chapter.

Chapter Ten Conclusion

The background and detailed legislative history of the Indian Reorganization Act have presented a complex picture not easily reduced to a few simple conclusions. Before attempting to do just this, however, a few remarks on what has been learned about this topic in a general sense are in order. One theme running throughout this book has been that, at the national level, the making of governmental policy in this area involved primarily a small group of bureaucrats, elected officials, private persons outside the government, and Native American governments and societies. The sea change initiated by the 1932 national election made it possible to pass a major statute changing Indian policy in several fields. At the national level, however, such policy remained a minor matter to important leaders. Most legislators and leaders of the New Deal were ill-informed about it and involved only in insignificant ways. The measure cleared both houses of the Congress primarily because it was endorsed by President Roosevelt, whose own knowledge about the content of the bill was limited. In the second year of his presidency, Roosevelt had the authority to command consent from Democrats without challenge. There is no evidence that more than a handful of legislators knew or cared what the bill contained, as Collier once admitted, somewhat imprudently. Another underlying theme is that major change in overall policy took place against a background of limited and inadequate information on important questions—matters at the heart of the change that occurred— on the part of even key players. This is most apparent when one asks what the status of Native American governments was at the time of this vote. No one involved in the process knew the answer, not even Indian Commissioner John Collier, although he and others assumed they did. Collier repeatedly stated that he thought that, apart from a few Native American societies he knew about personally, most Indian governments had disappeared by the late 1920s and early 1930s. He thought a vacuum in governance existed on most reservations. There is no convincing evidence to support this conclusion, but even today a comprehensive picture of the actual status of Indian governments around the country at that time cannot be drawn with precision. 282

Conclusion

283

No doubt the same condition prevailed in other areas of Native American life, but the misconceptions about Indian governance were central to the reform effort that became successful in 1934. The uncertainty at the time on this question is mirrored today by the uncertainty about the impact of the Indian Reorganization Act on Native American governance, although this topic is not dealt with here. In both of these respects, Native American policy was not unique. Another problem in interpreting the events chronicled here, which is also very important but not unique to Indian policy, is the difficulty of knowing precisely and fully what was in the heads of major participants while they were engaged in enacting this law. Even after having gone through several feet of documents giving details on the drafting, early reception, and passage of the measure that became the Indian Reorganization Act, it is impossible to be completely certain what even the major players thought they were doing in the wider terms in which Native American governance has been discussed here, let alone in terms of how their actions affected the regimes and practices of hundreds of Native American societies.1 The problem stems partly from the possibility that key players may have been in some sense not completely honest in what they said about their actions. This is an inherent problem of democratic government, because voters typically expect their representatives to be men or women of principle who at the same time do what the voters want them to. It is my opinion that John Collier did not lie, but neither did he present his total view of Native Americans prior to his retirement as Indian commissioner, years after the events chronicled here. Even then, he gave versions of several important events that do not stand up well when looked at more comprehensively. Nevertheless, I have concluded he was correct when he said that he did have a “complex of central purposes,” which remained basically stable over his lifetime and out of which his work on behalf of Indians evolved. These derived in part from religious experiences, which he had expressed publicly only in partial terms before he became commissioner, as well as from conceptions of the nature of American life overall, which he had expressed incompletely during his long career as an advocate of Indian causes before 1933. Nevertheless, there is no reason to doubt that he valued Native American religion and social structure highly and wished passionately to preserve both. However, Collier changed his views about how to accomplish this end; brilliant as he was, he still needed to learn from experience. Because he was fascinated by Native American religious views, he was unusually open to learning from this source. Because he wrote and spoke voluminously and was an

284

A Fateful Time

intellectual (in the sense that he habitually thought in conceptual terms transcending the particular events with which he was concerned), we know more about his views than we do about those of any other major player in the events described here. But even in his case it is necessary to make some assumptions going beyond matters discussed specifically by him and that have survived in the available record. Senator Burton K. Wheeler also played an important role in passage of the ira, even though his actions were of decisive importance only after the bill was introduced. We know quite a bit about the views of Wheeler, and his ideas are given more attention below. But knowledge of the fundamental conceptions of other senators on the key Committee on Indian Affairs is much more limited. Evidence about the conceptual patterns that influenced House players is even more sparse. It would be unwise to identify the extensive statement supposedly made by Representative Howard and recorded in the Congressional Record on the principal day of floor debate over the ira bill as expressing his views. We do not know how much of the printed text was actually said that day. But most of what is attributed to him was almost certainly written by someone in the Bureau of Indian Affairs; undoubtedly it reflected Collier’s views rather than those of Representative Howard. Of all the other members of the House (besides Howard) who were involved in the events described here, we know the most about those of Representative Frear of Minnesota, because he had worked with Collier for several years. But Frear was not a member of the Committee on Indian Affairs during the 73d Congress and so could not have been of central importance at the point at which House members could influence the content of the bill. There is a great deal of material—summarized earlier in this book—about what many Native Americans thought of the various drafts of the bill. However, these documents say little about the fundamental beliefs of people who were writing or speaking about the ira. This is important because many, probably most, Native Americans at this time operated within complex cultural paradigms differing in significant ways from the pictures in the heads of nonIndian players. It would be hazardous to take their statements on the ira as sound indications of these wider beliefs, although whether they supported or opposed the bill is reasonably evident. In addition, Indians certainly knew much more about the situations of their peoples than anyone else involved. To place their comments in an appropriate context is more difficult than in the case of the non-Indian actors. It is also apparent that most Indians, especially in early 1934, knew much less about the content of the various forms of the bill as it progressed from introduction to passage than did the players in Washington, in spite of the Jan-

Conclusion

285

uary 20 memorandum and the subsequent congresses held around the country. For example, few outside members of the two Indian Affairs Committees knew that there were two substantial revisions of the original draft bill before final passage. It is certain that most Indians did not know of the summit meeting between Wheeler and Zimmerman; there is also no reason to believe that they knew of the detailed revisions of the bill that determined its final form after this summit. One reason for this lack of information in Indian country was that there was at the time no national organization of American Indians with significant membership and representation from a large number of the hundreds of separate Indian societies. Such an organization probably would have kept Native Americans better informed.

Specific Conclusions about the ira Nevertheless, several conclusions can be drawn about the legislative history of the ira. It is worthwhile to discuss first some previous explanations for the ira, which must be largely rejected for reasons detailed earlier in this book. The attempt to explain the ira as originating from the Meriam Report is not very persuasive. This important study, which was widely acknowledged as in some sense authoritative, was important in crystallizing a near-consensus, among the friends of the Indians, that previous Indian policy had been a failure. The report showed convincingly that the allotment policy had resulted in massive losses of Indian land without bringing about the complete assimilation of Native Americans to general American society—the heart of the forced assimilation ideology. But the Meriam Report did not clearly identify reasons for the failure of forced assimilation, nor did it offer a comprehensive strategy to replace the failed ideology underlying previous policy. Donald T. Critchlow has pointed out that John Collier reached this conclusion in his first response to the report.2 Moreover, despite occasional comments to the contrary, the chief ideology behind the Meriam Report was the structure of ideas called here administrative reform, not the tribal alternative. In spite of occasional statements to the contrary, the Meriam Report was not anything like a blueprint for the ira, although it contributed to the likelihood of the ultimate passage of some kind of major reform legislation. Neither were the 1929 letters that Collier and Matthew K. Sniffen had persuaded Commissioner Rhoads to send such a blueprint. They raised the issue of allotment and proposed study of incorporation but again lacked any overall notion of the reasons why Indian policy should be changed and did not

286

A Fateful Time

propose strengthening Indian governance or include other elements of the tribal alternative. The suggestion that the Rhoads-Scattergood administration was a kind of early Indian New Deal does not hold up well either. This administration believed in administrative reform as a way to improve the lot of Native Americans, and in its first two years did substantially increase expenditures. However, the deepening of the Great Depression reversed these efforts. As the failure to pursue the modest ideas expressed in the 1929 letters demonstrates, Rhoads and Scattergood saw no need for significant change; they were even reluctant to reorganize the central office of the bia. In the field of Indian governance, Rhoads and Scattergood continued the earlier practice of arbitrary de facto “recognition” of selected Indian governments, without any overall rules for doing so, and resisted efforts to pass statutes to allow incorporation of tribes or systematic organization of tribal councils. Scattergood, at least, opposed Collier’s later reform efforts. The commissioner and assistant commissioner were decent, philanthropic, and hardworking, but they did not share the goals of reformers, especially Collier. It is also evident that calling this important statute the Wheeler-Howard Act is seriously misleading, which is why this book has denominated it the Indian Reorganization Act. The Bureau of Indian Affairs made no effort at all to involve members from either house in the drafting of the measure. They did not even consult Wheeler and Howard, the chairs of the two committees that would hold hearings on the bill and make recommendations to the Senate and House on its fate. The resulting act is of course influenced by the views of the alleged authors of the bill and those of other members of the committees that decided the fate of the bill, but these were in reaction to the draft sent to them and subsequent initiatives taken by Indians and the Bureau, responding to Indian concerns. Moreover, the record does not show that Representative Howard influenced significantly the final content of the act, except in one crucial area. He contributed to its eventual passage by acting as a loyal Democratic committee chair who worked for the bill, whatever its form, but this is a different question. Representative Howard’s sole identifiable contribution to the content of the measure was to follow up and take as his own the suggestion that the bill contain a provision stating that it would not apply to any society that had voted against it. Likewise, while several statements were made by various representatives during congressional debate that the Indian Affairs Committee had rewritten the original proposal from the Bureau, there is no evidence that this committee did more than react in minor ways to drafts brought to it from the Bureau,

Conclusion

287

except for the important issue of whether the Indians were to be allowed to reject the statute. Other members of the Senate than Wheeler contributed little to the bill, and none, so far as we know, dealt with its most important elements or made any change in its primary provisions. Graham D. Taylor, in his initial article on the ira, stated that the act represented “a compromise between the views of reformers in the Bureau of Indian Affairs and the Western interests represented in Congress.” 3 Although he offered no documentation for this assertion, this must refer to the changes sought and sometimes made by various Western senators, most of whom were members of the Committee on Indian Affairs. The most conspicuous examples of this influence on the bill were Senator Ashurst’s successful additions to it. He insisted successfully that the act contain a prohibition of further additions to the Navajo Reservation without a specific new statute and that the decision by Secretary Wilbur during the previous administration prohibiting non-Indian prospecting for minerals on what was then the Papago Reservation be reversed. While this was a blatant example of a senator representing a few non-Indian constituents in amending a general Indian law, it was of importance only to these would-be exploiters of Indian assets and the Papago society. The various other amendments by Western senators attempting to create privileges for non-Indian constituents either were not included in the final act or were minor in nature and did not affect the basic provisions of the statute. It is indisputable, however, that Senator Wheeler played a very important role in determining the final form of the ira, although in doing so he was not representing Western interests. After strong opposition from the Senate Committee on Indian Affairs to the original draft (extending to failing even to hold hearings for two months) and Collier’s signal that “we are not prepared to assert that this is the bill,” Wheeler held an important though secret meeting with Assistant Commissioner Zimmerman in which he in effect dictated the deletion of significant portions of the original draft bill. Three of these deletions were of major importance. One was to drop entirely the title that would have created a new federal Indian court. A second was to remove entirely the portion of the original proposal calling for progressive delegation to Native American societies of federal programs affecting Indians, without alteration of the trust status of these societies (referred to at the time as the guardianship responsibility of the federal government). The third was to abandon the clumsy and untried notion of issuing charters that could provide for everything from constitutions to documents establishing cooperative organizations, and to issue such charters to reservations, portions of reservations, and new societies where new trust lands were acquired. In addition to

288

A Fateful Time

these matters, Wheeler forced Collier to accept secretarial approval of the selection and payment of attorneys by Native American societies. During the Wheeler summit and shortly thereafter this powerful senator agreed to include in the bill the germ of most of the original ideas behind the draft bill, however, as well as a number of proposals from the Indian congresses. The specific language that simplified the complex original draft language came from the Bureau—probably at least Felix S. Cohen and/or Melvin Siegel, and at most Collier and his top policy team. Most of the important portions of the ira that survived the WheelerZimmerman summit had been part of the original draft bill in principle, conceptually. Representative Frear, primed by at least two letters sent to him just before the House debate by Commissioner Collier, said as much on the House floor, and he was correct. In other words, within Congress the two principal actors were Commissioner Collier—backed up by the Cohen and Siegel legal team and a handful of top bia officials—and Senator Wheeler. They were the persons most responsible for the actual content of the ira as it was enacted into law. The act might have been more accurately called the Collier-Wheeler Act. In order to understand the meaning of the ira, therefore, we need to go over more closely the views of these two actors and relate them to the meaning of the statute. Before doing so, however, the third major force in determining the content of the ira must be mentioned. This was the total effect of actions by significant numbers of Native Americans and/or their governments. Until the January 20 memorandum to “the field,” Indians had not been any more involved in the process of drafting the bill than members of Congress had been, but afterward their reactions and input were decisive. Their negative reaction following the January 20 memorandum had imperiled the bill, and the reversal of Indian sentiment brought about by the congresses cleared the way for passage of some kind of major Indian reform bill. Moreover, Indian responses to the draft bill led to the decisive change making it clear that at least the self-government provisions were not mandatory but permissive.

Ideologies of the Major Players Examining the views of John Collier is the appropriate starting point. His decision to try for an omnibus bill that would make major changes in many aspects of statutory law affecting Native Americans set in motion the complex events leading to the ira, and his persistence saw the matter through. To give him his due, it should be noted that in spite of his failure to involve Indians in

Conclusion

289

the drafting process, Collier’s views had been shaped by active involvement on behalf of the Pueblos, the Flathead Indians, and several other Native American groups. He believed sincerely and deeply that he was working on behalf of Indians in attempting to reform Indian statutes and that this was what most Indians wanted, although initially there was a paternalistic element in this commitment. But two other things are apparent about Collier’s contribution. Surprisingly, given his years of vigorous activity on behalf of Indians and the reform platform he had developed and for which he had secured significant support in 1932, the bill he proposed to Congress contained several approaches unlike anything he had suggested before or that had been considered by Congress. It seems that this result can be explained by two factors: He (as well as Solicitor Margold) must have been busier than he had expected to be, and his early commitment to relying on “expert” opinion led him to rely heavily on several people—from Ward Shepard and Robert Marshall to Felix Cohen and Melvin Siegel—who lacked significant previous experience with Indian affairs. The result was a bill that evoked widespread opposition in Congress and in Indian country, almost destroying Collier’s chance to get major legislative change. In addition, Collier made a serious error by not initially asking Indians to help in deciding how to promote their interests through an omnibus bill. Both anthropologists and “friends of the Indians” were consulted about ideas for legislative reform before Felix Cohen persuaded him to consult Indians. As soon as they learned of the ideas behind the draft bill, however, many Indians did not hesitate to say what they thought of it. Most were opposed to what they thought the bill contained or were not well-enough informed to take a stand. Most of this opposition was due to a lack of information or understanding of Collier’s objectives and purposes. But some came from disagreement with the ending of allotment or, more often, the means laid out in the bill for overcoming the effects of this cornerstone of forced assimilation. Regardless of the reasons for this reaction, however, both the Bureau and members of Congress quickly began hearing from Indians in opposition to the bill. Moreover, this opposition was pivotally important in determining the final content of the bill, in several respects. Although precise documentation on this point does not seem to have survived, Collier and his policy team learned early on that they had little prospect of passing the bill, in spite of President Roosevelt’s extraordinary authority, if they could not reverse the initial Indian hostility and skepticism. In response, unprecedented congresses were organized throughout Indian country in which officers of the Bureau— often including Collier himself—not only explained the bill directly and carefully to Indians but solicited their ideas about what should be in it. These meetings turned around Indian oppo-

290

A Fateful Time

sition and reluctance. The various tabulations of votes on the bill compiled by the Bureau and presented to Congress demonstrated clearly that most governments or groups representing Native Americans supported the principles of the bill when these were understood and when they were assured that matters of importance to them would be offered as amendments. The direct communications to members of Congress from Indians followed the same pattern as the replies to the January 20 memorandum: disapproval and doubt at first, followed by preponderant support after the congresses. We do not have precise quantitative measurements of the mail received by the numerous congressional offices, although a number of letters to the two Committees on Indian Affairs are included in the committee hearings and there are references to such communications at several points in the hearings and in the Wheeler-Howard File. The most momentous development produced by Indian responses to the various drafts of the bill was that both the Bureau and the members of the two Committees on Indian Affairs, in response to Indian input, began repeating the refrain that the bill would not impose anything on Indian societies that did not accept the bill. This development came despite the fact that the draft bill was intended to apply only where Native American societies wished to utilize the charter device. This should have been clear from the bill and the explanatory statement accompanying it, but not everyone understood this crucial point. The responses “from the field” following the January 20 memorandum were convincing evidence—to the Bureau and Congress—that Indians were not in favor of the bill in spite of the draft bill’s emphasis on voluntary action. This fact accounts for the specific provision allowing Indian societies to reject the ira, but it also affected the overall meaning of the act. Indian responses made it certain that the bill was not intended to impose the self-government provisions, at least, on any Native American society that did not want to take advantage of them. As I worked on this book over the years, I believed for a long time that the ira surely could be explained in large part on the hypothesis that the small group of non-Indians strongly involved in Indian policy had by 1934 reached a consensus both on the failure of existing Indian policy and on the major approach to be taken to reforming statutes in this area of policy—the tribal alternative. Such a development was analogous to the consensus in the 1880s among the friends of the Indians that produced the Dawes Act, the most important prior general statute affecting Indian policy. Deloria and Lytle discussed one of the Cosmos Club conferences; I discovered that there had been two of these meetings of persons and groups concerned with Indian policy, in 1933 and 1934. Further, the minutes of these con-

Conclusion

291

ferences stated a high degree of consensus on a reform platform. I believed this consensus must have been of substantial importance in enactment of the ira. Subsequent research and thought, however, have led to the conclusion that the role of the 1930s friends of the Indians was minor at best. First, the minutes of the Cosmos Club conferences overstate the degree of agreement among the persons attending them; no motions were made or passed, and the secretary for both—Robert Gessner—perceived consensus at times where it did not exist. The letter from Assistant Commissioner Scattergood quoted earlier makes this clear; although he had attended the 1934 conference and apparently had not expressed his opposition there, he continued to believe that Collier’s ideas were extremist and radical. Also, although the various Indian-oriented groups agreed for a few weeks early in 1934 to back the draft bill, before long the Indian Rights Association withdrew and opposed the bill. I believe that there was a consensus by 1934 among almost all persons concerned with Indian affairs, in or out of office, that the allotment policy had failed. There was support among some Indians for continuing allotment, but Indian views on this issue were primarily an attempt to preserve existing ownership of such allotments. Generalized rejection of allotment was based on better understanding of the actual impacts of allotment on Indian lands, primarily because of the Meriam Report. There is no evidence that anyone on either Indian Affairs Committee questioned one clearly stated goal of the draft bill—to end new allotments. There was also no criticism of the earlier action by Secretary Ickes ending the granting of new allotments by administrative action. There was a great deal of objection to various proposals in the draft bill for reversing the allotment policy by reassembling allotted lands under community control. A number of these specific provisions were dropped as a result of congressional opposition and the fears of some Indian holders of such allotments, but others remained. Gessner’s conclusion about the 1934 Cosmos Club conference—that no one cared to defend the general policy—seems correct as a description also of congressional views during the first half of 1934. However, there was no consensus beyond this issue among the friends of the Indians. Partly this was because the draft proposal contained new ideas, which had not been part of the earlier debate, but partly it reflected more basic disagreement on the goals of Indian policy. However, there is no evidence that the activities of these groups had measurable impact on the fate of the bill that became the ira. They did not succeed in getting an audience with President Roosevelt at an early stage—which might have been quite important—and they did not even testify before Congress until late in the process, after the events guaranteeing that a major bill would become law and settling most of the questions regarding its content had

292

A Fateful Time

taken place. In 1934, unlike in the 1880s, white reformers outside the government who were concerned with Indian affairs were not of pivotal importance. Neither Collier nor Wheeler derived their knowledge or ideas from these sources, and there is no reason to believe that either of these two major actors felt pressured by them. Their views were based on long involvement with Indian affairs, and they knew that presidential support would guarantee some kind of omnibus bill. There is in fact, except for the lobbying of Western senators on behalf of unidentified constituents for specific benefits for a few non-Indians, no evidence at all that pressures from outside Congress affected the measure in any material way, except for the crucial impact of Indian opinion. Much lobbying, then and now, takes place behind the scenes, outside of public awareness, and lobbying disclosure laws or regulations that now at least partially reveal such activity were not then in existence. Nevertheless, there is no reason to believe that any such lobbying affected the drafting, modification, or passage of the ira except for the important fact that opposition and support from Native Americans was decisive.

The Conflict Between Collier and Wheeler Commissioner Collier and Senator Wheeler were the two most important individuals in determining the content of the final law, but they disagreed at fundamental levels. In fact, their ultimate goals and understanding of Native American life and government policy in this area were so far apart that it is difficult at first glance to draw any conclusion at all about their contributions. Collier desired passionately to put the government on the side of protecting the right of Native Americans to be different in basic ways from the surrounding society and to preserve and strengthen the landbases and interrelated social and political structures necessary to preserve this precious cultural heritage. In fact, it is not an exaggeration to say that protecting what he saw as the essence of Native cultures was a religious duty for him and his most important lifetime commitment, after his discovery of Indian societies in the early 1920s. Moreover, this deep ideology rested on a belief that the survival of general American society ultimately depended on gaining wider acceptance of his view that Native American societies were superior in several key respects to Euro-American society. Collier radically rejected not only the termination ideology but also the forced assimilation ideology. On the other hand, there can also be no doubt that Senator Wheeler was convinced both that Native Americans should be converted into adherents of his conception of American culture and life and that the inevitable movement was

Conclusion

293

in this direction—both central elements of forced assimilation ideology. Behind these notions were the prejudice that Indians were primitives (“longhaired” people, as he put it once in a Senate hearing) who were fortunate enough to be surrounded by a superior culture. In fundamental ways, Collier and Wheeler represented opposite poles on the most important theoretical question raised by the Indian policy discussion of this time and place. The issue was then discussed in terms of whether “assimilation” should continue to be the goal of Indian policy at the national level, although both Collier and Wheeler shared a similar rejection of the forceful aspect of past assimilation-oriented policy. However, Collier and Wheeler agreed on an aspect of Native American policy, which is also important in understanding the Indian Reorganization Act. Both saw the need to continue the trust responsibility of the national government toward Indians. Collier’s reasons for doing so are apparent, although I am not aware of any clear, precise statement of his views on all aspects of the issue. First, Collier knew that when Indians had acquired individual private lands under terms of the Dawes Act, they had often experienced great difficulty in retaining ownership of such property. Only so long as allotments could be held in trust was there a strong probability that they would not pass into non-Indian lands. Beyond this, Collier obviously was aware that Indians lived in small, weak enclaves in the midst of much larger non-Indian populations with vastly greater resources. His experience with the Pueblos had taught him that the non-Indians surrounding Native societies were often the worst enemies of the Indians because they wanted remaining Indian resources. If Indians were terminated, they would have little opportunity to maintain their landbases. Without these landbases, protected from local and state taxation by one of the aspects of trust status, they would have little possibility of retaining their societal cohesion and distinctive cultures. Wheeler agreed with Collier on the need for continued federal guardianship because of the danger to Indian assets if this were not the case. Like other Western and Midwestern Progressives of both parties at this time, Wheeler was strongly committed to preserving individual rights, including property rights. His defense on the floor of the Senate against attempts by various Western senators to secure privileges for non-Indians by amendments to the bill makes this very clear, as does his insistence—and the reasons he gave for this adamant position—that the secretary of the Interior retain the right to choose attorneys for Indians. Wheeler’s reasons for acting in these ways did not include valuing highly the role such protection played in preserving Native American cultures, but in other respects they paralleled those of Collier. Both rejected termination, in other words, as a basis for federal Indian policy, and

294

A Fateful Time

both accepted an important aspect of the existing legal position of Indians in the country. If one looks more closely at the views of both men on the more narrow issue of Native American self-government, however, they were at opposite poles. Collier passionately defended the right of the Pueblos and other traditional Native societies to maintain patterns of government profoundly different from the secular democratic pattern of the overall American regime, while Wheeler denied that they even had governments or should have them. Collier also mistakenly believed that most Indian societies no longer had governments at all—a partial explanation for his advocacy of proposals that would, if accepted, have had the effect of destroying or severely limiting existing Native judicial systems. In practice also, Wheeler must have known that Indian governments in his state and elsewhere were actually functioning in at least limited ways as governments. Nevertheless, his and Collier’s views on this question were in stark contrast. Further thought, however, leads to the conclusion that it is not necessary to resolve this fundamental disparity of basic views to make sense of the ira, for several reasons. First, although he seldom stated this view in public, Collier recognized that some Indians were assimilated. He believed that those who chose the path of assimilation had the right to do so, and that in at least some cases the preservation of the ability of traditional Indians to resist assimilation successfully might require that other Indians accept assimilation. This is the import of various statements he made over the years— one of the most revealing of which occurred during congressional consideration of the ira—to the effect that desirable policy meant supporting both assimilation and resistance to assimilation. This understanding was not incompatible with Collier’s deeper goal, since it required removing the demand, backed up by force, that Indians assimilate. This denial of Indian choice had been the explicit and implicit stance of the U.S. government at least since passage of the General Allotment Act forty years before he became commissioner. The actual ira did offer this choice— the tribal alternative—to Indians. In practice Wheeler, over the months when the ira was before Congress, gave up attempting to shape the Indian Reorganization Act to fit perfectly his views. This is especially so in the area of self-government. As chapter 8 has indicated, while other members of his committee shared with him the goal of assimilation, they did not agree with his extreme notions about Indian selfgovernment. They especially did not agree that Indian societies had lost their right to govern themselves under American law. Wheeler was both incorrect about the facts on this matter and outvoted by his committee.

Conclusion

295

When the ira became law, it contained important sections—accepted by Wheeler—which in fact supported implicitly the notion that Native American societies were self-governing, within limits, and recognized the overall legal pattern supporting this right. In other words, the ira embodied the key idea behind the tribal alternative ideology, which was that forced assimilation should be replaced by measures giving Indians the right to make uncoerced choices in these matters. Several aspects of the ira support this conclusion. First, the provision recognizing existing judicial recognition of limited Indian sovereignty, which goes back to the 1932 tribal council bill backed by Collier, remained intact from the draft bill through to final passage. The explanation of the draft bill stated clearly the theory behind this provision, and no one attacked the provision directly or tried to get it removed, as far as we can tell from the record. Second, sections 16 and 17 of the ira outline procedures by which Native American societies can establish or revise governments based on written constitutions and/or chartered corporations. Nothing in these provisions states or implies that any Indian society was to be required to adopt either a constitution or a charter, and no one involved in the process said that they should be required to do so. Third, shortly after passage of the ira Felix S. Cohen drafted—and Nathan Margold signed—an opinion called “Powers of Indian Tribes,” which reviewed in detail available information about the legal status of Indian governments. This opinion foreshadowed the later conclusions of the Handbook of Federal Indian Law. The heart of this analysis was that the reference in section 16 of the ira to “powers vested in any Indian tribe or tribal council by existing law” included the judge-made aspects of Indian law described at various places in this book. Noting the limited explicit grants of authority to tribes in the ira and the general principle that Indian statutes should be interpreted “liberally” and “in favor of the Indians,” Cohen and Margold concluded that there was “no doubt” that section 16 “does not refer merely to those powers which have been specifically granted by the express language of treaties or statutes, but refers rather to the whole body of tribal powers which courts and Congress alike have recognized as properly wielded by Indian tribes, whether by virtue of specific statutory grants of power, or by virtue of the original sovereignty of the tribe in so far as such sovereignty has not been curtailed by restrictive legislation or surrendered by treaties.” 4 It is interesting that one of the powers explicitly granted to Indian governments by the ira is the authority to “negotiate with” non-Indian governments

296

A Fateful Time

at all levels. Implicitly, this endorses the “government-to-government” mode of deciding Indian issues. Cohen and Margold’s view on this matter was clearly the outlook of Collier and the bia leadership he had chosen. Moreover, for the first months of the ira Cohen was put in overall charge of the reorganization effort made possible by the new statute; his views informed the earliest reorganization efforts under the ira.5 Fourth, as Cohen noted, the fact that the ira does not specify the powers that tribal governments may exercise—it specifically grants only three powers to such governments—makes sense only if there was the implicit assumption that they already possessed or legally could assume numerous other areas of authority. What point would there be in establishing governments with such severely limited authority? The draft proposal had listed many specific grants of authority, which might have caused confusion if these provisions had made their way into the act, but they did not. The notion that the ira is the primary source of authority for governments organized under its provisions makes no sense in the light of the knowledge that Congress chose not to specify these powers and that it believed that existing law recognized limited self-government. Fifth, the record is also clear that nothing in the ira was designed to impose any particular structure of government on an Indian society. Explicit denials that this was his intent had been made repeatedly by Collier since his advocacy of the 1932 tribal council bill, and he repeated such assurances many times, to Native American governments and in congressional forums, during the time the ira was before Congress. A succinct statement of this is contained in the explanation of the bill, to the effect that the bill’s “home-rule features, and those features having to do with the substitution of Indians for whites in Indian Service, are exclusively permissive; no Indian group need take advantage of them; and in the event that any group does take advantage of them, no cut-and-dried formula of organization or procedure is imposed by the bill.” 6 No one in either house stated any intention to impose a particular structural form on Native American societies either, as far as the record shows. Finally, the evidence from the committee hearings, statements made repeatedly by Collier or other Bureau officials, and repeated assertions by members of both houses during debate on the bill supports this interpretation. Several members were inaccurate in stating that the original draft had contained mandatory provisions, but many of them said explicitly that the bill coming from the conference committee was not compulsory in this respect. More important is the fact that this approach to the issue was the direct result of Indian input into the legislative process. When members began to hear

Conclusion

297

that some Indians—in addition to the New York Indians who had been exempted from the draft bill—were opposed to the approach of the ira, the reaction was not to specifically exclude other societies or to kill the bill but to include a specific statement that Indian societies could opt not to have the act apply to them. In other words, the ira neither explicitly continued the previous policy of forced assimilation nor adopted this view that federal policy should support the right of Native Americans to be culturally different. Instead, it opted to give Indians the choice in this matter; it chose what Taylor called the tribal alternative. Implicitly, however, this rejected the central notion of the forced assimilation ideology, which was that Indians were not to have a choice in such matters. Two previous writers on this subject have come to conclusions close to these. In the dissertation that is the sole source of the knowledge of the Wheeler-Zimmerman summit, J. Leiper Freeman noted that in enacting the ira, “Congress left open the question, ‘What shall be the long-term goal of Indian policy?’ There had been speculation and statements, as the record demonstrated. But, essentially, Congress had set up voluntary, collective means for Indian economic, social, and political regeneration without clearly stating the direction in which that regeneration should move.” 7 Freeman recognized that Collier and the key legislators involved differed on ultimate goals. He wrote: It was probably assumed by Congress that [regeneration] would move in the direction of “full citizenship” and full participation in American life for Indians, and that eventually the Bureau and Federal guardianship would go out of existence as Indians became assimilated. Collier, himself, seemed to feel that the Bureau and guardianship eventually might wither away, but, he placed Indian self-determination first. He did not feel that the withering away could take place for a long time—not until the Indians had determined how they wanted to proceed, in what direction and at what speed, and until they had essentially reached the goals which they set for themselves. In brief, Freeman concluded, “This unintended provision was in a real sense, the achievement par excellence of Collier’s legislative leadership.” Note that these comments about Collier’s views were based not on statements Collier made after this time but on the record created during passage of the ira. At a National Archives conference held in Washington, D.C., in 1976, Lawrence C. Kelly said that the ira was “a compromise between Collier’s dream of a new federal policy designed to encourage the growth of Indian

298

A Fateful Time

society and culture and the traditional forces of assimilation.” However, Kelly did not see that the nature of this compromise required an implicit abandonment of the notion of forced assimilation. He also said: Despite John Collier’s frequent assertions to the contrary, the ira did not represent a departure from the assimilationist tradition, although it did mark a break with the idea that individual land holdings were an essential part of the assimilation process. Like most of the other programs of the first New Deal . . . the ira was an essentially conservative response to a problem of long duration, a response which sought not so much to reform the system as to freeze it where it was, a response that sought solutions in the maintenance of the status quo.8 However, the “status quo” included the legal right of Indians to govern themselves and to be different. Preserving these choices necessarily conflicted with the previous statutory policy, which he had previously described as forcing Indians to become assimilated. The ira was not entirely consistent with the tribal alternative, however; there were some provisions that went into effect regardless of the outcome of tribal votes on whether to accept the ira. Ironically, the abolition of the chief “engine” designed to “break up the tribal mass,” the allotment policy, was one of these. All commentators on the ira have agreed that one of the most important aspects of the ira was that it flatly abandoned allotment. Kelly, in the paper just quoted above, noted that this was a “dramatic break with the past,” for example. After the ira became law, Commissioner Collier acted as though the halting of allotment was not a part of the statute that Indians could reject, and was sustained in this view by Nathan Margold. Similarly, the bia in practice behaved as though the education provisions and those having to do with control of Indian resources were also not subject to Indian veto. For example, Collier pursued his attempts to limit grazing on the Navajo Reservation in spite of the fact that this society rejected the ira in the vote mandated by the act. There were several reasons for this turn of events. Whether Congress had intended to exempt key elements of the law from tribal veto was not discussed except tangentially during consideration of the bill, as far as I was able to determine. But the exemption of the allotment provision was consistent with the notion that even key members of Congress accepted the conclusion that this policy had failed and should be repealed. Senator Wheeler had also expressed the opinion in a Senate hearing that the education provisions should not be subject to Indian veto. Nothing explicit in the act exempts these sections, however. Collier proba-

Conclusion

299

bly took the view that he did partly because of his commitment to expert opinion; he believed that he understood the environmental constraints facing all Native American societies, perhaps better than they did. He also believed that educational opportunities should be made available to all young people regardless of the views of Indian governments, because education was the key to wider personal choices and was necessary if Indians were to assimilate at a higher economic level, as he put it. A more fundamental explanation for the provisions exempt from tribal veto, however, may have been another aspect of the status of Native Americans in Indian society. Collier realized, as he had stated years earlier, that Native American policy in this country is in reality a form of colonial policy—a version of what he and others called indirect administration. Among other things, this relationship gave Congress the ultimate authority over Native American life. Supporting this understanding of the deepest matrix of Indian policy are several facts. First, while the courts created and have maintained the legal doctrines recognizing Indian sovereignty in a partial sense, this recognition has never rested on constitutional doctrine. Nothing in the Constitution-asdocument states such a view, and the courts have not found that their version of Indian law rests on unwritten constitutional grounds, although commentators have suggested that this would be desirable.9 One aspect of this issue is that since early in this century, the U.S. courts have recognized the authority of Congress to exercise plenary—full— control over Native American societies. No statute passed by Congress affecting Indians has ever been declared unconstitutional, although many have been interpreted in the light of judicial doctrines recognizing Indian sovereignty. This is so even though Congress has at times blatantly and grossly violated treaties and overruled and even overthrown Native American governments. The judicial doctrine of plenary power in this area came in response to a challenge of a law unilaterally destroying the governing institutions of various Oklahoma tribes, for example. During the 1950s Congress passed statutes— never successfully challenged in court—unilaterally abolishing (terminating) the legal status of specified societies. Collier realized this ultimate nature of the legal relation between Native peoples and the wider society and government, although no one else involved with the events detailed here rose to this level of sophistication on the question. Nothing indicates, either, that Collier thought this situation desirable. On the contrary, he was on record at least once as hoping that Congress could be persuaded to give up its plenary power over Indians. Yet he may have retained some of the colonial mentality in approaching these questions.

300

A Fateful Time

The Indian Reorganization Act and the Future This is not the place to discuss how the ira was implemented nor what its present effect on Native American self-government may be. However, a few comments are in order. First, it is indisputable that the ending of the allotment policy and the continuation of the trust relationship had the effects of reversing the trend created by the Dawes Act and preserving the Indian landbase. Indians initially gained new lands in the Indian New Deal, although not as extensively as Collier had wished. But they have also lost land since, as a result of piecemeal encroachment by the federal government and, for some groups, the temporary reign of the termination policy during the 1950s. But the continuing losses of land that were the result of allotment ceased when the ira became law. Further, beginning in the 1970s there were additions to the Indian landbase through acts restoring trust status to some reservations that had been terminated or in other ways, such as the recognition of the claim to Blue Lake by Taos Pueblo by President Nixon and Congress in the 1970s. Also, the outcome of several Eastern land claims suits in the 1970s and 1980s resulted in increases in Indian trust lands. In 1977 the American Indian Policy Review Commission estimated that the total amount of land held in trust for Native Americans was more than 52 million acres, approximately what it had been in 1934. A 1973 study stated that 10,697,622 acres of this trust status land consisted of individual Indian allotments, and this number had dropped to 10,059,291 acres by 1997. At least this much Indian land would have been lost without the ending of the allotment policy. As of the end of 1997, the total trust land under jurisdiction of the bia had increased to nearly 56 million acres, approximately 4 million acres above the 1934 total.10 In other words, the vast losses of land during the 47 years from 1887 to 1934 compare with a modest increase in the two-thirds of a century since 1934. Collier’s goal of an expanded Indian landbase was not achieved, however. With the substantial expansion of Native American population (from roughly 343,000 in 1930 to 1.9 million in 1990, according to the U.S. Census of Population) the per capita size of the landbase decreased materially. By 1980 only 53 percent of American Indians lived on or near a reservation. As a partial result of this shrinkage, Collier’s goal of reducing Indian poverty also was not reached. With new government programs in the 1970s and the rise of Indian gambling in the late 1980s, there has been some improvement in this area.11 However, the preservation of the lands under Indian control has furthered, in the long run, the capacity of Indian governments to rule themselves, within the colonial context that sets limits to their authority. Federal Indian law continues to be based on the premise that Native American governments exercise

Conclusion

301

aboriginal authority that has not been withdrawn; Indians therefore live under a system of law that is made partially by their own governments. The fact that this is still the case owes something to the Indian Reorganization Act. Allotment, however, continues to do damage to the attempt of Native Americans to govern themselves. Incredibly, in 1985 the U.S. Supreme Court denied the authority of tribes to govern non-Indians owning land on reservations with the argument that weakening or destroying Indian governments had been one of the purposes of the General Allotment Act. The fact that this policy had been repealed for half a century did not seem relevant to the court.12 In understanding how the ira was implemented, the willingness— or, all too often, the unwillingness— of Congress to support efforts by the Collier adminstration to expand Indian choices has to be taken into account. A few conclusions about the specific impact of the ira on self-governance among Indians must be mentioned, however. Partly because there was no “model constitution” that all societies were pushed to adopt, there is no uniform pattern of Indian governance today. The compatibility of the ira with traditional governments—not based on written constitutions and following Western principles—is evident from the fact that, more than sixty years after passage of the ira, there are still significant numbers of such governments. The “failure” of the Collier administration to persuade all Native American societies to change their constitutional/governmental patterns has been cited in an article by an outstanding scholar of this area of federal policy. But there never was any goal of bringing about this result, and therefore no failure.13 Down to 1999 a substantial number—approximately half— of all Native American societies in the United States are ruled by governments not based on written constitutions. The last compilation of the simplest data on this aspect of Indian governance to come to my attention reports that in 1981, of 499 “Indian entities” recognized by the national government, only 280 (56 percent) had “formally approved organic documents.” Less than half of all the societies (45 percent) had constitutions drawn up under the authority of the ira or the similar statute applying to Oklahoma. Among Indian governments still operating without written constitutions are 14 Pueblos, the Navajo Nation—the largest society on the largest reservation in the United States—and the Shoshone and Arapahoe Tribes of the Wind River Reservation in Wyoming, to name only a few.14 Moreover, while no thorough study of existing constitutions has been made, it is certain that the Native Americans governed at the end of the twentieth century by governments based on written documents do not live under identical governing structures. The only systematic attempt yet made to examine

302

A Fateful Time

the actual constitutions of the Indian societies demonstrates that there is no overall pattern in the treatment of the key issue of civil liberties against tribal actions, for example.15

Native Americans and Their Future At the end of the twentieth century, Native Americans continue to survive as members of societies differing from the general American population. Indians, on the whole, have not become assimilated in the sense that they have lost their distinctive cultural identity. In fact, there is growing diversity within the total population of the country; American society has changed. Possibly John Collier would have been surprised (although undoubtedly pleased) at this result. The persistence, bravery, and skill of Native American leadership can partly explain this outcome, but surely both the unique legal position of Indians and the turn toward choice in 1934 have played a role in producing this outcome, even if precise assignment of quantitative measures of the importance of each of these factors is impossible. For the future, probably continuation of roughly the present configuration of federal policy is the best bet. However, another possibility in national Indian policy, which was not an option in 1934, is now supported by some Native American activists. This is an ideology that may be called the treaty-based alternative, or perhaps the restorationist ideology. All the Indian-policy ideologies described in this book—including the tribal alternative—assume that the national government will decide what options will be available to Native Americans. Some Indians today want more self-government than the colonial situation permits. As Deloria and Lytle put it in their 1984 study of the ira, “self-government was not wrong; it was simply inadequate.” 16 Some Indian activists have over the last several decades proposed this new ideology. They suggest that the nation should return to the earlier process by which Native American and Euro-American societies made joint decisions about their relations and the status of Indians. Perhaps the earliest statement of this ideology is the document drawn up by a number of Indians during the “Trail of Broken Treaties” march on Washington in 1972. Shortly after this, Deloria, a highly respected Indian scholar and attorney, published a book (in collaboration with several others) advocating “restoration of the authority to make treaties with Indian communities.” 17 Since the early 1970s a number of Indian leaders and organizations have widened this effort by seeking establishment of international understandings that will protect indigenous peoples all over the world by according them a status in international law that would require nation-states to deal with them

Conclusion

303

as sovereign nations. While this effort has produced some international draft documents asserting rights of indigenous peoples, it is not certain that ultimately the governments of existing nation-states will agree to adopt this ideology. However, it may be premature to regard a return to a treaty policy as impossible; in 1998 a treaty was concluded with a Native American group in Canada and ratified the following year.18 The place of Native Americans in the society and polity of the United States today remains a matter of dispute. This history of how an important general statute of the United States that profoundly affected Indian life came to be may help decision-makers of the present and future to act with greater appreciation of the significance and consequence of their actions. Indian policy today is still of concern chiefly to a small percentage of political leaders or the general population, but Native Americans are the primary component of the present limited circle of those influencing federal policy. Perhaps this study will help to improve the prospects that Native societies can survive in the contemporary world.

Notes

pre f ace 1. John Collier, From Every Zenith: A Memoir and Some Essays on Life and Thought (Denver: Sage Books, 1963), 228; Graham D. Taylor, The New Deal and American Indian Tribalism: The Administration of the Indian Reorganization Act, 1934 – 45 (Lincoln: University of Nebraska Press, 1980), xiii. 2. Readers will note that this work uses Indian and Native American interchangeably. My preference is for the latter term, chiefly because it seems less suggestive that the various indigenous people in what became North and South America were essentially one people. But Indian is used so widely, particularly in law and government, that it cannot be replaced entirely. 3. Gary Stein, “Tribal Self-Government and the Indian Reorganization Act of 1934,” Michigan Law Review 70, no. 5 (April 1972): 976; Theodore H. Haas, “The Indian Reorganization Act in Historical Perspective,” in Indian Affairs and the Indian Reorganization Act: The Twenty Year Record, ed. William H. Kelly (Tucson: University of Arizona Press, 1954), 24. 4. Henry F. Dobyns, “Therapeutic Experience of Responsible Democracy,” in The American Indian Today, ed. Stuart Levine and Nancy Oestreich Lurie (Baltimore: Penguin Books, 1968), 272; Kenneth R. Philp, John Collier’s Crusade for Indian Reform: 1920 –1954 (Tucson: University of Arizona Press, 1977), 237– 44; John Collier, “The Red Atlantis,” Survey 49, no. 1 (October 1922): 15 –20, 63, 66. 5. Taylor, The New Deal and American Indian Tribalism, 150. 6. Ibid., xiii. 7. This error apparently began with Taylor’s remark, on p. 97, that there was a “model constitution.” Such an approach was considered but rejected by the Bureau. Perhaps the confusion arose from the fact that the Bureau did develop an outline of topics that might be included in a constitution. However, listing a membership section imposed no uniform rule for determining membership, and the same thing is true in other areas. Among other writers perpetuating the “model constitution” error, see Ward Churchill, Struggle for the Land: Indigenous Resistance to Genocide, Ecocide, and Expropriation in Contemporary North America (Monroe, Maine: Common Courage Press, 1993); Vine Deloria Jr. and Clifford M. Lytle, American Indians, American Justice (Austin: University of Texas Press, 1983), 101; Emma R. Gross, Contemporary Federal Policy toward American Indians (New York: Greenwood Press, 1989), 20; and Theodore W. Taylor, American Indian Policy (Mount Airy, Md.: Lomond Publications, 1983), 10.

305

306

Notes

8. Vine Deloria Jr. and Clifford M. Lytle, The Nations Within: The Past and Future of American Indian Sovereignty (New York: Pantheon Books, 1984). 9. Curtis Berkey, “John Collier and the Indian Reorganization Act,” American Indian Journal 2, no. 7 (July 1976): 2 –7; “The Legislative History of the Indian Reorganization Act,” American Indian Journal 2, no. 7 (July 1976): 15 –22; “Implementation of the Indian Reorganization Act,” American Indian Journal 2, no. 8 (August 1976): 2 –7; J. Leiper Freeman Jr., “The New Deal for Indians: A Study in Bureau-Committee Relations in American Government” (Ph.D. diss., Princeton University, 1952). 10. “The next session of Congress will be for the Indians and the Indian service a fateful time.” John Collier, “Indian Administration—Some Policies, Hopes, and Fears,” in Proceedings of the National Conference of Social Work (Chicago: University of Chicago Press, 1933), 675. 11. Frederick E. Hoxie, A Final Promise: The Campaign to Assimilate the Indians, 1880 –1920 (Lincoln: University of Nebraska Press, 1984).

c h a p t e r o n e . i n d i a n s e l f - g ove r n me n t a n d t h e n at i o n a l g ove r n me n t d u r i ng t h e 1 9 2 0 s 1. The current version of this work is Felix S. Cohen, Felix S. Cohen’s Handbook of Federal Indian Law: 1982 Edition (Charlottesville, Va.: Michie Bobbs-Merrill, 1982), hereafter Handbook of Federal Indian Law, 1982. 2. 6 Peters 515, 559 (1832). 3. See Francis Paul Prucha, American Indian Treaties: The History of a Political Anomaly (Berkeley: University of California Press, 1994). This is the most thorough treatment of the subject, in spite of Prucha’s view that the United States should never have entered into treaties with Native American nations. 4. 21 u.s. 543 (1823). 5. See Imre Sutton, ed., Irredeemable America (Albuquerque: University of New Mexico Press, 1985). 6. U.S. v. Winans, 198 u.s. 371 (1905), U.S. v. Winters, 207 u.s. 564 (1908); Handbook of Federal Indian Law, 1982, 452, 575 –96. 7. 187 u.s. 553 (1903). See also Blue Clark, Lone Wolf v. Hitchcock: Treaty Rights and Indian Law at the End of the Nineteenth Century (Lincoln: University of Nebraska Press, 1994). 8. Handbook of Federal Indian Law, 1982, 217–20; Charles F. Wilkinson, American Indians, Time, and the Law: Native Societies in a Modern Constitutional Democracy (New Haven: Yale University Press, 1987), 78 – 82. 9. 55 Decisions of the Department of the Interior (1938), 14; Felix S. Cohen, Handbook of Federal Indian Law: 1942 Edition (Washington, D.C.: Government Printing Office, 1942), 122, hereafter Handbook of Federal Indian Law, 1942. 10. This and subsequent quotations in this section are from The Code of Laws of the United States (Washington, D.C.: Government Printing Office, 1926).

Notes

307

11. Handbook of Federal Indian Law, 1942, 149 –50, pointed out this statute and suggested that it might be implemented. 12. Pueblo of Santa Rosa v. Fall, 273 u.s. 315, 320 (1927). 13. Opinions of the Solicitor of the Department of the Interior Relating to Indian Affairs, 1917–74 (Washington, D.C.: Government Printing Office, n.d.), 1:235 – 46. 14. Handbook of Federal Indian Law, 1942, 122. 15. The name of the national government agency charged with dealing with Indians has changed over time, and there have been informal usages within the agency at variance with the official name. For example, it has often been referred to as the Indian Service, although that has never been its formal name, or the Indian Office; sometimes the latter means the Washington headquarters of the agency. For the sake of simplicity, it is referred to here as the Bureau of Indian Affairs, its contemporary designation, or the bia. 16. Robert M. Kvasnicka and Herman J. Viola, eds., The Commissioners of Indian Affairs, 1824 –1977 (Lincoln: University of Nebraska Press, 1979), 187, 190, 194 –95, 205, 212, 231, 234, 244, 252; and Elisabeth Tooker, “Ely S. Parker,” in American Indian Intellectuals, ed. Margot Liberty (St. Paul: West Publishing Co., 1978), 15 – 30. Lawrence C. Kelly, “United States Indian Policies, 1900 –1980,” in History of IndianWhite Relations, ed. Wilcomb E. Washburn, vol. 4 of Handbook of North American Indians (Washington, D.C.: Smithsonian Institution, 1988), 66, uses this term, although not extensively. See also Richard O. Clemmer’s term directed acculturation in “Directed Resistance to Acculturation: A Comparative Study of the Effects of NonIndian Jurisdiction on Hopi and Western Shoshone Communities” (Ph.D. diss., University of Illinois, Urbana-Champaign, 1972). 17. Albert Bushnell Hart and Herbert Ronald Ferleger, Theodore Roosevelt Cyclopedia (New York: Roosevelt Memorial Association, 1941), 250. 18. Messages and Papers of the Presidents (New York: Bureau of National Literature), 14:6674. Brian W. Dippie, The Vanishing American: White Attitudes and U.S. Indian Policy (Lawrence: University Press of Kansas, 1982), 182 – 85, says that Roosevelt was in practice a gradualist. The “pulverizing engine” remark is from Roosevelt’s first annual message to Congress, in 1901. See Hart and Ferleger, Theodore Roosevelt Cyclopedia, 250. It had been taken from a 1900 address by Merrill E. Gates to the Lake Mohonk Conference, the chief annual forum for the friends of the Indian of that time. 19. Hoxie, A Final Promise. 20. Lawrence C. Kelly, “Charles Henry Burke, 1921–29,” in The Commissioners of Indian Affairs, ed. Kvasnicka and Viola, 251– 61. 21. House Committee on Indian Affairs, Indians of the United States: Hearings on the Condition of Various Tribes of Indians, 66th Cong., 1st sess., 1919, 151. 22. Report of the Commissioner of Indian Affairs to the Secretary of the Interior (Washington, D.C.: Government Printing Office, 1921), 25. 23. G. E. E. Lindquist, The Red Man in the United States (New York: George H. Doran Co., 1923), 36 – 37, v–vi; Herbert Corey, “He Carries the White Man’s Burden,” Collier’s 71 (May 12, 1923): 13.

308

Notes

24. Hubert Work, “Our American Indians,” Saturday Evening Post 196 (May 31, 1924): 92. 25. This and subsequent material in this section are from National Archives Building, Record Group 75, Records of the Bureau of Indian Affairs (hereafter, nab, rg 75), Central Classified Files, 1907– 36 (hereafter, ccf), File 41164-1921-054. 26. David E. Wilkins, American Indian Sovereignty and the U.S. Supreme Court: The Masking of Justice (Austin: University of Texas Press, 1997), 136 – 37, 222 –23. 27. nab, rg 75, ccf, File 56297-1921-054. 28. House Committee, Reservation Courts of Indian Offenses: Hearings, 69th Cong., 1st sess., 1926, 2. 29. Ibid., 1–2. 30. William T. Hagan, Indian Police and Judges: Experiments in Acculturation and Control (New Haven: Yale University Press, 1966). 31. See Garrick and Roberta Glenn Bailey, A History of the Navajos: The Reservation Years (Santa Fe: School of American Research, 1986). In 1990, when respondents were strongly encouraged to choose a single race to which they belonged, 306,000 persons identified themselves as Cherokees and 219,000 as Navajos. Edna Paisano et al., American Indian Population by Tribe for the United States, Regions, Divisions, and States: 1990 (Washington, D.C.: Bureau of the Census, 1992). 32. Mary Shepardson, Navajo Ways in Government: A Study in Political Process, Memoir 96, American Anthropological Association (June 1963), 37. 33. Ibid., 47. 34. Ibid., 14. 35. Lawrence C. Kelly, The Navajo Indians and Federal Indian Policy, 1900 –1935 (Tucson: University of Arizona Press, 1968), 26 –27. 36. Shepardson, Navajo Ways in Government, 78. 37. Letter to Commissioner Burke, February 14, 1928, in nab, rg 75, ccf, File 1928 [sic]. For a biography of Dodge, whose life spanned the forced exile of the Navajos to Fort Sumner until after World War II, see David M. Brugge, “Henry Chee Dodge: From the Long Walk to Self-Determination,” in Indian Lives: Essays on Nineteenth- and Twentieth-Century Native American Leaders, ed. L. G. Moses and Raymond Wilson (Albuquerque: University of New Mexico Press, 1985), 91–112. 38. Herbert J. Hagerman to Commissioner Burke, September 6, 1926, in nab, rg 75, ccf, File 43010-1926-054. 39. Kelly, Navajo Indians and Federal Indian Policy, 48 –55. 40. Ibid., 61–70; Aubrey W. Williams Jr., Navajo Political Process (Washington, D.C.: Smithsonian Institution Press, 1970), 18 –23, 36. 41. nab, rg 75, ccf, File 36351-1929-054. 42. See Donald C. Parman, The Navajos and the New Deal (New Haven: Yale University Press, 1976), and Peter Iverson, The Navajo Nation (Westport, Conn.: Greenwood Press, 1981). 43. nab, rg 75, ccf, File 259 (054-1937) contains minutes of these meetings. 44. Williams, Navajo Political Process, 1, 33 – 40.

Notes

309

45. Senate Committee on Indian Affairs, Survey of Conditions of the Indians in the United States: Part 16, Flathead Reservation, Mont., 71st Cong., 2d sess., 1930, 3271, 3283 – 86, 3318. Other materials in this section are from the Papers of John Collier at Yale University. 46. Senate Committee, Survey of Conditions (1930), 3321–25. 47. Ibid., 3294, 3477. 48. Ibid., 3333 – 41; American Indian Life, August 26, 1927, 1– 4; Coe to Burke, December 14, 1928, in nab, rg 75, “Circulars, 1904 –1934.” When this material was found for me during the 1970s by archivist Richard Crawford, it was in an unlabeled box. 49. Coe to Burke, December 14, 1928. 50. Burke to Coe, May 25, 1929, in nab, rg 75, “Circulars, 1904 –1934.” 51. Ibid. 52. Ibid. 53. Senate Committee, Survey of Conditions (1930), 3358. 54. Ibid., 3506. 55. United States v. Sandoval, 231 u.s. 28 (1913). 56. Lawrence C. Kelly, The Assault on Assimilation: John Collier and the Origins of Indian Policy Reform (Albuquerque: University of New Mexico Press, 1983), 180 – 95, 193 –211. 57. Ibid., 213 –19; Philp, Collier’s Crusade for Indian Reform, 26 – 35. Collier’s salary for the first two years was provided by Mrs. Kate Vosburg of Azusa, California. 58. “Proceedings of All-Pueblo Indian Council . . . September 2, 1929,” in nab, rg 75, ccf, File 48858-1929-054. 59. Kelly, Assault on Assimilation, 232 –54; Philp, Collier’s Crusade for Indian Reform, 36 –54. 60. Kelly, Assault on Assimilation, 301–10, 334 – 38, 340, 346 – 47; Philp, Collier’s Crusade for Indian Reform, 55 – 69. 61. Kelly, Assault on Assimilation, 311–14, 334 – 39. Philp, Collier’s Crusade for Indian Reform, 61, says that there were thirty delegates; Kelly, Assault on Assimilation, 312, says that there were fewer than twenty. See also nab, rg 75, ccf, File 395541924-054. 62. Kelly, Assault on Assimilation, 253 – 63; Philp, Collier’s Crusade for Indian Reform, 45 – 49. 63. nab, rg 75, ccf, File 43010-1926-054. Subsequent material in this section is from this file. 64. “Report of the Proceedings of the All-Pueblo Indian Council . . . October 6, 1926,” ibid., and “Proceedings of the All-Pueblo Indian Council . . . 1929,” ibid., File 48858-1929-054. 65. “Report of the Proceedings of the All-Pueblo Indian Council . . . October 6, 1926,” ibid., File 43010-1926-054. 66. W. W. Hill, An Ethnography of Santa Clara Pueblo, New Mexico (Albuquerque: University of New Mexico Press, 1982), 181–90.

310

Notes

67. Nancy S. Arnon and W. W. Hill, “Santa Clara Pueblo,” in The Southwest, ed. Alfonso Ortiz, vol. 9 of Handbook of North American Indians (Washington, D.C.: Smithsonian Institution, 1979), 302. 68. Edward P. Dozier, “Factionalism at Santa Clara,” Ethnology 5 (1966): 176 –77. 69. Dozier, “Factionalism at Santa Clara,” 177–78; Arnon and Hill, “Santa Clara Pueblo,” 302. 70. Dozier, “Factionalism at Santa Clara,” 179. 71. This quotation and other material in this section are from nab, rg 75, ccf, File 53130-1927-054. 72. Ibid., File 48858-1927-054. 73. Dozier, “Factionalism at Santa Clara,” 180 – 83; Arnon and Hill, “Santa Clara Pueblo,” 302.

c h a p t e r t wo . t h e s tat u s o f i n d i a n g ove r n me n t s d u r i ng t h e 1 9 2 0 s 1. nab, rg 75, “Circulars, 1904 –1934.” 2. Deloria and Lytle, The Nations Within, 17–18. 3. The Constitutions and Laws of the American Indian Tribes (1878; reprint, Wilmington, Del.: Scholarly Resources, Inc., 1973); Lester Hargrett, A Bibliography of the Constitutions and Laws of the American Indians (Cambridge: Harvard University Press, 1947). 4. Angie Debo, And Still the Waters Run: The Betrayal of the Five Civilized Tribes (Princeton: Princeton University Press, 1968). 5. Handbook of Federal Indian Law, 1982, 770 – 84; Debo, And Still the Waters Run, 258. 6. Handbook of Federal Indian Law, 1942, 129. 7. Russell Thornton, American Indian Holocaust and Survival: A Population History since 1492 (Norman: University of Oklahoma Press, 1987), especially 91–109. Dippie, The Vanishing American, has argued that population statistics about Native Americans have usually been and remain unreliable because they are affected by the persistence of the notion of the vanishing Indian, but there can be no doubt about the immense population losses experienced by most of these groups. 8. Various disruptive effects of disease are discussed by Thornton. For some surprising impacts of disease, see Calvin Martin, Keepers of the Game: Indian-Animal Relationships and the Fur Trade (Berkeley: University of California Press, 1978). 9. See Bailey and Bailey, A History of the Navajos. 10. Some of the case histories relied on by Taylor’s New Deal and American Indian Tribalism in drawing his conclusions about the impact of the ira on Indian selfgovernment and some of the strongest criticism of the ira’s impact on Indian self-governance have involved instances in which the underlying problem involved levels of government, not traditional vs. nontraditional patterns. For example, the national government during the 1930s created the Hopi Tribal Council as an attempt to develop a Hopi government above the village level without dis-

Notes

311

turbing government at the lower level. The original Hopi Constitution stated, for example, that the kikmongwis (the village religious leaders, who were still active in most villages) had to certify members of the new council from their villages. Oliver La Farge, who led this effort, has left (in the National Archives) ample documentation of the desire to create a new level dominated by leaders at the village level, although no one has yet used these materials to write an adequate history. In spite of this, eventually the elected council largely became autonomous from the underlying religious organization, with the result that Traditionalist Hopis denounced it as threatening or replacing the old order. See Richard O. Clemmer, “The Hopi Traditionalist Movement,” American Indian Culture and Research Journal 18, no. 3 (1994): 125 – 65. 11. See Robert H. Keller Jr., American Protestantism and United States Indian Policy, 1869 – 82 (Lincoln: University of Nebraska Press, 1983); Loring Benson Priest, Uncle Sam’s Stepchildren: The Reformation of United States Indian Policy, 1865 –1887 (Lincoln: University of Nebraska Press, 1942). 12. Raymond J. DeMallie, ed., The Sixth Grandfather: Black Elk’s Teachings Given to John G. Niehardt (Lincoln: University of Nebraska Press, 1984). 13. Omer C. Stewart, “Three Gods for Joe,” Tomorrow 4, no. 3 (1956): 71–76. 14. Bailey and Bailey, A History of the Navajos, 277– 80. 15. Hoxie, A Final Promise, 189 –210. 16. On the Dawes Act and its background, see Priest, Uncle Sam’s Stepchildren; Robert W. Mardock, The Reformers and the American Indian (Columbia: University of Missouri Press, 1971); Henry E. Fritz, The Movement for Indian Assimilation, 1860 – 1890 (Philadelphia: University of Pennsylvania Press, 1963); Wilcomb E. Washburn, The Assault on Indian Tribalism: The General Allotment Law (Dawes Act) of 1887 (Philadelphia: J. B. Lippincott Co., 1975); and D. S. Otis, The Dawes Act and the Allotment of Indian Lands (Norman: University of Oklahoma Press, 1973). 17. The early allotment bills provided that allotment would take place only if Indian societies consented to the policy. This approach was dropped because there was little Indian support for allotment. Priest, Uncle Sam’s Stepchildren, 235 – 36. See also Washburn, The Assault on Indian Tribalism, 10, 24 –25; and Hoxie, A Final Promise, 246. 18. Otis, The Dawes Act and the Allotment of Indian Lands, 20 –21; Hoxie, A Final Promise, 72. 19. Dippie, The Vanishing American, 163. 20. Hoxie, A Final Promise, 29 – 38. 21. Ibid., ix, 42. 22. Washburn, The Assault on Indian Tribalism, 37– 39, 44 – 45, 49; Otis, The Dawes Act and the Allotment of Indian Lands, 11, 22. 23. Washburn, The Assault on Indian Tribalism, 22. 24. Hoxie, A Final Promise, 116 – 45; Washburn, The Assault on Indian Tribalism, 18 –19. 25. Richard Henry Pratt, Battlefield and Classroom (New Haven: Yale University Press, 1964), 7– 8, 194 –95, 269 –73; and E. A. Gilcreast, “Richard Henry Pratt and

312

Notes

American Indian Policy, 1877–1906: A Study of the Assimilation Movement” (Ph.D. diss., Yale University, 1967), 101– 3. 26. Elvin Hatch, Theories of Man and Culture (New York: Columbia University Press, 1973). See also Marvin Harris, The Rise of Anthropological Theory (New York: Thomas Y. Crowell, 1968). 27. Priest, Uncle Sam’s Stepchildren, 246 – 47; Washburn, The Assault on Indian Tribalism, 52. 28. Leonard A. Carlson, Indians, Bureaucrats, and Land: The Dawes Act and the Decline of Indian Farming (Westport, Conn.: Greenwood Press, 1981), 21, 80; Debo, And Still the Waters Run, 21; Otis, The Dawes Act and the Allotment of Indian Lands, 57. 29. Elk v. Wilkins, 112 u.s. 94 (1884); Handbook of Federal Indian Law, 1982, 641– 42. 30. Congressional Research Service, Library of Congress, The Constitution of the United States of America: Analysis and Interpretation (Washington D.C.: Government Printing Office, 1973), 99 –101, 1543 –50. In 1875 the U.S. Supreme Court, in turning back an attempt to argue that the 14th Amendment had granted women the right to vote, declared specifically that this right is not one of the privileges and immunities of United States citizenship but that citizenship “is understood as conveying the idea of membership of a nation, and nothing more.” See Minor v. Happersett, 88 U.S. 627, 628. 31. See, for example, Richard Kluger, Simple Justice (New York: Alfred A. Knopf, 1976), 51– 83. I am not aware of any significant attempt to compare the congressional voting patterns on both civil rights and Indian policy. 32. In re Heff, 197 u.s. 488, 509 (1905). 33. United States v. Nice, 241 u.s. 591, 598, 601 (1916). 34. U.S. Statutes (1906): chap. 2348. 35. Ibid., chaps. 2348, 3504. 36. Hoxie, A Final Promise, 77. 37. Carlson, Indians, Bureaucrats, and Land, 50. In 1924, the Supreme Court ruled that the Dawes Act did not prohibit the allotment of timber lands, in spite of the specific limitation to agricultural and grazing lands in the act. However, this decision did not result in widespread allotment of timber lands, partly because the authority to make such an allotment in the specific case before the court was an unusual provision in a treaty with the Quileute and other tribes authorizing such action. See U.S. v. Payne, 264 u.s. 446 (1924), and Lewis Meriam et al., The Problem of Indian Administration (New York: Johnson Reprint Corporation, 1971), 464 – 66. 38. Carlson, Indians, Bureaucrats, and Land, 15, 43 – 44, 173. 39. House Committee, Readjustment of Indian Affairs: Hearings, 73d Cong., 2d sess., 1934, 217; Carlson, Indians, Bureaucrats, and Land, 158. 40. Carlson, Indians, Bureaucrats, and Land, 58. 41. Otis, The Dawes Act and the Allotment of Indian Lands, 95. 42. Bailey and Bailey, A History of the Navajos, 289 –97. 43. Anna Wilmarth Ickes, Mesa Land: The History and Romance of the American Southwest (Boston: Houghton Mifflin Co., 1933), 134; Margaret Mead, The Changing Culture of an Indian Tribe (1932; reprint, New York: Capricorn Books, 1966).

Notes

313

44. Hazel W. Hertzberg, The Search for an American Indian Identity: Modern PanIndian Movements (Syracuse: Syracuse University Press, 1971). 45. Peter Iverson, Carlos Montezuma and the Changing World of American Indians (Albuquerque: University of New Mexico Press, 1982). 46. H. Craig Miner, The Corporation and the Indian: Tribal Sovereignty and Industrial Civilization in Indian Territory, 1865 –1907 (Columbia: University of Missouri Press, 1976). 47. Federalist #10.

chapter three. conflict and consensus: the 1920s 1. Randolph C. Downes, “A Crusade for Indian Reform, 1922 –1934,” Mississippi Valley Historical Review 32, no. 3 (1945): 331–54. 2. Hazel W. Hertzberg, “Indian Rights Movement, 1887–1973,” in History of Indian-White Relations, ed. Washburn, vol. 4 of Handbook of North American Indians, 305 – 6. 3. Philp, Collier’s Crusade for Indian Reform, 24 –27; Kelly, Assault on Assimilation, 118 –20, 124 – 37. 4. Kelly, Assault on Assimilation, 245 – 46, 267– 80, 288, 328 – 34, 355. 5. Ibid., 270, 284, 307, 313, 324, 336 – 37; Philp, Collier’s Crusade for Indian Reform, 47, 55 –56; Downes, “A Crusade for Indian Reform,” 336 – 37. 6. Philp, Collier’s Crusade for Indian Reform, 33 – 35; Kelly, Assault on Assimilation, 217–18, 229 – 30; Hertzberg, “Indian Rights Movement,” 308. 7. D’Arcy McNickle, Indian Man: A Life of Oliver La Farge (Bloomington: Indiana University Press, 1971): 63 – 65, 88 –90; Kelly, Assault on Assimilation, 237, 355. 8. Proceedings of the National Conference of Social Work (Chicago: University of Chicago Press), various years; Kelly, Assault on Assimilation, 293. 9. Charles Lam Markmann, The Noblest Cry: A History of the American Civil Liberties Union (New York: St. Martin’s Press, 1965); Samuel Walker, In Defense of American Liberties: A History of the ACLU (New York: Oxford University Press, 1990). The correspondence referred to in the following paragraph is in the American Civil Liberties Union Papers, Princeton University (hereafter, aclu Papers), vol. 338. 10. Hertzberg, The Search for an American Indian Identity, 71, 82 – 83, 111, 134, 197– 99, 207– 8. 11. Ibid., 207– 8; Zitkala-sa [Gertrude Bonnin], American Indian Stories (Washington, D.C.: Hayworth Publishing House, 1921). 12. Hertzberg, The Search for an American Indian Identity, 171, 188 –90. 13. Congressional Record, Senate, April 24, 1926, pp. 8152 –58; Kelly, Assault on Assimilation, 207; Hertzberg, “Indian Rights Movement,” 309. 14. Hertzberg, “Indian Rights Movement,” 310. 15. Congressional Record, Senate, December 15, 1925, pp. 818 –27; Jennings C. Wise and Vine Deloria Jr., The Red Man in the New World Drama (New York: Macmillan Co., 1971).

314

Notes

16. Dippie, The Vanishing American, 276. 17. Mabel Dodge Luhan, Movers and Shakers, vol. 3 of Intimate Memoirs (New York: Harcourt, Brace, and Co., 1936), 265 –79, 322. 18. Ibid., 276 –77; Kelly, Assault on Assimilation, 14 –16; Philp, Collier’s Crusade for Indian Reform, 5. Collier told a congressional committee in 1934 that he himself would probably not meet the educational qualifications for federal employment. House Committee, Readjustment of Indian Affairs (1934), 41. 19. nab, rg 75, Wheeler-Howard File, File 4894-1934-066, pt. 11, Minutes of Anadarko Congress, 65; Kelly, Assault on Assimilation, 135. 20. Downes, “A Crusade for Indian Reform,” 337. 21. Kelly, Assault on Assimilation, 367– 68, 371–72. 22. Ibid., 368. 23. Downes, “A Crusade for Indian Reform,” 339 – 40. 24. Kelly, Assault on Assimilation, 349 – 65. 25. Senate Committee, Survey of Conditions (1930), 3268 –70; Downes, “A Crusade for Indian Reform,” 350; Carlson, Indians, Bureaucrats, and Land, 135. 26. Philp, Collier’s Crusade for Indian Reform, 87–90; Kelly, Assault on Assimilation, 365 – 68. 27. Kelly, Assault on Assimilation, 185 –90, 246 –51. 28. Ibid., 372 –73. 29. Ibid., 288 –93; Philp, Collier’s Crusade for Indian Reform, 49 –52; Downes, “A Crusade for Indian Reform,” 340. 30. Downes, “A Crusade for Indian Reform,” 341. 31. Ibid., 342; Eugene P. Trani, “Hubert Work and the Department of the Interior, 1923 –28,” Pacific Northwest Quarterly 61, no. 1 (January 1970): 39; Kelly, Assault on Assimilation, 293, 374; Philp, Collier’s Crusade for Indian Reform, 81– 82. 32. Downes, “A Crusade for Indian Reform,” 349 –50. 33. Kelly, Assault on Assimilation, 367. 34. Senate Committee on Indian Affairs, Survey of Conditions of Indians in the United States: Hearings on s. Res. 341, 69th Cong., 2d sess., 1927, 2. 35. These and subsequent facts about how the study was organized are from Meriam, The Problem of Indian Administration, 56 – 85. See also Donald T. Critchlow, “Lewis Meriam, Expertise, and Indian Reform,” Historian 43, no. 4 (May 1981): 325 – 44. 36. Edward Everett Dale, The Indians of the Southwest (Norman: University of Oklahoma Press, 1949). 37. Meriam, The Problem of Indian Administration, 60, 80 – 81, 72. See also Steven J. Crum, “Henry Roe Cloud, a Winnebago Indian Reformer: His Quest for American Indian Higher Education,” Kansas History 11, no. 3 (autumn 1988): 171– 84. 38. Meriam, The Problem of Indian Administration, 57–58. 39. Ibid., 58, 60. 40. Downes, “A Crusade for Indian Reform,” 342. 41. Hereafter, the page references to Meriam, The Problem of Indian Administration, will be in the text.

Notes

315

42. W. Carson Ryan Jr., “Cooperation in Indian Education,” Proceedings of the National Conference of Social Work (Chicago: University of Chicago Press, 1931): 617–25. 43. Quotations from Brown’s chapter are from pp. 743 – 811. This quotation is on p. 762. 44. This report was published in House Committee, Readjustment of Indian Affairs (1934), 340 –52. 45. Critchlow, “Lewis Meriam, Expertise, and Indian Reform,” 327– 32. 46. Quoted in Deloria and Lytle, The Nations Within, 38. 47. Flora Warren Seymour, “Our Indian Problem/The Delusion of the Sentimentalists,” Forum 71, no. 3 (March 1924): 274. Seymour’s article was followed by a more reasonable article by Mary Austin, with the title “The Folly of the Officials,” 281– 88. 48. Hoxie, A Final Promise, 178 –79. 49. Kelly, Assault on Assimilation, 186 – 87; Iverson, Carlos Montezuma and the Changing World of American Indians, 66 – 67, 116 –17. 50. Pratt, Battlefield and Classroom; Gilcreast, “Richard Henry Pratt and American Indian Policy”; Iverson, Carlos Montezuma and the Changing World of American Indians, 9 –10, 28 –29. 51. Pratt, Battlefield and Classroom, 268. 52. Ibid., 266. 53. Ibid., 283. See also pp. 335 – 37. 54. Quotations from this document are from National Archives Building, Record Group 48, Records of the Department of the Interior, Indian Office, Administrative, General, Nos. 5 –11, Part 4. 55. Iverson, Carlos Montezuma and the Changing World of American Indians, 89 –90, 122 –23, 182 – 83. 56. Latimer to Joshua Wetsit, October 27, 1928, in aclu Papers, vol. 338. 57. Senate Committee, Survey of Conditions (1930), 3513 – 31. 58. aclu Papers, vol. 534, p. 212. 59. Senate Committee on Indian Affairs, Creation of Indian Trust Estates: Hearing, 72d Cong., 1st sess., 1932, 3. The House Committee on Indian Affairs held hearings on this issue in 1928 and 1930, and the Senate Committee on Indian Affairs held another hearing on it in 1930. 60. House Committee on Indian Affairs, Emancipated Citizenship for American Indians: Hearings, 71st Cong., 3d sess., 1931, 2. 61. rg 75, General Services, File 28391-1930-013.

c h a p t e r f o u r. t h e r h o d e s - s c at t e r g o o d a d m i n i s t r at i o n : new era or transition? 1. Ray Lyman Wilbur, “A New Day for the Indian,” New York Herald Tribune Magazine (March 24, 1931): 1–2, 12; Wilbur, as told to W. A. DuPuy, “Uncle Sam Has a New Indian Policy,” Saturday Evening Post 201 (June 8, 1929): 136 – 37. DuPuy was

316

Notes

a reporter/author who between 1913 and 1926 wrote several books on activities of the federal government. Several of these were nature books; in 1931 he coauthored a book with Secretary Wilbur on the conservation activities of the Interior Department. Who’s Who in America (1940 – 41), 21:820 –21. It might have been supposed that the election of the first vice president of Indian ancestry in the country’s history— Charles Curtis of Kansas—would have an impact on Indian policy. However, there is little evidence that Curtis involved himself in this area of policy during the Hoover administration. As noted in chapter 5, he did help the Klamath Tribe secure an attorney to draft their incorporation bill, however. As an extreme advocate of forced assimilation, Curtis undoubtedly would have acted on these beliefs if he had been more involved in Indian policy. 2. Collier himself once made this claim. See House Committee on Indian Affairs, Wheeler-Howard Act—Exempt Certain Indians: Hearings, 76th Cong., 3d sess., 1940, 23. 3. Ray Lyman Wilbur Papers, Stanford University, Box 15, Folders “Indian Affairs 1913 –1921” and “Indian Affairs 1923 –1928.” 4. Lawrence C. Kelly, “Charles James Rhoads, 1929 – 33,” in The Commissioners of Indian Affairs, ed. Kvasnicka and Viola, 263 –71; Rhoads obituary in New York Times, January 4, 1956, and Scattergood obituary in New York Times, June 16, 1953, in Herbert Hoover Presidential Library, Presidential Papers (hereafter Hoover Papers), “Finding Aid” folder, File “Indian Affairs (U.S.), 1929 – 33.” 5. Kelly, “Charles James Rhoads,” 264. 6. “Indian Administration since July 1, 1929” (hereafter “Indian Administration”), March 3, 1933, 8, in Hoover Papers, Box 18, File “1933 February–March”; Wilbur to Director of the Budget, July 17, 1929, in Wilbur Papers, Box 16, Folder “Interior Department/Budget FY 1931.” 7. Rhoads to Wilbur, October 28, 1929, in Wilbur Papers, Box 16, File “Interior Department/Budget FY 1931.” 8. Memorandum from Wilbur to Hoover, April 17, 1930, in Hoover Papers, Box 18, File “1930 January–June.” 9. Kelly, “Charles James Rhoads,” 268 – 69. 10. “Indian Administration,” 8 –9. 11. Ibid., 43. 12. Ryan, “Cooperation in Indian Education”; “Indian Administration,” 45, 48 – 50; Rhoads to Senator William H. King, January 18, 1933 (hereafter, Rhoads to King), 14, in Hoover Papers, Box 18, File “1933 January.” 13. “Indian Administration,” 48 – 49. 14. Ibid., 51–52, 54; Rhoads to King, 20. 15. “Indian Administration,” 23 –24, 26 –27, 40 – 42. 16. Ibid., 28 –29; Rhoads to King, 10, 14 –16. 17. Rhoads to King, 13, 10; “Indian Administration,” 57; Critchlow, “Lewis Meriam, Expertise, and Indian Reform,” 333 – 34, 339 – 42. 18. Rhoads to King, 17–18; “Indian Administration,” 59 – 60. 19. “Condition [sic] in the Field Service,” October 1, 1931, 4, 9, 7, in Hoover Papers, Box 18, File “1932 January–June”; Rhoads to King, 36.

Notes

317

20. Rhoads to King, 31. 21. Ibid., 30 – 33. 22. “Indian Administration,” 12, 30, 13. 23. Wilbur to President Hoover, March 30, 1929, in Hoover Papers, Box 18, File “1929 January–June.” 24. “Indian Administration,” 14. 25. Ibid., 33 – 38. 26. E. B. Merritt [sic] to F. E. Perkins, January 5, 1929, in nab, rg 75, General Services, File 9792-1936-066, Warm Springs. 27. Senate Committee on Indian Affairs, Survey of Conditions of the Indians in the United States: Hearings, Part 28, Nevada, 73d Cong., 1934, 15084. 28. Rhoads to Perkins, January 26, 1933, and Zimmerman to Perkins, September 12, 1933, in nab, rg 75, General Services, File 9792A-1936-068, Warm Springs. 29. nab, rg 75, Wheeler-Howard File, File 4894-1934-066, pt. 2A, sec. 1. 30. Cohen and Siegel to Shotwell, December 22, 1933, and Cohen to Charles Bear, January 2, 1933 [sic], in Felix S. Cohen Papers, Beinecke Rare Book and Manuscript Library, Yale University, Box 7, Folder 98, “Indian-misc./Letters-carbons, 1933 – 34.” 31. Collier to Wilbur, September 27, 1929, in nab, Record Group 48, Records of the Department of the Interior (hereafter, rg 48), ccf, 5 –11, Administrative, General, pt. 6. The article quoted was Mary Austin, “Why Americanize the Indian?” Forum 82, no. 3 (September 1929): 167–73. 32. Kelly, Assault on Assimilation, 82 – 83. 33. Wilbur to Henry Goddard Leach, February 6, 1924, in Wilbur Papers, Box 15, Folder “Indian Affairs 1923 –1928.” 34. Wilbur and DuPuy, “Uncle Sam Has a New Indian Policy,” 5. 35. Wilbur to Collier, October 1, 1929, in nab, rg 48, 5 –11, Administrative, General, pt. 6. 36. Philp, Collier’s Crusade for Indian Reform, 94 –95; Congressional Record, Senate, December 21, 1929, pp. 1051–53. The letters are also printed in House Committee on Indian Affairs, Hearings on s. 2103, 76th Cong., 3d sess., 1940, 24 –29. They were inserted in the Congressional Record by Senator Burton K. Wheeler on December 21, 1929. 37. House Committee, Hearings on s. 2103, 76th Cong., 3d sess., 1940, 23; Philp, Collier’s Crusade for Indian Reform, 95. 38. Emerson to Wilbur, May 6, 1930, in nab, rg 75, Collier Office File, Box W (18), File “Scrapbook Fragments.” 39. Philp, Collier’s Crusade for Indian Reform, 101–12. 40. Congressional Record, Senate, March 9, 1932, p. 5547. The long report was also published by the Senate Committee on Indian Affairs, as Conditions of Indians in the United States: Speech of Hon. William H. King . . . delivered in the Senate February 8, 1932 (Washington, D.C.: U.S. Government Printing Office, 1933). 41. “Statement prepared by the Department of the Interior . . . ,” March 10, 1932, 2, in Wilbur Papers, Box 15, Folder “Indian Affairs 1932 January–June.”

318

Notes

42. Collier Office File, Box W (18), File “Scrapbook Fragments”; “The Indian Affairs Tragedy since 1929 . . . ,” 1–2, in Wilbur Papers, Box 15, File “Indian Affairs 1932 January–June.” 43. Federalist #51. 44. Philp, Collier’s Crusade for Indian Reform, 96 –99. 45. “Indian Administration,” 17, 19. 46. Senate Committee on Indian Affairs, Revision and Codification of the Statutes Affecting American Indians: Hearings, 71st Cong., 3d sess., 1931, 2. 47. “Indian Administration,” 20; Kenneth R. Philp, “Herbert Hoover’s New Era: A False Dawn for the American Indian, 1929 –1932,” Rocky Mountain Social Science Journal 9 (April 1972): 53 – 60.

c h a p t e r f i ve . t h e t r i b a l a lt e r n at i ve : e a r ly ve r s i o n s 1. This name is taken from an early article by Graham D. Taylor, “The Tribal Alternative to Bureaucracy: The Indian’s New Deal, 1933 –1945,” Journal of the West 13, no. 1 (January 1974): 128 – 42. 2. J. Allen Smith, The Spirit of American Government (London: Macmillan Co., 1912), vii, 379. 3. Iverson, Carlos Montezuma and the Changing World of American Indians, 88, 140 – 41; House Committee on Indian Affairs, Right of Indians to Nominate Their Agent: Hearings, 62d Cong., 2d sess., 1912; House Committee on Indian Affairs, Right of Indians to Nominate Agent: Supplemental Hearing, 62d Cong., 2d sess., 1913. 4. This and other quotations from the bill are from House Committee, Right of Indians (1912), 3 – 6. 5. Ibid., 7, 8. 6. Ibid., 7 (testimony of Martin J. Bentley). 7. Deloria and Lytle, The Nations Within, 32 – 34. 8. House Committee, Right of Indians (1912), 6 –18. 9. nab, Records of the House of Representatives, 64th Cong., “Subcommittee Report on h.r. 25242.” See also Senate Committee on Indian Affairs, Granting Indians the Right to Select Agents and Superintendents: Hearing, 64th Cong., 1st sess., 1916, 7–9. 10. House Committee, Right of Indians: Supplemental Hearing (1913), 33. 11. Ibid., 42, 44 – 45. 12. Ibid., 41. 13. Ibid., 10. 14. Ibid., 54; Pratt to Stephens, September 10, 1913, in nab, Records of the House of Representatives, 64th Cong. 15. House Committee, Right of Indians: Supplemental Hearing (1913), 6. 16. Senate Committee, Granting Indians (1916), 7–9; Larry Pressler, U.S. Senators from the Prairie (Vermillion, S.D.: University of South Dakota Press, 1982), 7, 58, 70 –72.

Notes

319

17. Congressional Record, Senate, August 5, 1916, p. 12161; Blackfeet Tribal Council to Senator Ashurst, March 25, 1916, in nab, Records of the Senate, 64th Cong. 18. Senate Committee, Granting Indians (1916), 3 – 6. 19. Ibid., 31– 32. 20. Ibid., 43; Senate Committee on Indian Affairs, Recall of Agents or Superintendents by Indian Tribes: Hearing, 64th Cong., 1st sess., 1916, 1–15. 21. Congressional Record, Senate, August 5, 1916, pp. 12160 – 62. 22. Senate Committee, Granting Indians (1916), 33. 23. Senate Committee, Recall of Agents (1916), 4. 24. Senate Committee, Granting Indians (1916), 30, 34 – 35. 25. Senate Committee, Recall of Agents (1916), 39. 26. Hertzberg, The Search for an American Indian Identity, 36, 60 – 61. 27. Senate Committee, Recall of Agents (1916), 10, 13. 28. Laura Cornelius Kellog[g] [Wynnogene], Our Democracy and the American Indian: A Comprehensive Presentation of the Indian Situation as It Is Today (Kansas City, Mo.: Burton Publishing Co., 1920), 50 –51. 29. Ibid., 60, 62 – 63, 80, 66, 77–79. 30. See Laurence M. Hauptman, “Designing Woman: Minnie Kellogg, Iroquois Leader,” in Indian Lives: Essays on Nineteenth- and Twentieth-Century Native American Leaders, ed. L. G. Moses and Raymond Wilson (Albuquerque: University of New Mexico Press, 1985), 159 – 88, and Hauptman, The Iroquois Struggle for Survival: World War II to Red Power (Syracuse: Syracuse University Press, 1986). Hauptman suggests in “Designing Woman” that the major thrust of her book was “criticism against the Indian service in the United States,” with suggestions that the bia be replaced with “a gigantic trust headed by men of national and international standing who would serve as experts and consultants in the administration, development, and protection of Indian wealth,” which had overtones of heavy reliance on experts and elevating efficiency to a major goal. What seems most important in these ideas, however, is the transfer of operating authority within Indian societies from a bureaucracy of any kind to democratic structures chosen and controlled by Indians. This was the principal ideology behind the draft bill submitted to Congress in 1934, which became the ira. 31. Hertzberg, The Search for an American Indian Identity, 64 – 65; John M. Oskison, “In Governing the Indian, Use the Indian!” Case and Comment 23 (February 1917): 722 –26. 32. Finney to Senate Committee on Indian Affairs, January 23, 1922, in nab, rg 75, Collier Office File, unmarked envelope. 33. Memorandum, May 4, 1929, in nab, rg 48, ccf, 5 –11, Administrative, General, pt. 5. 34. King to Commissioner, March 15, 1910, in nab, rg 75, ccf, File 1910-47770Keshena-150. 35. Francis E. Leupp, The Indian and His Problem (New York: Charles Scribner’s Sons, 1910), 192 –94, 338 – 40. 36. Meriam, The Problem of Indian Administration, 42 – 43.

320

Notes

37. California League of Women Voters, Bulletin 3 (November 1926), in nab, rg 48, ccf, 5 – 6, General, General, pt. 7; American Indian Life 4 (May 1929): 13 –14. 38. Senate Committee on Indian Affairs, Incorporation of the Klamath Indian Corporation: Hearings, 71st Cong., 2d sess., 1930, 3 – 4. 39. Senate Committee on Indian Affairs, Indian Corporation, Klamath: Hearing, 72d Cong., 1st sess., 1932, 42 – 45, 27– 30. 40. Ibid., 40 – 42. 41. The Finney letter and the material in the following paragraph on Indian support for the bill are in nab, rg 75, Collier Office File, unmarked file. 42. Senate Committee, Indian Corporation, Klamath (1932), 7– 8, 25 –26, 46 – 47. 43. Ibid., 22. 44. Senate Committee, Survey of Conditions (1930), 35 – 36. 45. This and subsequent information about the bill are ibid., 1–5. 46. Ibid., 6 –7. 47. Senate Committee, Indian Corporation, Klamath (1932), 52 –53. 48. Ibid., 53 –54. 49. Senate Committee, Survey of Conditions (1930), 3 – 4; Senate Committee, Indian Corporation, Klamath (1932), 55 –56. 50. Senate Committee, Survey of Conditions (1930), 3 – 4. 51. Senate Committee, Indian Corporation, Klamath (1932), 1– 3. 52. Rhoads to Roger N. Baldwin, June 15, 1932, in aclu Papers, vol. 535. 53. Senate Committee, Survey of Conditions (1930), 9, 12 –14. 54. Ibid., 45. 55. Ibid., 19; Senate Committee, Indian Corporation, Klamath (1932), 49. 56. Senate Committee, Indian Corporation, Klamath (1932), 50 –51. 57. Ibid., 51. 58. House Committee, Readjustment of Indian Affairs (1934), 239 – 41. 59. Senate Committee on Indian Affairs, To Grant to Indians Living under Federal Tutelage the Freedom to Organize for Purposes of Local Self-Government and Economic Enterprise: Hearings, 73d Cong., 2d sess., 1934, 113.

c h a p t e r s i x . j o h n c o l l i e r a n d t h e t r i b a l a lt e r n at i ve 1. Kelly, Assault on Assimilation, 100. Anna Ickes, in her book on the Indians of the Southwest, referred to “John Collier’s prompt little typewriter which tapped out resolutions as quickly as they took form” (Mesa Land, 202). 2. Kelly, in Navajo Indians and Federal Indian Policy, 193 –94, has accused Collier of dishonesty in asserting that “the Indian Office ha[d] overthrown the Navajo tribal government” when it organized the Navajo Council in the early 1920s. Collier did make this remark (in American Indian Life [July–September 1926]: 1) and it was not true, but there is no evidence that he knew at the time that there had been no previous Navajo government for the entire society. He had just begun to work

Notes

321

with the Navajos and may have assumed they had some prior government at this level. 3. Kelly, Assault on Assimilation, 96 –98. 4. Philp, Collier’s Crusade for Indian Reform, 239; Lawrence C. Kelly, “John Collier and the Indian New Deal: An Assessment,” in Indian-White Relations: A Persistent Paradox, ed. Jane F. Smith and Robert M. Kvasnicka (Washington, D.C.: Howard University Press, 1976), 230. 5. This and subsequent quotations from his early religious experiences are from Collier, From Every Zenith, 24 –25, 29 – 30. It is possible that mystical experiences can be explained in psychological terms, if this means responses to the early loss of his parents or to other emotional experiences arising from interpersonal relationships. However, there appears to be no generally accepted psychological theory that could confidently explain his mystical experience in this fashion, and in any case we do not have enough information about his childhood to construct a psychological explanation in this sense. Evidently Collier never attempted to explain these crucial experiences in terms that could be reduced to interpersonal experiences. 6. Kelly, Assault on Assimilation, 19 –101; Philp, Collier’s Crusade for Indian Reform, 9 –23; Collier, From Every Zenith, 71–99. The quotation about “central purposes” is on p. 474 of Zenith. 7. Stephen J. Kunitz, “The Social Philosophy of John Collier,” Ethnohistory 18, no. 3 (summer 1971): 213 –29. 8. John Collier, “The Organized Laity and the Social Expert: The Meaning of Public Community Centers,” in Proceedings of the National Conference of Social Work (Chicago: University of Chicago Press, 1917), 464 – 66. Philp, Collier’s Crusade for Indian Reform, 10. Collier’s autobiography indicates that he continued to hold these beliefs throughout his life: “Through ninety-nine per cent of his huge time on earth— down to a few hundred years ago in Europe, down to the present in Africa, Indonesia, Asia, and among the Indians of the Americas—mankind lived the determining part of its life in face-to-face, primary, social groups; in village communities and federations of village communities. It is man’s nature to be a creator of the social” (From Every Zenith, 119). Collier, “The Organized Laity,” 465 – 67. In his autobiography he wrote: “There is only one world hope, and it is enough. It is the regeneration of the human personality through the regeneration of what one can only name as the community” (From Every Zenith, 10). 9. Kunitz, “The Social Philosophy of John Collier,” 215, 219, 221–22. 10. Collier, “The Organized Laity,” 468 – 69. 11. John Collier, The Indians of the Americas (New York: W. W. Norton and Co., 1947), 11. His son, John Collier Jr., has written that “he saw the Indian as the last remnant of natural perfection, a model that must be preserved for human rejuvenation.” Kelly, Assault on Assimilation, xiii. 12. Collier, “The Red Atlantis,” 16. 13. John Collier, “The Blue Lake Ceremonies: A Glimpse of Indian Religion,” American Indian Life 13 (October 1928): 6 –7, in Collier Papers, Yale University.

322

Notes

14. Collier, “The Red Atlantis,” 18. 15. Collier, The Indians of the Americas, 53, 72; Collier, From Every Zenith, 267. 16. Collier, From Every Zenith, 267. 17. Kelly, Assault on Assimilation, 327–28, 332. 18. Ibid., 376. 19. The following have used the term cultural pluralism to refer to Collier’s views: Kunitz, “The Social Philosophy of John Collier,” 221; Kenneth R. Philp, “John Collier and the American Indian, 1920 –1945,” in Essays on Radicalism in Contemporary America, ed. Jerome L. Rodnitzky et al. (Austin: University of Texas Press, 1972), 73; and Francis Paul Prucha in Philp, Collier’s Crusade for Indian Reform, xi, xiv; Kelly, Assault on Assimilation, 376. Dippie, The Vanishing American, 281– 84, 294 –95, 305, 315, has used the term cultural relativism. Portions of the environmental movement of recent decades have adopted a similar viewpoint about the cultures of tribal or hunting/gathering societies. For an example of a contemporary strong environmental view, see Bill Devall and George Sessions, Deep Ecology (Salt Lake City: Gibbs Smith, 1985). 20. See Esther F. Lanigan, Mary Austin: Song of a Maverick (Tucson: University of Arizona Press, 1989), especially pp. 155 –56 and 171–79. There is still no detailed account of Austin’s involvement with Indian policy. 21. nab, rg 75, Reference File of John Collier, 1939 – 45, untitled article, either June 15 or July 15, 1935. 22. Indians at Work 3, no. 12 (February 1, 1936): 1–5. 23. House Committee, Readjustment of Indian Affairs (1934), 307. 24. Parman, The Navajos and the New Deal; Bailey and Bailey, A History of the Navajos; George A. Boyce, When the Navajos Had Too Many Sheep (San Francisco: Indian Historian Press, 1974). Boyce argues (109, 147–55, 170) that the Collier grazing policy on that reservation was adopted because he wanted all Navajos to maintain their culture without change, but there is no evidence to support this view. 25. House Committee, Readjustment of Indian Affairs (1934), 64 – 67. 26. House Committee, Reservation Courts (1926), 19 –20. On the establishment of the survey, see Collier, From Every Zenith, 144 – 45; Kelly, Assault on Assimilation, 377. 27. House Committee, Reservation Courts (1926), 21. 28. House Committee, Readjustment of Indian Affairs (1934), 316; Senate Committee, To Grant to Indians (1934), 64; John Collier, “United States Indian Administration as a Laboratory of Ethnic Relations,” Social Research 12, no. 3 (September 1945): 273; John Collier, “Policies and Problems in the United States,” in The North American Indian Today, ed. C. T. Loram and T. F. McIlwraith (Toronto: University of Toronto Press, 1943), 144. 29. House Committee, Reservation Courts (1926), 115 (testimony of Wise), 19, 202 (testimony of Collier). 30. Ibid., 20 –21. 31. From Every Zenith, 143; House Committee, Reservation Courts (1926), 38. The text of the bill is on pp. 39 – 40. 32. House Committee, Reservation Courts (1926), 22, 25.

Notes

323

33. Kelly, Assault on Assimilation, 99 –100, 131– 33, 135 – 36, 228 –29, 271–74. 34. Ibid., 100. 35. Robert F. Heizer, “Treaties,” in California, ed. Robert F. Heizer, vol. 8 of Handbook of North American Indians (Washington: Smithsonian Institution, 1978), 701– 4. 36. Edward D. Castillo, “Twentieth-Century Secular Movements,” ibid., 713 –17; and Omer C. Stewart, “Litigation and Its Effects,” ibid., 705 –12. 37. Philp, Collier’s Crusade for Indian Reform, 93 –94, 102 – 3, 133 – 34. 38. “What the Situation Demands,” American Indian Life (October 1928): 17–18, in Collier Papers, Yale University. 39. Senate Committee, Conditions of Indians in the United States (1933) 20. 40. See Eyler N. Simpson, The Ejido: Mexico’s Way Out (Chapel Hill: University of North Carolina Press, 1937); Senate Committee, Conditions of Indians (1933), 20 –22. 41. Kelly, Assault on Assimilation, 16. See also Collier, From Every Zenith, 63 – 64. 42. John Collier, “Africa View—and Indian,” American Indian Life 18 (July 1931): 39 – 40, in Collier Papers, Yale University. 43. Julian Huxley, Africa View (New York: Harper and Brothers, 1931), 112, 134. 44. John Collier to Christian Science Monitor, April 19, 1934; Collier to New York Times, June 4, 1934; Collier to Springfield Republican, April 4, 1934; all in nab, rg 75, Wheeler-Howard File, 4894-1934-066, pt. 6B. 45. Collier, “Africa View—and Indian,” 36 – 39. 46. House Committee, Readjustment of Indian Affairs (1934), 37. See also Senate Committee, To Grant to Indians (1934), 31. 47. Collier, “Africa View—and Indian,” 39 – 40. 48. Kelly, Assault on Assimilation, 219, 229, 249, 281; Collier, From Every Zenith, 153, 158; Philp, Collier’s Crusade for Indian Reform, 105. 49. Michael E. Parrish, Felix Frankfurter and His Times: The Reform Years (New York: Free Press, 1982), 157–58. 50. Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America’s Struggle for Equality (New York: Alfred A. Knopf, 1976), 132 – 39, 155 –59, 186 – 87, 256 –59. See also “Nathan R. Margold: Record,” in aclu Papers, vol. 615, p. 146; New York Times, May 21, 1932, 18. 51. “Nathan R. Margold: Record,” in aclu Papers. 52. Roger N. Baldwin to John Collier, February 5, 1932; Collier to Baldwin, February 6, 1932; Collier to Baldwin, March 4, 1932; all in aclu Papers, vol. 534, pp. 101, 194. 53. Margold to Baldwin, March 23, 1932, memorandum of April 21, 1932, conference, Baldwin to Indian Rights Committee, March 23 and June 13, 1932, all ibid., vol. 534, p. 117. 54. Collier to Baldwin, February 6, 1932. 55. American Indian Life 21 (January 1933), in nab, rg 75, Collier Office File, File “Scrapbook Fragments.” 56. The material in this section is from nab, rg 75, ccf, File 9538-1932-054. 57. Memorandum, Rhoads to Wilbur, May 26, 1932, ibid. 58. Wilbur to Representative Howard and Senator Frazier, May 28, 1932, ibid.

324

Notes

59. Scattergood to Baldwin, June 15, 1932, in aclu Papers, vol. 535, p. 348. 60. “Why Constructive Indian Legislation Is Not Being Passed,” June 3, 1932, in nab, rg 75, Reference File of John Collier, 1939 – 45, envelope marked “JC — MSS Before 1933.” 61. Most of the statement was read into the Congressional Record by Senator King of Utah on March 9, 1932. Congressional Record, Senate, pp. 5547– 49. 62. Collier to Baldwin, March 4, 1932.

c h a p t e r s e ve n . d r a f t i ng t h e i r a p r o p o s a l 1. Lawrence C. Kelly, “Choosing the New Deal Indian Commissioner: Ickes v. Collier,” New Mexico Historical Review 44 (1974): 268 – 88. John Collier gives a somewhat misleading account of this question in his autobiography; see From Every Zenith, 169 –72. 2. Kvasnicka and Viola, The Commissioners of Indian Affairs, 123 – 33. Burton K. Wheeler, with Paul F. Healy, Yankee from the West (Garden City, N.Y.: Doubleday and Co., 1962), 315. Kelly mentions no Indians considered for the post, and two files having to do with this subject at the Roosevelt Library at Hyde Park yielded no Indian names. For references to Indians proposed, see American Indian Life 21 (January 1933), 22, in Collier Papers, Yale University; Hertzberg, “Indian Rights Movement,” 310; and Crum, “Henry Roe Cloud,” 182 – 83. 3. See press release, April 15, 1933, in Collier Papers, Yale University, Pt. 2, Ser. 3, Folder 104, and Kelly, “Choosing the New Deal Commissioner,” 284. 4. See T. H. Watkins, Righteous Pilgrim: The Life and Times of Harold L. Ickes, 1874 –1952 (New York: Henry Holt and Co., 1990), 201–5, 354, 361– 62, and A. W. Ickes, Mesa Land. 5. Harold L. Ickes Papers, Library of Congress, Container 32, File “General Correspondence/1903 –1933/‘Indian Affairs’ Legislation/1923 –1930,” Ickes to Malcolm McDowell, January 13, 1923, File “General Correspondence/1903 –1933/ ‘Indian Rights Association’/1923 –1932,” and Kelly, “Choosing the New Deal Indian Commissioner,” 271–72. 6. Ickes to Senator Carl Hayden, April 16, 1940, in Cohen Papers, Box 93, Folder 1500 (“Margold Judgeship, 1935 – 44”). 7. U.S. Civil Service Commission, Official Register of the United States (1932), 60 – 62, (1933), 56 – 60. 8. nab, rg 75, Collier Office File, File “Regional Organization.” 9. Congressional Record, House, June 15, 1934, p. 11729; Collier to Crawford, June 7, 1933, in nab, rg 75, Collier Office File, Box C-M, File “Miscellaneous correspondence from Commissioner Collier’s office.” 10. Philp, Collier’s Crusade for Indian Reform, 117; D’Arcy McNickle, “Commmentary,” in Indian-White Relations, ed. Smith and Kvasnicka, 255. 11. Kvasnicka and Viola, The Commissioners of Indian Affairs, 273, 285 – 86. 12. nab, rg 48, ccf, 5 –11, Administrative, General, 1929 – 36, pt. 8.

Notes

325

13. Collier, “Indian Administration—Some Policies, Hopes, and Fears,” 668 – 69. 14. William Zimmerman Jr., “The Role of the Bureau of Indian Affairs since 1933,” Annals of the American Academy of Political and Social Science 311 (May 1957): 31. 15. Handbook of Federal Indian Law, 1982, 146; Annual Report of the Secretary of the Interior for the Fiscal Year Ended June 30, 1933 (Washington, D.C.: Government Printing Office, 1933), 100. 16. nab, rg 75, Collier Office File; Philp, Collier’s Crusade for Indian Reform, 131– 32. 17. 48 u.s. Stat. 45, Sec. 5; Philp, Collier’s Crusade for Indian Reform, 118; Freeman, “The New Deal for Indians,” 112 –14. 18. “Minutes of the meeting of the friends of the Indians,” January 15, 1933, in aclu Papers, vol. 615, p. 26. 19. Lindquist, The Red Man in the United States; Gessner, Robert, Massacre: A Survey of Today’s American Indian (New York: Jonathan Cape and Harrison Smith, 1931). 20. 44 u.s. Stat., Title 25, Secs. 173, 222. 21. nab, rg 75, Wheeler-Howard File, File 4894-1934-066, pt. 9. 22. nab, rg 75, ccf, File 24359-33-013. 23. Collier, “Indian Administration—Some Policies, Hopes, and Fears,” 675. 24. Franklin D. Roosevelt Presidential Library, Official File 6, Box 1, File “Interior Dept., 1933.” 25. nab, rg 75, Wheeler-Howard File, 4894-1934-066, pts. 10B and C. 26. Collier, From Every Zenith, 216. A summary of the replies is printed in the Senate hearings on the ira. Senate Committee, To Grant to Indians (1934), 271– 81. Kroeber stated in 1938 that he had never publicly endorsed Collier’s or any other reform program. He wrote, “Years ago I explained my attitude to Mr. Collier and those of my friends who are also his friends, and have maintained it ever since. One thing I can perhaps contribute on behalf of the Indians is expert and impartial information or advice on specific points. This impartiality would be lost if I took sides or endorsed any program.” Kroeber to Jay B. Nash, October 11, 1938, in aclu Papers, vol. 1094, p. 206. 27. See Lawrence C. Kelly, “Anthropology and Anthropologists in the Indian New Deal,” Journal of the History of the Behavioral Sciences 16, no. 1 (January 1980): 6 –24; and Graham D. Taylor, “Anthropologists, Reformers, and the Indian New Deal,” Prologue 7 (fall 1975): 151– 62. 28. nab, rg 75, Wheeler-Howard File, 4894-1934-066, pts. 10B and C. 29. Collier to Senator Wheeler, January 17, 1934, in nab, rg 75, General Services, File 23663-1934-013. 30. nab, rg 75, Wheeler-Howard File, File 4894-1934-066, pt. 7, Collier memorandum to Vera Connolly, January 17, 1934. 31. Ibid., pt. 11, Minutes of Kiowa meeting, March 5, 1934, 65. 32. Ibid., Minutes of Anadarko meeting, March 22, 1934, 2. 33. Senate Committee, To Grant to Indians (1934), 85 – 87. 34. David W. Brady has shown that this high level of partisan voting, combined

326

Notes

with massive changes in committee structures, occurs only following the rare elections in which the two major parties differ significantly on issues and there is a massive realignment of the party and policy preferences of the electorate. He suggests that in recent history only the Congresses following the elections of 1896, 1932 –1936, and 1964 behaved in this fashion. Such Congresses approve significant changes in policy if there is strong leadership for change on the part of a president of the same party as the Congressional majorities. David W. Brady, “Critical Elections, Congressional Parties, and Clusters of Policy Changes,” in Studies of Congress, ed. Glenn R. Parker (Washington: Congressional Quarterly, Inc., 1985), 533 – 34, 539 – 40. 35. Wheeler, Yankee from the West, 314. 36. Although later appointed to the Supreme Court by Franklin Roosevelt, Frankfurter was at that time still a professor of law at Harvard and a person often relied upon by the early New Deal for advice and suggestions about brilliant young people willing to serve the new administration. Felix S. Cohen, Ethical Systems and Legal Ideals: An Essay on the Foundation of Legal Criticism (New York: Harcourt, Brace, 1933); Lucy Cohen, personal communication, August 17, 1983; Kenneth R. Philp, ed., Indian Self-Rule: First-Hand Accounts of Indian-White Relations from Roosevelt to Reagan (Salt Lake City: Howe Brothers, 1986), 71–72. See also the comments of Charlotte Lloyd Walkup in the Philp book, 72 –73. Lucy Cohen later helped her husband with writing of the Handbook of Federal Indian Law and after his death published a book of his essays. On the writing of the handbook, see Jill E. Martin, “‘A Year and a Spring of My Existence’: Felix S. Cohen and the Handbook of Federal Indian Law,” Western Legal History 8, no. 1 (1995): 35 – 60. 37. “Annual Report of the Solicitor” for fiscal year ending June 30, 1934, in Cohen Papers, Box 49, Folder 741 (“Personnel Files/Official Status”). The annual report indicates that, in addition to 884 reports to congressional committees and more than fifty appearances before committees, Cohen and Siegel drafted the WheelerHoward Act, the Taylor Grazing Act, a bill to tax crude petroleum, a bill revising the reclamation act, a soil erosion control bill for the Gila River Basin, and a bill “providing for a comprehensive system of State parks.” The Fahy material is from Collier to Franklin D. Roosevelt, February 4, 1933, in Collier Papers, Yale University. 38. Cohen Papers, Box 49, Folder 741 (“Personnel Files/Official Status”). 39. This and other materials on the timing of bill drafting not otherwise identified are from nab, rg 48, File 1933-1-013. 40. Senate Committee, To Grant to Indians (1934), 147; James M. Glover, A Wilderness Original: The Life of Bob Marshall (Seattle: The Mountaineers, 1986), 112 –13. Shepard left the Bureau in 1936 to head a forestry program at Harvard University. New York Times, February 26, 1936, p. 15, col. 5. 41. Collier, From Every Zenith, 229 – 30, 173. 42. This and subsequent material quoting from drafting documents, not cited otherwise, are from nab, rg 75, Wheeler-Howard File, File 4894-1934-066, pt. 11. 43. Proceedings of the National Conference of Social Work (Chicago: University of Chicago Press, 1934), 539 – 47.

Notes

327

44. House Committee, Readjustment of Indian Affairs (1934), 428 – 89; Otis, The Dawes Act and the Allotment of Indian Lands. 45. Cohen to Wechsler, January 22, 1934, in Cohen Papers, Box 7, Folder 98, “Indian-misc./Letters-carbons 1933 – 34.” 46. Glover, A Wilderness Original, 111. 47. Ibid., 272. 48. See Robert Marshall, “The Present Government Indian Policy in the United States,” in Proceedings of the National Conference of Social Work (Chicago: University of Chicago Press, 1935), 575 – 81. 49. The documents not otherwise cited in this section are from nab, rg 75, Wheeler-Howard File, File 4894-1934-066, pt. 11C, sec. 3. 50. Freeman, “The New Deal for Indians,” 120. 51. nab, rg 75, Wheeler-Howard File, File 4894-1934-066, pt. 2A, sec. 1. 52. Collier to Merriam, May 5, 1934, ibid., pt. 6A. 53. Collier, From Every Zenith, 173. 54. aclu Papers, vol. 615, p. 261. 55. The minutes of this meeting are in aclu Papers, vol. 701, pp. 297– 302. 56. nab, rg 75, Wheeler-Howard File, File 4894-1934-066, pt. 11C, sec. 3. 57. Ibid., pt. 1A. 58. This correspondence is mostly ibid., pts. 1A and 1B. 59. Collier, From Every Zenith, 164. 60. nab, rg 75, Wheeler-Howard File, File 4894-1934-066, pt. 2A, sec. 2, Minutes of the Miami, Oklahoma meeting, March 24, 1934, 56. For a brief biography of Curtis, see William E. Unrau, “Charles Curtis: The Politics of Allotment,” in Indian Lives: Essays on Nineteenth- and Twentieth-Century Native American Leaders, ed. L. G. Moses and Raymond Wilson (Albuquerque: University of New Mexico Press, 1985), 113 – 38.

c h a p t e r e i g h t . t h e i r a b e f o r e c o ng r e s s : s ta l e mat e a n d r e s p o n s e 1. This and subsequent quotations from the bill are from House Committee, Readjustment of Indian Affairs (1934), 1–14. 2. Deloria and Lytle, The Nations Within, 70. 3. Ibid. 4. House Committee, Readjustment of Indian Affairs (1934), 20. 5. Ibid., 102 – 3. 6. Ibid., 23. 7. Deloria and Lytle, The Nations Within, 70. 8. Sharon O’Brien, American Indian Tribal Governments (Norman: University of Oklahoma Press, 1989), 89. 9. Handbook of Federal Indian Law, 1982, 202 – 4, 243 – 44. 10. House Committee, Readjustment of Indian Affairs (1934), 152 –53.

328

Notes

11. Deloria and Lytle, The Nations Within, 78, 77. 12. Senate Committee, To Grant to Indians (1934), 36. 13. Ibid., 147. 14. Freeman, “The New Deal for Indians,” 147, 80 – 81; Kelly, “John Collier and the Indian New Deal,” in Indian-White Relationships, ed. Smith and Kvasnicka, 230. 15. Senate Committee, To Grant to Indians (1934), 89. 16. Ibid., 100. 17. House Committee, Readjustment of Indian Affairs (1934), 142, 310 –11; Deloria and Lytle, The Nations Within, 66, 82 – 83. 18. Wheeler, Yankee from the West, 315. 19. House Committee, Readjustment of Indian Affairs (1934), 311; Deloria and Lytle, The Nations Within, 132 – 33, discuss the similar objections of Joseph Bruner and his group. 20. Senate Committee, To Grant to Indians (1934), 152. 21. Freeman, “The New Deal for Indians,” 62 – 63, 237– 40; Senate Committee, To Grant to Indians (1934), 148, 174. 22. Scattergood to Wilbur, May 4, 1933, in Wilbur Papers, Box 68, File “Scattergood, J. Henry.” 23. Deloria and Lytle, The Nations Within, 136. 24. Freeman, “The New Deal for Indians,” 83. 25. Senate Committee, To Grant to Indians (1934), 33. 26. Wheeler, Yankee from the West, 315. 27. fdr Library, of, sec. 296, Indians, Box 1, File “Indians 1933 –1934.” 28. nab, rg 75, Wheeler-Howard File, File 4894-1934-066, pt. 11, sec. 4. 29. fdr Library of, 296, Box 1, File “Indians 1933 –1934.” 30. nab, rg 75, Wheeler-Howard File, File 4894-1934-066, pt. 7. 31. Ibid., pt. 11C, sec. 3. 32. fdr Library of, 296, Box 1, File “Interior Department . . . 1934.” 33. nab, rg 75, Wheeler-Howard File, File 4894-1934-066, pt. 7. 34. House Committee, Readjustment of Indian Affairs (1934), 372; Freeman, “The New Deal for Indians,” 198. 35. Senate Committee, To Grant to Indians (1934), 372 –73. Seymour was violently opposed to Collier’s views on Indian policy. See Deloria and Lytle, The Nations Within, 112; and Taylor, The New Deal and American Indian Tribalism, 24. 36. nab, rg 75, Wheeler-Howard File, File 4894-1934-066, pt. 11C, sec. 4. 37. Congressional Record, House, 73d Cong., 2d sess., June 15, 1934, p. 11738. See also aclu Papers, vol. 701, p. 238. 38. fdr Library of, 6, Container 8, File “Interior Department, Office of Indian Affairs, 1934.” 39. House Committee, Readjustment of Indian Affairs (1934), 234. 40. Senate Committee, To Grant to Indians (1934), 57, 101. 41. Ibid., 146. 42. Ibid., 77.

Notes

329

43. New York Times, April 29, 1934, p. 34, col. 3. 44. fdr Library of, 6, Box 1, File “Official File, 1933 –1934,” Memorandum, Secretary Ickes to M. H. McIntyre, May 4, 1934, undated “Memo in President’s handwriting,” Memorandum for Mr. McIntyre, June 1, 1934, and Ickes to Roosevelt, June 2, 1934. of 6, Box 1, File “Indians 1933 –1934,” contains an undated note by Roosevelt stating, “Call up Cong. Howard-Howard-Wheeler Indian Bill-Ask that it be reported-I hope it will pass.” 45. Senate Committee, To Grant to Indians (1934), 61– 62, 87, 184 – 87, 193 –96. 46. Ibid., 170, 136. 47. Ibid., 170 –71. 48. Ibid., 248 –50. 49. Ibid., 96 –97. 50. Ibid., 69, 177–78. 51. House Committee, Readjustment of Indian Affairs (1934), 15. 52. Crum, “Henry Roe Cloud,” 179 – 82. 53. Deloria and Lytle devote a chapter to them. Deloria and Lytle, The Nations Within, 101–21. 54. nab, rg 75, Wheeler-Howard File, File 4894-1934-066, pt. 1B, Meeting of March 15 –16, 1934, 41. 55. nab, rg 75, Wheeler-Howard File, File 4894-1934-066, pt. 3A. 56. House Committee, Readjustment of Indian Affairs (1934), 397. 57. Congressional Record, House, 73d Cong., 2d sess., June 15, 1934, p. 11731. 58. House Committee, Readjustment of Indian Affairs (1934), 194 –99, 100. 59. Ibid., 193. 60. nab, rg 75, Wheeler-Howard File, 4894-1934-066, pt. 1B, Meeting of March 15 –16, 1934, 9. 61. House Committee, Readjustment of Indian Affairs (1934), 497, 506. 62. These events are recounted in Freeman, “The New Deal for Indians,” 294 –97. Unfortunately neither of Freeman’s sources seems to have survived. In August 1983, I contacted Professor Freeman at Vanderbilt University to ask if he still had the letter from Zimmerman and notes on the interview. He replied by card on August 28, 1983, and by telephone on August 29, 1984, that he had searched his records but could not find them. After his death, his papers were turned over to the Vanderbilt University Library; in 1988 I was informed by library officials at Vanderbilt that the Zimmerman documents were not among these papers. 63. Senate Committee, To Grant to Indians (1934), 237. Senator Wheeler was chair of this subcommittee; the other members were Senators Elmer Thomas (Democrat of Oklahoma) and Frederick Stiewer (an Oregon Republican). Wheeler to Collier, May 12, 1934, in nab, rg 75, Wheeler-Howard File, File 4984-1934-066, pt. 7. 64. Papers of Robert Leland, University of Nevada, Reno, Special Collections. 65. This and the material in the next paragraph are from Freeman, “The New Deal for Indians,” 245. 66. nab, rg 75, Wheeler-Howard File, File 4894-1934-066, pt. 11C, sec. 4.

330

Notes

67. Senate Committee, To Grant to Indians (1934), 267. 68. Ibid., 173 – 83, 211–17. 69. Ibid., 211–16; House Committee, Readjustment of Indian Affairs (1934), 332 – 40. See also Deloria and Lytle, The Nations Within, 132. 70. Memorandum, Collier to Ickes, April 18, 1934, in nab, rg 48, ccf, 5 – 6, General, General, pt. 9. 71. House Committee, Readjustment of Indian Affairs (1934), 261–91. 72. Senate Committee, To Grant to Indians (1934), 256 –59. 73. House Committee, Readjustment of Indian Affairs (1934), 499 –500; Senate Committee, To Grant to Indians (1934), 132 – 41. 74. Senate Committee, To Grant to Indians (1934), 51–53, 108 –9, 219 –20. 75. Ibid., 352, 407– 8; Freeman, “The New Deal for Indians,” 155. 76. House Committee, Readjustment of Indian Affairs (1934), 389 –92.

chapter nine. after the summit: the final form of the ira 1. This and subsequent quotations from the law are from U.S. Statutes (1934): chap. 576. 2. House Committee, Readjustment of Indian Affairs (1934), 133. 3. Ibid., 156 –70. 4. Ibid., 165. 5. Ibid., 185 –95. 6. Senate Committee, To Grant to Indians (1934), 261– 63. 7. U.S. House of Representatives, 73d Cong., 2d sess., 1934, Report No. 1804, 5. 8. nab, rg 75, Wheeler-Howard File, File 4994-1934-066, pt. 11C, sec. 2, 19 –20. Subsequent quotations from this document are from this file. 9. House, Report No. 1804, 7. 10. The Code of Laws of the United States . . . (Washington, D.C.: Government Printing Office, 1926), Title 25, Sec. 81. 11. House Committee, Readjustment of Indian Affairs (1934), 92 –93. 12. This and the following material are from Senate Committee, To Grant to Indians (1934), 244 – 47. 13. Handbook of Federal Indian Law, 1982, 3 –19; American Indian Policy Review Commission, Final Report (Washington, D.C.: Government Printing Office, 1977), 461– 84. 14. 417 u.s. 535 (1974). 15. 231 u.s. 28 (1913). 16. This and the following material are from Senate Committee, To Grant to Indians (1934), 150, 263 – 64, 266. 17. House Committee, Readjustment of Indian Affairs (1934), 108 –9; Senate Committee, To Grant to Indians (1934), 15 –16. 18. House Committee, Readjustment of Indian Affairs (1934), 72 –73, 134. Congress did not create an Indian Claims Commission until 1946.

Notes

331

19. Congressional Record, Senate, June 6, 1934, p. 10583. The material on the main debate is from Congressional Record, Senate, June 12, 1934, pp. 11122 – 39. 20. New York Times, June 13, 1934, p. 6, col. 1. 21. Congressional Record, Senate, June 12, 1934, pp. 12001– 4. 22. Congressional Record, House, June 15, 1934, pp. 11724 – 44. 23. nab, rg 75, Wheeler-Howard File, File 4894-1934-066, pt. 7. 24. Congressional Record, House, May 22, 1934, pp. 9265 – 671. 25. Ibid., June 15, 1934, pp. 11226 –29. 26. Ibid., pp. 11733 – 35; Laurence M. Hauptman, The Iroquois and the New Deal (Syracuse: Syracuse University Press, 1981). 27. Congressional Record, House, June 15, 1934, pp. 11733 – 35. 28. Ibid., pp. 11743 – 44. 29. Ibid., pp. 12161– 65. 30. Congressional Record, Senate, June 16, 1934, pp. 12001– 4; New York Times, June 16, 1934, pp. 1, 7.

chapter ten. conclusion 1. The relative insignificance of Native American policy can be gauged in part by the treatment— or lack of it—given to the subject in various histories and/or accounts of the life of Franklin D. Roosevelt. 2. Critchlow, “Lewis Meriam, Expertise, and Indian Reform,” 334, citing John Collier, “Hammering at the Prison Gate,” Survey, July 11, 1928. 3. Taylor, “The Tribal Alternative to Bureaucracy,” 133. 4. Nathan Margold to Secretary of the Interior, October 25, 1934, 3, in nab, rg 75, Wheeler-Howard File, File 4894-1934-066, pt. 3B. 5. Materials on the early implementation of the ira can be found in the Cohen Papers, Yale University, chiefly Box 7, Folders 100 –1, Box 8, Folders 117 and 118, and Box 9, Folders 120 –23. Folder 101 contains a very interesting 222-page “Basic Memorandum on Drafting of Tribal Constitutions” by Cohen. 6. House Committee, Readjustment of Indian Affairs (1934), 20. 7. These and following quotations are from Freeman, “The New Deal for Indians,” 272 –73. 8. Smith and Kvasnicka, Indian-White Relationships, 234, 240. 9. See, for example, Russel Lawrence Barsh and James Youngblood Henderson, The Road: Indian Tribes and Political Liberty (Berkeley: University of California Press, 1980), and Wilkins, American Indian Sovereignty. 10. American Indian Policy Review Commission, Final Report, 7, 308; Kirke Kickingbird and Karen Ducheneaux, One Hundred Million Acres (New York: Macmillan, 1973), 210. Bureau of Indian Affairs, Annual Report of Indian Lands, http://doc.gov/ bia/realty/area97.html. 11. C. Matthew Snipp, American Indians: The First of This Land (New York: Russell Sage Foundation, 1989), 85 – 86.

332

Notes

12. Wilkins, American Indian Sovereignty, 275 –96. 13. Lawrence C. Kelly, “The Indian Reorganization Act: The Dream and the Reality,” Pacific Historical Review 66, no. 3 (August 1975): 291– 312. 14. Patricia Simmons, “Organizational Status of Federally Recognized Indian Entities,” Memorandum, Tribal Government Services, Bureau of Indian Affairs, July 21, 1981. Simmons had written earlier memoranda on this topic, in 1976 and 1978. For an account of how a number of Native American governments operate today, see O’Brien, American Indian Tribal Governments. 15. Elmer R. Rusco, “Civil Liberties Guarantees under Tribal Law: A Survey of Civil Rights Provisions in Tribal Constitutions,” American Indian Law Review 14 (1989): 269 –99. 16. Deloria and Lytle, American Indians, American Justice. 17. Vine Deloria Jr., Behind the Trail of Broken Treaties: An Indian Declaration of Independence (New York: Dell Publishing Co., 1974). 18. See, for example, James E. Falkowski, Indian Law/Race Law: A Five-HundredYear History (New York: Praeger, 1992), and Roxanne Dunbar Oritz, Indians of the Americas: Human Rights and Self-Determination (London: Zed Books Ltd., 1984); New York Times, August 5, 1998, sec. A, pp. 1, 8, December 30, 1999, sec. A, p. 4.

Bibliography

books Bailey, Garrick, and Roberta Glenn Bailey. A History of the Navajos: The Reservation Years. Santa Fe: School of American Research, 1986. Barsh, Russel Lawrence, and James Youngblood Henderson. The Road: Indian Tribes and Political Liberty. Berkeley: University of California Press, 1980. Boyce, George A. When the Navajos Had Too Many Sheep. San Francisco: Indian Historian Press, 1974. Burt, Larry W. Tribalism in Crisis: Federal Indian Policy, 1953–1961. Albuquerque: University of New Mexico Press, 1982. Carlson, Leonard A. Indians, Bureaucrats, and Land: The Dawes Act and the Decline of Indian Farming. Westport, Conn.: Greenwood Press, 1981. Churchill, Ward. Struggle for the Land: Indigenous Resistance to Genocide, Ecocide, and Expropriation in Contemporary North America. Monroe, Maine: Common Courage Press, 1993. Clark, Blue. Lone Wolf v. Hitchcock: Treaty Rights and Indian Law at the End of the Nineteenth Century. Lincoln: University of Nebraska Press, 1994. Cohen, Felix S. Ethical Systems and Legal Ideals: An Essay on the Foundation of Legal Criticism. New York: Harcourt, Brace, 1933. ———. Felix S. Cohen’s Handbook of Federal Indian Law: 1982 Edition. Charlottesville, Va.: Michie Bobbs-Merrill, 1982. ———. Handbook of Federal Indian Law: 1942 Edition. Washington, D.C.: Government Printing Office, 1942. Collier, John. From Every Zenith: A Memoir and Some Essays on Life and Thought. Denver: Sage Books, 1963. ———. The Indians of the Americas. New York: W. W. Norton and Co., 1947. ———. On the Gleaming Way. Chicago: Sage Books, 1962. Congressional Research Service, Library of Congress. The Constitution of the United States of America: Analysis and Interpretation. Washington, D.C.: Government Printing Office, 1973. The Constitutions and Laws of the American Indian Tribes. 1878. Reprint, Wilmington, Del.: Scholarly Resources, Inc., 1975. 20 vols. Dale, Edward Everett. The Indians of the Southwest. Norman: University of Oklahoma Press, 1949. Debo, Angie. And Still the Waters Run: The Betrayal of the Five Civilized Tribes. Princeton: Princeton University Press, 1968.

333

334

Bibliography

Deloria, Vine, Jr. Behind the Trail of Broken Treaties: An Indian Declaration of Independence. New York: Dell Publishing Co., 1974. Deloria, Vine, Jr., and Clifford M. Lytle. American Indians, American Justice. Austin: University of Texas Press, 1983. ———. The Nations Within: The Past and Future of American Indian Sovereignty. New York: Pantheon Books, 1984. DeMallie, Raymond J., ed. The Sixth Grandfather: Black Elk’s Teachings Given to John G. Neihardt. Lincoln: University of Nebraska Press, 1984. Devall, Bill, and George Sessions. Deep Ecology. Salt Lake City: Gibbs Smith, 1985. Dickerson, Reed. The Interpretation and Application of Statutes. Boston: Little, Brown, and Co., 1975. Dippie, Brian W. The Vanishing American: White Attitudes and U.S. Indian Policy. Lawrence: University Press of Kansas, 1982. Falkowski, James E. Indian Law/Race Law: A Five-Hundred-Year History. New York: Praeger, 1992. Fritz, Henry E. The Movement for Indian Assimilation, 1860 –1890. Philadelphia: University of Pennsylvania Press, 1963. Gessner, Robert. Massacre: A Survey of Today’s American Indian. New York: Jonathan Cape and Harrison Smith, 1931. Gibson, Arrell Morgan. The American Indian: Prehistory to the Present. Lexington, Mass.: D. C. Heath and Co., 1980. Glover, James M. A Wilderness Original: The Life of Bob Marshall. Seattle: The Mountaineers, 1986. Gross, Emma R. Contemporary Federal Policy toward American Indians. New York: Greenwood Press, 1989. Gunther, Gerald. Cases and Materials on Individual Rights in Constitutional Law. 2d ed. Mineola, N.Y.: Foundation Press, 1976. Hagan, William T. Indian Police and Judges: Experiments in Acculturation and Control. New Haven: Yale University Press, 1966. Hahn, Emily. Mabel: A Biography of Mabel Dodge Luhan. New York: Houghton Mifflin, 1977. Hargrett, Lester. A Bibliography of the Constitutions and Laws of the American Indians. Cambridge: Harvard University Press, 1947. Harring, Sidney L. Crow Dog’s Case: American Indian Sovereignty, Tribal Law, and United States Law in the Nineteenth Century. New York: Cambridge University Press, 1994. Harris, Marvin. The Rise of Anthropological Theory. New York: Thomas Y. Crowell, 1968. Hart, Albert Bushnell, and Herbert Ronald Ferleger. Theodore Roosevelt Cyclopedia. New York: Roosevelt Memorial Association, 1941. Hatch, Elvin. Theories and Man and Culture. New York: Columbia University Press, 1973. Hauptman, Laurence M. The Iroquois and the New Deal. Syracuse: Syracuse University Press, 1981.

Bibliography

335

———. The Iroquois Struggle for Survival: World War II to Red Power. Syracuse: Syracuse University Press, 1986. Heizer, Robert F., ed. California. Vol. 8 of Handbook of North American Indians. Washington, D.C.: Smithsonian Institution, 1978. Hertzberg, Hazel W. The Search for an American Indian Identity: Modern Pan-Indian Movements. Syracuse: Syracuse University Press, 1971. Hill, W. W. An Ethnography of Santa Clara Pueblo, New Mexico. Albuquerque: University of New Mexico Press, 1982. Hoxie, Frederick E. A Final Promise: The Campaign to Assimilate the Indians, 1880 – 1920. Lincoln: University of Nebraska Press, 1984. Huxley, Julian. Africa View. New York: Harper and Brothers, 1931. Ickes, Anna Wilmarth. Mesa Land: The History and Romance of the American Southwest. Boston: Houghton Mifflin Co., 1933. Ickes, Harold L. The Secret Diary . . . : The First Thousand Days. New York: Simon and Schuster, 1953. Iverson, Peter. Carlos Montezuma and the Changing World of American Indians. Albuquerque: University of New Mexico Press, 1982. ———. The Navajo Nation. Westport, Conn.: Greenwood Press, 1981. Keller, Robert H., Jr. American Protestantism and United States Indian Policy, 1869 – 82. Lincoln: University of Nebraska Press, 1983. Kellogg, Laura Cornelius [Wynnogene]. Our Democracy and the American Indian: A Comprehensive Presentation of the Indian Situation as It Is Today. Kansas City, Mo.: Burton Publishing Co., 1920. Kelly, Lawrence C. The Assault on Assimilation: John Collier and the Origins of Indian Policy Reform. Albuquerque: University of New Mexico Press, 1983. ———. The Navajo Indians and Federal Indian Policy, 1900 –1935. Tucson: University of Arizona Press, 1968. Kelly, William H., ed. Indian Affairs and the Indian Reorganization Act: The Twenty Year Record. Tucson: University of Arizona Press, 1954. Kickingbird, Kirke, and Karen Ducheneaux. One Hundred Million Acres. New York: Macmillan, 1973. Kluger, Richard. Simple Justice: The History of Brown v. Board of Education and Black America’s Struggle for Equality. New York: Alfred A. Knopf, 1976. Kvasnicka, Robert M., and Herman J. Viola, eds. The Commissioners of Indian Affairs, 1824 –1977. Lincoln: University of Nebraska Press, 1979. Lanigan, Esther F. Mary Austin: Song of a Maverick. Tucson: University of Arizona Press, 1989. Legters, Lyman H., and Fremont J. Lyden, eds. American Indian Policy: SelfGovernance and Economic Development. Westport, Conn.: Greenwood Press, 1994. Leupp, Francis E. The Indian and His Problem. New York: Charles Scribner’s Sons, 1910. ———. In Red Man’s Land: A Study of the American Indian. New York: Fleming H. Revell Co., 1914.

336

Bibliography

Levine, Stuart, and Nancy O. Lurie, eds. The American Indian Today. Baltimore: Penguin Books, 1968. Lindquist, G. E. E. The Red Man in the United States. New York: George H. Doran Co., 1923. Loram, C. T., and T. F. McIlwraith, eds. The North American Indian Today. Toronto: University of Toronto Press, 1943. Luhan, Mabel Dodge. Movers and Shakers. Vol. 3 of Intimate Memoirs. New York: Harcourt, Brace, and Co., 1936. Mardock, Robert W. The Reformers and the American Indian. Columbia: University of Missouri Press, 1971. Markmann, Charles Lam. The Noblest Cry: A History of the American Civil Liberties Union. New York: St. Martin’s Press, 1965. Martin, Calvin. Keepers of the Game: Indian-Animal Relationships and the Fur Trade. Berkeley: University of California Press, 1978. McNickle, D’Arcy. Indian Man: A Life of Oliver LaFarge. Bloomington: University of Indiana Press, 1971. Mead, Margaret. The Changing Culture of an Indian Tribe. 1932. Reprint, New York: Capricorn Books, 1966. Meriam, Lewis, et al. The Problem of Indian Administration. 1928. Reprint, New York: Johnson Reprint Corporation, 1971. Miner, H. Craig. The Corporation and the Indian: Tribal Sovereignty and Industrial Civilization in Indian Territory, 1865 –1907. Columbia: University of Missouri Press, 1976. O’Brien, Sharon. American Indian Tribal Governments. Norman: University of Oklahoma Press, 1989. Ortiz, Alfonso, ed. Southwest. Vol. 9 of Handbook of North American Indians. Washington, D.C.: Smithsonian Institution, 1979. Ortiz, Roxanne Dunbar. Indians of the Americas: Human Rights and Self-Determination. London: Zed Books Ltd., 1984. Otis, D. S. The Dawes Act and the Allotment of Indian Lands. Norman: University of Oklahoma Press, 1973. Paisano, Edna, et al. American Indian Population by Tribe for the United States, Regions, Divisions, and States: 1990. Washington, D.C.: Bureau of the Census, 1992. Parman, Donald C. The Navajos and the New Deal. New Haven: Yale University Press, 1976. Parrish, Michael E. Felix Frankfurter and His Times: The Reform Years. New York: Free Press, 1982. Philp, Kenneth R. John Collier’s Crusade for Indian Reform, 1920 –1954. Tucson: University of Arizona Press, 1977. ———, ed. Indian Self-Rule: First-Hand Accounts of Indian-White Relations from Roosevelt to Reagan. Salt Lake City: Howe Brothers, 1986. Pommersheim, Frank. Braid of Feathers: American Indian Law and Contemporary Tribal Life. Berkeley: University of California Press, 1995.

Bibliography

337

Pratt, Richard Henry. Battlefield and Classroom. New Haven: Yale University Press, 1964. Pressler, Larry. U.S. Senators from the Prairie. Vermillion, S.D.: University of South Dakota Press, 1982. Price, Monroe E. Law and the American Indian: Readings, Notes, and Cases. Indianapolis: Bobbs-Merrill Co., 1973. Priest, Loring Benson. Uncle Sam’s Stepchildren: The Reformation of United States Indian Policy, 1865 –1887. Lincoln: University of Nebraska Press, 1942. Prucha, Francis Paul. American Indian Policy in Crisis. Norman: University of Oklahoma Press, 1976. ———. American Indian Treaties: The History of a Political Anomaly. Berkeley: University of California Press, 1994. ———, ed. Americanizing the American Indians: Writings by the ‘Friends of the Indian,’ 1880 –1900. Cambridge: Harvard University Press, 1973. Rosen, Lawrence, ed. American Indians and the Law. New Brunswick, N.J.: Transaction Books, 1976. Schmeckebier, Laurence F. The Office of Indian Affairs: Its History, Activities, and Organization. Baltimore: Johns Hopkins Press, 1927. Schusky, Ernest L., ed. Political Organization of Native North Americans. Washington, D.C.: University Press of America, 1980. Shepardson, Mary. Navajo Ways in Government: A Study in Political Process. Memoir 96, American Anthropological Association. June 1963. Simpson, Eyler N. The Ejido: Mexico’s Way Out. Chapel Hill: University of North Carolina Press, 1937. Smith, J. Allen. The Spirit of American Government. London: Macmillan Co., 1912. Smith, Jane F., and Robert M. Kvasnicka, eds. Indian-White Relationships: A Persistent Paradox. Washington, D.C.: Howard University Press, 1976. Sutton, Imre. Indian Land Tenure. New York: Clearwater Publishing Co., 1975. ———, ed. Irredeemable America. Albuquerque: University of New Mexico Press, 1985. Talbot, Steve. Roots of Oppression: The American Indian Question. New York: International Publishers, 1981. Taylor, Graham D. The New Deal and American Indian Tribalism: The Administration of the Indian Reorganization Act, 1934 – 45. Lincoln: University of Nebraska Press, 1980. Taylor, Theodore W. American Indian Policy. Mount Airy, Md.: Lomond Publications, 1983. Thornton, Russell. American Indian Holocaust and Survival: A Population History since 1492. Norman: University of Oklahoma Press, 1987. Trennert, Robert A., Jr. Alternative to Extinction: Federal Indian Policy and the Beginnings of the Reservation System, 1846 –51. Philadelphia: Temple University Press, 1975. Walker, Samuel. In Defense of American Liberties: A History of the ACLU. New York: Oxford University Press, 1990.

338

Bibliography

Washburn, Wilcomb E. The Assault on Indian Tribalism: The General Allotment Law (Dawes Act) of 1887. Philadelphia: J. B. Lippincott Co., 1975. ———. Red Man’s Land/ White Man’s Law: A Study of the Past and Present Status of the American Indian. New York: Charles Scribner’s Sons, 1971. ———, ed. History of Indian-White Relations. Vol. 4 of Handbook of North American Indians. Washington, D.C.: Smithsonian Institution, 1988. Watkins, T. H. Righteous Pilgrim: The Life and Times of Harold L. Ickes, 1874 –1952. New York: Henry Holt and Co., 1990. Wheeler, Burton K., with Paul F. Healy. Yankee from the West. Garden City, N.Y.: Doubleday and Co., 1962. Wilkins, David E. American Indian Sovereignty and the U.S. Supreme Court: The Masking of Justice. Austin: University of Texas Press, 1997. Wilkinson, Charles F. American Indians, Time, and the Law: Native Societies in a Modern Constitutional Democracy. New Haven: Yale University Press, 1987. Williams, Aubrey W., Jr. Navajo Political Process. Washington: Smithsonian Institution Press, 1970. Williams, Robert A., Jr. The American Indian in Western Legal Thought: The Discourses of Conquest. New York: Oxford University Press, 1990. Wise, Jennings C., and Vine Deloria Jr. The Red Man in the New World Drama. New York: Macmillan Co., 1971. Zitkala-Sa [Gertrude Bonnin]. American Indian Stories. Washington, D.C.: Hayworth Publishing House, 1921.

g ove r n me n t d o c u me n t s American Indian Policy Review Commission. Final Report. Washington, D.C.: U.S. Government Printing Office, 1977. U.S. House of Representatives. Report No. 1804. 73d Cong., 2d sess., 1934. ———. Report No. 1938. 71st Cong., 3d sess., 1931. U.S. House Committee on Indian Affairs. Creation of Indian Trust Estates: Hearings on H.R. 7204. 70th Cong., 1st sess., 1928. ———. Emancipated Citizenship for American Indians: Hearings. 71st Cong., 3d sess., 1931. ———. Hearings on H.R. 6979. 71st Cong., 1st sess., 1930. ———. Hearings on S. 2103. 76th Cong., 3d sess., 1940. ———. Indians of the United States: Hearings on the Condition of Various Tribes of Indians. 66th Cong., 1st sess., 1919. ———. Readjustment of Indian Affairs: Hearings. 73d Cong., 2d sess., 1934. ———. Reservation Courts of Indian Offenses: Hearings. 69th Cong., 1st sess., 1926. ———. Right of Indians to Nominate Agent: Supplemental Hearing. 62d Cong., 2d sess., 1913. ———. Right of Indians to Nominate Their Agent: Hearings. 62d Cong., 2d sess., 1912.

Bibliography

339

———. Wheeler-Howard Act—Exempt Certain Indians: Hearings. 76th Cong., 3d sess., 1940. U.S. Senate Committee on Indian Affairs. Conditions of Indians in the United States: Speech of Hon. William H. King . . . delivered in the Senate February 8, 1932. Senate Miscellaneous Document 214. 72d Cong., 2d sess., 1933. ———. Creation of Indian Trust Estates: Hearing. 72d Cong., 1st sess., 1932. ———. Granting Indians the Right to Select Agents and Superintendents: Hearing. 64th Cong., 1st sess., 1916. ———. Hearings on S. 1839. 72d Cong., 1st sess., 1932. ———. Hearings on S. 2561. 71st Cong., 2d sess., 1930. ———. Incorporation of the Klamath Indian Corporation: Hearings. 71st Cong., 2d sess., 1930. ———. Indian Corporation, Klamath: Hearing. 72d Cong., 1st sess., 1932. ———. Recall of Agents or Superintendents by Indian Tribes: Hearing. 64th Cong., 1st sess., 1916. ———. Revision and Codification of the Statutes Affecting American Indians: Hearings. 71st Cong., 3d sess., 1931. ———. Survey of Conditions of the Indians in the United States: Hearings, Part 28, Nevada. 73d Cong., 1st sess., 1934. ———. Survey of Conditions of the Indians in the United States: Part 10. 71st Cong., 2d sess., 1930. ———. Survey of Conditions of the Indians in the United States: Part 16, Flathead Reservation, Mont. 71st Cong., 2d sess., 1930. ———. To Grant to Indians Living under Federal Tutelage the Freedom to Organize for Purposes of Local Self-Government and Economic Enterprise: Hearings. 73d Cong., 2d sess., 1934.

articles or chapters Arnon, Nancy S., and W. W. Hill. “Santa Clara Pueblo.” In The Southwest, edited by Alfonso Ortiz, 296 – 307. Vol. 9 of Handbook of North American Indians. Washington, D.C.: Smithsonian Institution, 1979. Atwood, Stella M. “The Case for the Indian.” Survey 49, no. 1 (October 1922): 7–11, 57. Austin, Mary. “The Folly of the Officials.” Forum 71, no. 3 (March 1924): 281– 88. ———. “Why Americanize the Indian?” Forum 82, no. 3 (September 1929): 167–73. Berkey, Curtis. “Implementation of the Indian Reorganization Act.” American Indian Journal 2, no. 8 (August 1976): 2 –7. ———. “John Collier and the Indian Reorganization Act.” American Indian Journal 2, no. 7 (July 1976): 2 –7. ———. “The Legislative History of the Indian Reorganization Act.” American Indian Journal 2, no. 7 (July 1976): 15 –22.

340

Bibliography

Brady, David W. “Critical Elections, Congressional Parties, and Clusters of Policy Changes.” In Studies of Congress, edited by Glenn R. Parker, 521– 42. Washington, D.C.: Congressional Quarterly, Inc., 1985. Brugge, David M. “Henry Chee Dodge: From the Long Walk to Self-Determination.” In Indian Lives: Essays on Nineteeth- and Twentieth-Century Native American Leaders, edited by L. G. Moses and Raymond Wilson, 91–112. Albuquerque: University of New Mexico Press, 1985. Burke, Charles H. “Indians Making Progress in Learning the White Man’s Way.” School Life 9, no. 10 (June 1924): 239 – 42. Castillo, Edward D. “Twentieth-Century Secular Movements.” In California, edited by Robert F. Heizer, 713 –17. Vol. 8 of Handbook of North American Indians. Washington, D.C.: Smithsonian Institution, 1978. Clemmer, Richard O. “The Hopi Traditionalist Movement.” American Indian Culture and Research Journal 18, no. 3 (1994): 125 – 65. Collier, John. “Africa View—and Indian.” American Indian Life 18 (July 1931): 39 – 40. ———. “The Blue Lake Ceremonies: A Glimpse of Indian Religion.” American Indian Life 13 (October 1928): 6 –7. ———. “Indian Administration—Some Policies, Hopes, and Fears.” In Proceedings of the National Conference of Social Work, 667–76. Chicago: University of Chicago Press, 1933. ———. “The Organized Laity and the Social Expert: The Meaning of Public Community Centers.” In Proceedings of the National Conference of Social Work, 464 – 69. Chicago: University of Chicago Press, 1917. ———. “Policies and Problems in the United States.” In The North American Indian Today, edited by C. T. Loram and T. F. McIlwraith, 140 –51. Toronto: University of Toronto Press, 1943. ———. “The Red Atlantis.” Survey 49, no. 1 (October 1922): 15 –20, 63, 66. ———. “The United States Indian.” In Understanding Minority Groups, edited by Joseph P. Gittler, 33 –57. New York: John Wiley and Sons, 1956. ———. “United States Indian Administration as a Laboratory of Ethnic Relations.” Social Research 12, no. 3 (September 1945): 265 – 393. Corey, Herbert. “He Carries the White Man’s Burden.” Collier’s 71 (May 12, 1923): 13. Critchlow, Donald T. “Lewis Meriam, Expertise, and Indian Reform.” Historian 43, no. 4 (1981): 325 – 44. Crum, Steven J. “Henry Roe Cloud, a Winnebago Indian Reformer: His Quest for American Indian Higher Education.” Kansas History 11, no. 3 (autumn 1988): 171– 84. Dobyns, Henry F. “Therapeutic Experience of Responsible Democracy.” In The American Indian Today, edited by Stuart Levine and Nancy Oestreich Lurie, 268 –91. Baltimore: Penguin Books, 1968. Downes, Randolph C. “A Crusade for Indian Reform, 1922 –1934.” Mississippi Valley Historical Review 32, no. 3 (1945): 331–54.

Bibliography

341

Dozier, Edward P. “Factionalism at Santa Clara.” Ethnology 5 (1966): 172 – 85. Ducheneaux, Frank. “The Indian Reorganization Act and the Cheyenne River Sioux.” American Indian Journal 2, no. 8 (August 1976): 8 –14. Eastman, Elaine Goodale. “Our New-Old Indian Policy.” Christian Century 46 (November 27, 1929): 1471–73. Haas, Theodore H. “The Indian Reorganization Act in Historical Perspective.” In Indian Affairs and the Indian Reorganization Act: The Twenty Year Record, edited by William H. Kelly, 9 –25. Tucson: University of Arizona Press, 1954. Hageman, Sadye M. “The Red Man’s Experiment with Grade Schools.” Survey 50, no. 11 (September 1923): 583 – 601. Hauptman, Laurence M. “Designing Woman: Minnie Kellogg, Iroquois Leader.” In Indian Lives: Essays on Nineteenth- and Twentieth-Century Native American Leaders, edited by L. G. Moses and Raymond Wilson, 159 – 88. Albuquerque: University of New Mexico Press, 1985. ———. “The Indian Reorganization Act.” In The Aggressions of Civilization: Federal Indian Policy since the 1880s, edited by Sandra L. Cadwalader and Vine Deloria Jr., 132 – 48. Philadelphia: Temple University Press, 1984. Heizer, Robert F. “Treaties.” In California, edited by Robert F. Heizer, 701– 4. Vol. 8 of Handbook of North American Indians. Washington, D.C.: Smithsonian Institution, 1978. Hertzberg, Hazel W. “Indian Rights Movement, 1887–1973.” In History of IndianWhite Relations, edited by Wilcomb E. Washburn, 305 –23. Vol. 4 of Handbook of North American Indians. Washington, D.C.: Smithsonian Institution, 1988. Kelly, Lawrence C. “Anthropolgy and Anthropologists in the Indian New Deal.” Journal of the History of the Behavioral Sciences 16, no. 1 (1980): 6 –24. ———. “Charles Henry Burke, 1921–29.” In The Commissioners of Indian Affairs, 1824 –1977, edited by Robert M. Kvasnicka and Herman J. Viola, 251– 61. Lincoln: University of Nebraska Press, 1979. ———. “Charles James Rhoads, 1929 – 33.” In The Commissioners of Indian Affairs, 1824 –1977, edited by Robert M. Kvasnicka and Herman J. Viola, 263 –71. Lincoln: University of Nebraska Press, 1979. ———. “Choosing the New Deal Indian Commissioner: Ickes vs. Collier.” New Mexico Historical Review 44 (1974): 268 – 88. ———. “The Indian Reorganization Act: The Dream and the Reality.” Pacific Historical Review 66, no. 3 (August 1975): 291– 312. ———. “John Collier and the Indian New Deal: An Assessment.” In Indian-White Relationships: A Persistent Paradox, edited by Jane F. Smith and Robert M. Kvasnicka, 227– 41. Washington, D.C.: Howard University Press, 1976. ———. “United States Indian Policies, 1900 –1980.” In History of Indian-White Relations, edited by Wilcomb E. Washburn, 66 – 80. Vol. 4 of Handbook of North American Indians. Washington, D.C.: Smithsonian Institution, 1988. Kennard, Edward A. “Applied Anthropology in Government: United States.” Anthropology Today: An Encyclopedic Inventory, edited by A. L. Kroeber, 832 – 40. Chicago: University of Chicago Press, 1953.

342

Bibliography

Kickingbird, Lynn. “Attitudes Toward the Indian Reorganization Act.” American Indian Journal 2, no. 7 (July 1976): 8 –14. Kunitz, Stephen J. “The Social Philosophy of John Collier.” Ethnohistory 18, no. 3 (summer 1971): 213 –29. Lantis, Margaret. “Anthropologists in the Federal Government.” Human Organization 20, no. 1 (1961): 36 – 41. Macgregor, Gordon. “Anthropology in Government: United States.” In Yearbook of Anthropology: 1955, edited by William L. Thomas Jr., 421– 35. New York: Wenner-Gren Foundation for Anthropological Research, 1955. Marshall, Robert. “The Present Government Indian Policy in the United States.” In Proceedings of the National Conference of Social Work, 575 – 81. Chicago: University of Chicago Press, 1935. Martin, Jill E. “‘A Year and a Spring of My Existence’: Felix S. Cohen and the Handbook of Federal Indian Law.” Western Legal History 8 no. 1 (1995): 35 – 60. Mekeel, Scudder. “An Appraisal of the Indian Reorganization Act.” American Anthropologist 46, no. 2 (1944): 209 –17. For an interchange between Mekeel and John Collier following this article, see “Brief Communications,” American Anthropologist 46, no. 3 (1944): 422 –26, and American Anthropologist 46, no. 4 (1944): 571. Oskison, John M. “In Governing the Indian, Use the Indian!” Case and Comment 23 (February 1917): 722 –26. Philp, Kenneth R. “Herbert Hoover’s New Era: A False Dawn for the American Indian, 1929 –1932.” Rocky Mountain Social Science Journal 9 (April 1972): 53 – 60. ———. “John Collier and the American Indian, 1920 –1945.” In Essays on Radicalism in Contemporary America, edited by Jerome L. Rodnitzky et al., 63 – 80. Austin: University of Texas Press, 1972. ———. “John Collier and the Crusade to Protect Indian Religious Freedom, 1920 –1926.” Journal of Ethnic Studies 1 (spring 1973): 122 – 38. Ross, Mary. “The New Indian Administration.” Survey 64 (June 15, 1930): 268 – 69. Rusco, Elmer R. “Civil Liberties Guarantees under Tribal Law: A Survey of Civil Rights Provisions in Tribal Constitutions.” American Indian Law Review 14 (1989): 269 –99. Ryan, W. Carson, Jr. “Cooperation in Indian Education.” In Proceedings of the National Conference of Social Work, 617–25. Chicago: University of Chicago Press, 1931. Seymour, Flora Warren. “Our Indian Problem/The Delusion of the Sentimentalists.” Forum 71, no. 3 (March 1924): 273 – 80. Stein, Gary. “Tribal Self-Government and the Indian Reorganization Act of 1934.” Michigan Law Review 70, no. 5 (April 1972): 955 – 86. Stewart, Omer C. “Litigation and Its Effects.” In California, edited by Robert F. Heizer, 705 –12. Vol. 8 of Handbook of North American Indians. Washington, D.C.: Smithsonian Institution, 1978. ———. “Three Gods for Joe.” Tomorrow 4, no. 3 (1956): 71–76.

Bibliography

343

Szasz, Margaret G. “Indian Reform in a Decade of Prosperity.” Montana: the Magazine of Western History 20, no. 1 (January 1970): 16 –27. Taylor, Graham D. “Anthropologists, Reformers, and the Indian New Deal, 1933 – 1945.” Prologue: The Journal of the National Archives 7 (1975): 151– 62. ———. “The Tribal Alternative to Bureaucracy: The Indian’s New Deal, 1933 – 1945.” Journal of the West 13, no. 1 (January 1974): 128 – 42. Tooker, Elisabeth. “Ely S. Parker.” In American Indian Intellectuals, edited by Margot Liberty, 15 – 30. St. Paul: West Publishing Co., 1978. Trani, Eugene P. “Hubert Work and the Department of the Interior, 1923 –28.” Pacific Northwest Quarterly 61, no. 1 (January 1970): 31– 40. Unrau, William E. “Charles Curtis: The Politics of Allotment.” In Indian Lives: Essays on Nineteenth- and Twentieth-Century Native American Leaders, edited by L. G. Moses and Raymond Wilson, 113 – 38. Albuquerque: University of New Mexico Press, 1985. Wilbur, Ray Lyman. “A New Day for the Indian.” New York Herald Tribune Magazine (March 24, 1931): 1–2, 12. ———, as told to W. A. DuPuy. “Uncle Sam Has a New Indian Policy.” Saturday Evening Post 201 (June 8, 1929): 136 – 37. Work, Hubert. “Our American Indians.” Saturday Evening Post 196 (May 31, 1924): 27, 92, 94, 98. Zimmerman, William, Jr. “The Role of the Bureau of Indian Affairs since 1933.” Annals of the American Academy of Political and Social Science 311 (May 1957): 31– 40.

d i s s e r tat i o n s Carlson, Leonard A. “The Dawes Act and the Decline of Indian Farming.” Ph.D. diss., Stanford University, 1977. Clemmer, Richard O. “Directed Resistance to Acculturation: A Comparative Study of the Effects of Non-Indian Jurisdiction on Hopi and Western Shoshone Communities.” Ph.D. diss., University of Illinois, Urbana-Champaign, 1972. Freeman, J. Leiper, Jr. “The New Deal for Indians: A Study in Bureau-Committee Relations in American Government.” Ph.D. diss., Princeton University, 1952. Gilcreast, E. A. “Richard Henry Pratt and American Indian Policy, 1877–1906: A Study of the Assimilation Movement.” Ph.D. diss., Yale University, 1967. Holm, Thomas M. “Indians and Progressives: From Vanishing Policy to the Indian New Deal.” Ph.D. diss., University of Oklahoma, 1978.

Index

Abeita, Pablo, 24, 27 aboriginal rights, 4 a c l u. See American Civil Liberties Union Acoma Pueblo, 215 administrative reform: basic viewpoint of, 82; comparison to other ideologies of Indian policy, 114 –15; Meriam Report and, 82, 83 – 86, 92 – 93, 285; Rhoads-Scattergood implementation, 95 –103, 112; WilburRhoads letters and, 107 Africa View (Huxley), 160 – 61 agreements, 6 agricultural extension agents, 98 Ahern, George P., 174, 184 a ida . See American Indian Defense Association Alaska natives, 260, 267 allotment policy: Cohen-Siegel proposals on, 197–98; Collier administration directive on, 183; Collier and, 47, 55, 56, 133, 158 –59, 175, 255 –56; consequences of, 46 – 47, 55 –56; Cosmos Club conference on, 185; current status of, 301; elimination of Indian governments and, 51; failure of, 92, 291; fee patents and, 47, 54; Five Civilized Tribes and, 40; incorporation proposals and, 133; Indian citizenship and, 51–53; Indian consent and, 311n. 17; Indian Reorganization Act and, 291, 298, 300; loss of Indian lands under, 55 – 56, 136; Meriam Report on, 75, 78, 83, 285; motivations and rationales

for, 47– 49; opposition to, 48, 49; overview of, 47; patchwork application of, 54; Rhoads-Scattergood administration and, 100 –101; Shepard proposal on, 195, 196; state jurisdiction over Indians and, 53; Stephens bills and, 117; Supreme Court on, 5, 53, 301, 312n. 37; Elmer Thomas on, 234 – 35; tribal council bill and, 167; tribal sovereignty and, 53 –54; trust lands and, 47, 54; Wheeler on, 235; white views of Native Americans and, 49 –51; Wilbur-Rhoads letters on, 105 – 6, 107– 8, 158 –59 All-Pueblo Council, 23 –24, 25, 26, 27, 28, 43, 247 American Civil Liberties Union (a c l u), 64 – 65, 132, 163 – 65, 172, 184 – 87, 201–2, 209, 251 American Indian Association, 66 American Indian Defense Association (a ida), 63, 95, 125, 187, 209, 251; in California, 157; Collier and, 67; Cosmos Club conference, 184; criticism of Rhoads-Scattergood administration, 108; Flathead hydroelectric dam dispute and, 21; Harold Ickes and, 179; Nathan Margold and, 164; Pueblo Indians and, 163 American Indian Institute, 73 American Indian Journal, xi American Indian Life (periodical), 142 – 43, 160 – 61, 166 American Indian Policy Review Commission, 267, 300

345

346

Index

American Red Cross, 70 anthropology/anthropologists, 50, 188 –90 Apache Tribe, 37, 253 appropriation laws, 6 Arapahoe Indians, 215 Arnon, Nancy S., 29 Arrow Maker, The (Austin), 145 Ashurst, Henry F., 231, 232, 247, 257, 265, 272, 273, 287 assimilation: application of non-Indian laws to Indians and, 80 – 82; Collier and, 138, 147–51, 175, 294; Indian policy ideologies and, 114 –15; indirect rule concept and, 162 – 63; Thomas Jefferson on, 88; Meriam Report on, 75 –77, 80, 83, 85; termination ideology and, 86 –91. See also forced assimilation Atkins, John D. C., 8 attorneys, 67, 174; claims litigation and, 67; secretarial authority and, 264 – 66, 281; tribal council bill on, 174 Atwood, Stella M., 23, 65, 174 Austin, Mary, 104, 145 Ayers, Ray E., 279 Bailey, Garrick, 41, 44, 59 Bailey, Roberta Glenn, 41, 44, 59 Baldwin, Roger N., 64 – 65, 132, 163, 164, 165 – 66, 174, 179, 184, 185 bands, 268 Bankhead, William, 242 Barnett, Jackson, 68, 156 Barona Ranch, 101 Basket Woman (Austin), 145 Beaulieu, Gustav, 118 –19 Beiter, Alfred F., 277 Benedict, Ruth, 189 Benn, Roger, 215 Bentley, Martin J., 118 Berkey, Curtis, xi Berle, Adolph A., Jr., 163

b i a . See Bureau of Indian Affairs Bill of Rights, 226 Bird, John P., 247 Bishop, Thomas G., 125 Black Elk, 44 Blackfeet Tribal Council, 120 Blackfeet Tribe, 125, 253 Black Hills, 12 Bland, Dr. T. A., 48 Blue Lake, 300 boarding schools, 45, 84, 88 Board of Indian Commissioners, 44 – 45, 70 –71 Boas, Franz, 50, 189 Bonnin, Gertrude, 65 – 66, 132, 169, 185, 209 Bonnin, Raymond T., 65, 66, 185, 186, 209 Boone, T. B., 170 Bowler, Alida, 185 Brady, David W., 325 –26n. 34 bridges, 69 Bronson, Ruth Muskrat, 64 Brookings Institute. See Institute for Government Research Broomfield, Leonard, 193 Brosius, S. M., 184 Brown, Joseph W., 253 Brown, Margaret, 174 Brown, Ray A., 79 – 81 Brown v. Board of Education, 164 Bruner, Joseph, 277 Bureau of Indian Affairs (b i a): administrative record keeping in, 11–12; administrative reform and, 84, 95 – 103, 112; allotment policy and, 55; appropriations and, 84, 95 –97; bureaucratic characteristics, 91–92; Collier and, 68, 70, 71, 96, 157–58; control of Indian travel to Washington, 67; expansion of programs, 97– 98; Flathead tribal council, 20 –22, 33; forced assimilation policies and, 8 –11, 12, 32, 33; Indian constitutions

Index and, 102, 103; Indian governments and, 15 – 32, 33 – 34, 115; Indian lands, failure to protect, 126; Indian marriages and, 7, 14, 244; Indian preference and, 225; Indian Reorganization Act and, xi, 286; Indian selfgovernment and, 12 –15, 34; indirect administration and, 162; investigations of, 70 –71; irrigation projects and, 69; Meriam Report recommendations, 84; mishandling of Indian money, 69; Navajo Nation and, 16 – 20; number of employees, 98; organizational changes, 98 –99; personnel upgrading, 84, 98; Pueblo Indian government and, 24 –28; Red Cross report on health conditions, 70; reimbursable debt, cancellation of, 100; reimbursement charges and, 69; scandals and policies criticized for, 68 –70; survey of business councils (1929), 36 – 40; termination ideology and, 88, 90, 91–92; tribal council bill and, 167– 68. See also Burke administration; Collier administration; Rhoads-Scattergood administration Bureau of the Budget, 96, 112, 113, 240 – 41 Burke, Charles H., 23, 30, 120. See also Burke administration Burke Act of 1906, 10 Burke administration, 10 –15; creation of Indian governments and, 20, 21– 22; criticism of, 68 –70; discouragement of Indian self-government, 12 – 15; forced assimilation policies and, 10 –11, 12; incorporation proposals and, 128; “law and order” bill (1926), 153 –54; Pueblo Indians and, 23, 24, 25, 26 –27; recognition of Indian governments and, 15, 16, 18; Red Cross report and, 70; survey of business councils (1929), 36 Bursum, Holm O., 23

347

Bursum bill, 23, 24, 63, 64, 178 business committees/councils, 16; Johnson bill and, 121; Navajo, 18; Stephens bills and, 117; survey of (1929), 36 – 40; Walker bill and, 128; Warm Springs Reservation and, 101– 3 Byrns, Joseph, 242 caciques, 29, 37 California: Swing-Johnson bill and, 157 Canadian Indians, 159 Capitan Grande Indian Reservation, 101 Carl, John W., 119 Carlisle Indian School, 45, 87 Carlson, Leonard, 51 Carter, Charles, 65 Carter, Vincent, 275, 277, 278 Catholic Daily Tribune, 252 Caville, Dupuis, 20 Chapman, Oscar L., 237, 238 chapters, 19 –20 charters: Cohen-Siegel proposals on, 199; Indian Reorganization Act and, 261– 62, 263, 280; i r a Title I draft provisions, 220 –24 Cherokee Indians, 42. See also Five Civilized Tribes Chickasaw Indians. See Five Civilized Tribes chiefs, 37 Chinn, Henry, 103 Chinquilla, Princess, 209 Chippewa Indians, 38; response to the i r a, 214, 216; Stephens bills and, 118 –20 Choctaw Indians, 101. See also Five Civilized Tribes Christian missionaries, 10, 43 – 45 Christian Science Monitor, 161 Christianson, Theodore, 150, 258, 259, 276 churches: opposition to the Indian

348

Index

Reorganization Act, 251–52. See also missionaries citizenship, national, 8; allotment policy and, 51–53; Richard Pratt on, 89 citizenship, tribal, 52 civilized/savage ideology: in federal educational policies, 45; in the Meriam Report, 82; Richard Pratt and, 87– 88; racist views and, 49 civil rights, 52 –53; i r a draft proposals on, 202, 226 claims legislation, 270 claims litigation, 12 –13, 67, 270 Cloud, Henry Roe. See Roe Cloud, Henry Cochiti Pueblo, 215 Cochrane, Walter C., 26 Coe, Charles E., 20, 21–22 Cohen, Felix S., 2, 5, 8, 40, 103, 189 –90, 192 –94, 203, 207, 209, 211–12, 245, 288, 289, 295, 296 Cohen, Lucy, 193, 326n. 36 Cohen-Siegel proposals: content of, 197–200; Robert Marshall’s critique of, 203 – 4 colleges, 97 Collett, Frederick G., 252 Collier, John, 6, 15, 103; advocacy of Indian rights, 62 – 63; allotment and, 47, 55, 56, 133, 158 –59, 175, 255 –56; American Civil Liberties Union and, 163 – 65; American Indian Defense Association and, 63; anthropologists and, 188 – 89; appointment as commissioner of Indian Affairs, 177, 178 –79; assimilation and, 138, 147– 51, 175, 294; Mary Austin and, 145; Roger Baldwin and, 64 – 65, 163, 164; biographical studies of, xi; Board of Indian Commissioners and, 45; Bureau of Indian Affairs and, 68, 70, 71, 96, 157–58; Cosmos Club confer-

ence and, 184, 185; Flathead hydroelectric dam dispute and, 21; forced assimilation and, 161, 175, 293; fundamental views of, 139 – 42; incorporation and, 127, 132 – 33, 134 – 35, 159 – 60, 176; Indian governments and, 152 –53, 176, 205, 282; Indian Oil Act, 69; Indian policy and, 62 – 63, 67– 68, 137– 38, 145 –53, 175, 283 – 84; Indian self-government and, 155, 276, 294 –95; indirect administration and, 160 – 63, 176, 299; interpretations of, 138; Judson King and, 64; “law and order” bill (1926) and, 153 –55; legislative proposals, 163 – 65, 176; mystical experiences and, 139; Native American societies, views of, 50 –51, 142 – 45, 321n. 11; Navajo Tribal Council and, 320 –21n. 2; personality of, 138, 181; plenary power doctrine and, 299; political ideology and, xiii; Pueblo Indians and, 23, 24, 25, 27, 142 – 43; reform and, 139 – 40, 141, 142; Rhoads-Scattergood administration and, 103 – 4, 105 –10; Senate Committee on Indian Affairs and, 111; social philosophy of, 140 – 42; SwingJohnson bill and, 157; Taos Pueblo and, 63, 142 – 43; termination ideology and, 162, 176, 293 –94; tribal alternative ideology and, 136, 155 – 65; tribal council bill, 165 – 68, 172 – 73, 174, 176; trust lands and, 293; Wheeler and, 235 – 36, 292 –95; Wilbur and, 104; Wilbur-Rhoads letters to Congress, 105 – 8, 112, 158 – 59, 285 – 86; writings of, 137. See also Collier administration —Indian Reorganization Act and: areas of disagreement with Wheeler, 292 –95; claims legislation and, 270; Collier’s contributions to, 288 –90;

Index consultations with Indians and, 210 – 11; definition of Indian and, 269; drafting process, 192, 193 –94, 204 – 5, 206, 207– 8; exclusion issues, 258; House and Senate committees hearings, 231– 33, 235 – 36, 240 – 41, 242 – 45, 249 –50, 251, 253, 254; Indian congresses, 246, 247– 48, 249, 253 – 54, 289 –90; Indian elections, 259; on Indian self-government, 276; “Indian Self-government” circular, 212, 213, 216 –17; presidential approval and, 236, 237, 238, 239; responses to Wheeler’s objections, 242, 243, 244; on secretarial authority, 264 – 66; submission to Congress, 207– 8; views of, x, 146; Wheeler-Zimmerman revisions, 250 –52; willingness to compromise, 241 Collier, Lucy, 104 Collier administration: advice from anthropologists, 188 –90; budgetary issues, 182 – 83; Collier’s personality and, 181; Collier’s principal advisers in, 182; Cosmos Club conference on reform, 184 – 87; early directives issued, 183 – 84; early months of, 179 – 88; Indian appointments and, 181; Indian input and, 190; legislative proposals, 187– 88, 190 –91; partisan Congressional politics and, 191–92; religious opposition to, 251– 52; staffing issues, 180 – 82. See also Collier, John; Indian Reorganization Act —Indian Reorganization Act and: consultation with Indians, 210 –17; Cosmos Club conference supporting, 209 –10; drafting process, 192 – 207, 217–19; submission to Congress, 207– 8 Collins, Sam, 234 colonial rule, 6

349

Colville Indians, 214 Comanche Tribe, 122 Committee of One Hundred, 64, 70 communitarians, 141 Congress (U.S.): b i a appropriations and, 96; hostility toward Indian governments, 39 – 40; incorporation bills and, 128 – 32, 133 – 34; Indian citizenship and, 8; Indian legislation under Rhoads-Scattergood, 110 –13; i r a floor debates, 270 –78; knowledge of the i r a and, 282, 290; legislative proposals adopting tribal alternative ideology, 116 –23, 125; Legislative Reorganization Act and, 112; partisan voting in, 191–92, 325 – 26n. 34; passage of the i r a , 278 –79; plenary power doctrine, 5, 242, 299. See also House Committee on Indian Affairs; Senate Committee on Indian Affairs congresses, Indian, 245 – 49, 253 –54, 289 –90 Congressional Record, 247, 271, 275, 277, 278, 284 Connolly, Vera, 191 consensus: in Indian governments, 57– 58 consent statutes, 6 constitutions: of Indian governments, 39 – 40; Indian Reorganization Act and, 261, 262, 280; i r a Title I draft provisions, 222; Navajo, 19; number of tribes with, 301; Rhoads-Scattergood administration and, 102, 103; of Santa Clara Pueblo, 32; tribal council bill and, 168 Constitution (U.S.): on Native Americans, 2; termination ideology and, 87, 90 Coolidge, Calvin, 64 Coolidge, Samuel, 59 cooperatives, 160

350

Index

Cornelius, Laura (Minnie). See Kellogg, Laura Cornelius corporations, tribal. See incorporation Cosmos Club conferences, 184 – 87, 209 –10, 290 –91 Council Fire, 48 Council of Progressive Christian Indians, 25 Court of Indian Affairs: proposal for, 198 –99, 229 – 30; Wheeler’s objections to, 242 – 43 courts: Cohen-Siegel proposals on, 198 –99; contributions to Indian law, 3 – 6, 7, 8; Court of Indian Affairs proposal, 198 –99, 229 – 30; Document A proposals on, 201; Frear bill and, 154 –55; Title IV draft provisions, 229 – 30 Courts of Indian Offenses, 14 –15, 80, 81, 82, 153 –54 Cramton, Louis, 96, 110 –12 Crawford, Ida, 128, 129, 132, 185 Crawford, Wade, 128, 129, 132, 181, 185, 186 Crawford incorporation bill, 129 – 31 Creeks. See Five Civilized Tribes criminal law, 7; Frear bill and, 154 –55; Meriam Report on, 79 – 80 Critchlow, Donald, 82, 98 cultural pluralism, 322n. 19 cultural relativism, 50 –51 Current History (magazine), 68 Curtis, Charles, 218, 269, 316n. 1 Curtis Act, 40 Daiker, Fred H., 184 Dale, Edward Everett, 72, 74, 78 –79, 177 dam projects, 20 –22 dances: Collier’s descriptions of, 142 – 43; Pueblo Indians and, 24 Dann, Joe, 253 Dawes, Henry L., 40, 47– 49, 51

Dawes Act, 8, 9, 53, 62, 312n. 37. See also allotment policy death rates, 98 Debo, Angie, 51 Declaration of Independence, 87, 90 Deloria, Vine, Jr., xi, 39, 117, 223, 225, 230, 290, 302 democratic decision-making: incorporation and, 135; tribal alternative ideology and, 116 Democratic Party, 111; Congressional partisan politics and, 191–92; Congressional vote on the i r a , 278 –79 de Priest, Oscar, 234 devolution: Indian Reorganization Act on, 244; i r a Title I draft provisions, 224 –26 Dickstein, Samuel, 278 Dill, Clarence C., 272 Dine people. See Navajo Nation Dippie, Brian, 47, 49, 67 diseases, 41, 97–98 divorce, 7, 245 Dobyns, Henry F., x Document A (i r a), 200 –201 Document B (i r a), 201–2 Dodge, Chee, 18 Dodge, Mabel, 67 Dodge, Thomas P., 247 Downes, Randolph C., 62 Dozier, Edward P., 29 DuPuy, W. A., 315 –16n. 1 Early, Stephen, 239, 242 Eastern Association on Indian Affairs, 63 – 64 Eastman, Charles, 59 Eastman, Elaine, 161 economic development, 257 education: federal policies, 45 – 46; Indian Reorganization Act on, 228, 257; Rhoads-Scattergood administration and, 97; termination ideology and, 88

Index ejidos, 150, 159 Elkus, Charles DeYoung, 163 Elk v. Wilkins, 52 Emerson, Haven, 108, 174 environmental movement, 322n. 19 epidemic diseases. See diseases Eskimos, 267 espionage statutes, 165, 186 – 87 Estes, J. F., 119 executive-order reservations, 69 factionalism: in Indian societies, 46, 56, 60; Santa Clara Pueblo and, 28 – 32, 33 – 34 Fahy, Charles, 193, 209, 242 Fall, Albert B., 10, 12, 23 Farmer-Labor Party, 278 farmers/ranchers, Indian, 56, 98 Farrow, E. A., 215 federal government: claims litigation against, 12 –13, 67, 270; Indian policy prior to the 1920s, 1–2; legislative change and, 110. See also Indian policy federal guardianship, 4 –5; disagreement between Collier and Wheeler on, 293; Howard statement on, 274, 275; i r a draft proposals and, 202, 226; Supreme Court on, 7. See also trust lands Federalist #10, 60 fee patents, 47, 54, 266 Final Promise, A (Hoxie), xii, 9 Finney, E. C., 125, 128 Five Civilized Tribes, 39 – 40, 47, 162 Flathead Indians: hydroelectric dam dispute, 20 –22; reimbursement charges and, 69 Flathead Tribal Council, 125; b i a attempt to replace, 20 –22, 33 forced assimilation: b i a and, 8 –11, 12, 32, 33; Christian missionaries and, 43 – 45; Collier and, 161, 175, 293; comparison to other ideologies of

351

Indian policy, 114 –15; educational policies under, 45 – 46; fragmentation of Indian societies and, 59; ideology of, 8 –10; Indian governments and, 32, 60 – 61; Indian Reorganization Act and, 295 –97, 298; Meriam Report on, 76; reevaluation of, 62; Society of American Indians and, 59 – 60; tribal council bill and, 166; Wheeler and, 245, 293; Wilbur and, 104 –5 Ford, James, 160 foreign policy: Indian governments and, 3 forest lands: incorporation proposals and, 126, 127–28; i r a Title III draft provisions, 229. See also tribal resources Fort Belknap Reservation, 103, 193 Fort Berthold Agency, 38 Fort Totten Reservation, 38 Forum (magazine), 68, 104 Fourteenth Amendment, 1, 52, 87 Frankfurter, Felix, 164, 193, 326n. 36 Frazier, Lynn, 243, 265 Frazier bills, 168 – 69. See also tribal council bill Frear, James A., 71, 154, 276, 284, 288 Frear bill, 154 –55 Fredenberg, Ralph, 133 – 34 Freeman, J. Leiper, Jr., xi–xii, 233, 250, 295 “friends of the Indians,” xiv; allotment policy and, 48; Cosmos Club conferences, 184 – 87, 209 –10, 290 –91; i r a and, 290 –92 Frisbie, W. A., 217 From Every Zenith (Collier), 139 Gans, Howard S., 163 General Allotment Act, 301. See also allotment policy General Federation of Women’s Clubs, 23, 65, 67, 187, 251

352

Index

Gessner, Robert, 184, 186, 209, 291 Gila River Reservation, 100 Gloeter, John, 253 Gordon, Philip, 59 Great Depression, 99 –100 “Great Sioux Nation,” 13, 14 Greeley, Helen H., 163 Greenway, Isabella, 149, 150, 277 Gronna, Asle J., 122 Grorud, Albert A., 21, 185, 209, 235 guardianship. See federal guardianship Gutheim, Fritz, 185, 186 Haas, Theodore H., x Hagerman, Herbert J., 18, 19, 25, 26, 27, 28, 33, 156 Hallam, Paul L., 180 Hamilton, Robert J., 120, 125 Handbook of Federal Indian Law (Cohen), 2, 5, 8, 40, 295, 326n. 36 Hanna, Richard H., 23, 163 Hargrett, Lester, 39 Harper, Allan, 182, 187, 201 Harsch, Joseph C., 161 Haskell Institute, 246 Hastings, William W., 276 –77 Hatch, Elvin, 50 Hauptman, Laurence, 124, 277, 319n. 30 Havasupai Tribe, 37 Heff case, 53 Hertzberg, Hazel, 59, 60, 66, 177, 178 higher education, 97 Hill, W. W., 29 Hirst, Albert, 165 Holst, John H., 184 Hoover, Herbert, 93, 94, 95, 100, 110 – 12 Hopi Indians, 37, 310 –11n. 10 hospitals, 97–98 House Committee on Indian Affairs, 187; Collier’s views on assimilation before, 148 –51; Collier’s views on Indian governments before, 152;

Indian Reorganization Act and, 231, 234, 249, 275 –76, 286 – 87; “law and order” bill (1926) and, 153 –54; Wilbur-Rhoads letters and, 105 House of Representatives (U.S.): Indian legislation under RhoadsScattergood, 111; Indian Reorganization Act and, 273 –78, 278 –79, 284 House Rules Committee, 242 Howard, Edgar, 150, 187, 207, 238, 240, 241, 242, 273 –75, 278, 284, 286 Hoxie, Frederick E., xii, 9, 45, 47, 48, 49, 50, 52, 53, 54, 61 Hunter, John G., 19 Huxley, Julian, 160 – 61 hydroelectric dams, 20 –22 Ickes, Anna Wilmarth, 59, 178, 209, 320n. 1 Ickes, Harold, 177, 178 –79, 182, 183, 188, 191, 192, 237, 238, 239, 242, 252, 291 ideology: political, xiii; underlying Indian policy, 114 –16. See also administrative reform; civilized/ savage ideology; forced assimilation; termination ideology; tribal alternative ideology Incas, 143 income: per capita, 74 incorporation: b i a and, 134; Collier and, 127, 132 – 33, 134 – 35, 159 – 60, 176; democratic decision-making and, 135; impediments to, 135 – 36; Indian Reorganization Act and, 261, 262, 263; Laura Cornelius Kellogg and, 123 –24, 127; Klamath incorporation bills, 127– 33, 134 – 36; Francis Leupp on, 126 –27; Menominee Tribe and, 126, 133 – 34, 136; Meriam Report on, 78 –79, 86, 127; tribal alternative ideology and, 123 –24, 126 – 36, 159 – 60; Wilbur and, 105; Wilbur-Rhoads letters on, 106

Index Indian: i r a definition of, 267, 268 – 69, 279 – 80 Indian agents: Christian missionaries and, 43; intimidation of Indians and, 122; Johnson bill and, 120 –21; Stephens bill and, 118 –20 Indian and His Problem, The (Leupp), 82, 126 –27 Indian Board of Co-operation, 94 –95 Indian Civil Rights Act (1968), 226 Indian Claims Commission, 4, 106 –7 Indian congresses, 245 – 49, 253 –54, 289 –90 Indian farmers/ranchers, 56, 98 Indian governments: allotment policy and, 51; b i a and, 15 – 32, 33 – 34, 115; business councils, 16; Collier and, 152 –53, 176, 205, 282; consensus in, 57–58; constitutions and, 39 – 40; effects of epidemic diseases on, 41; effects of reservation life and policies on, 41– 44, 45 – 46; forced assimilation and, 32, 60 – 61; Indian policy ideologies and, 115; Meriam Report on, 77–79, 85 – 86; removal policies and, 42; Rhoads-Scattergood administration and, 101– 3, 172; status of (1920 –1934), 35 – 36, 56 –58, 60 – 61; survey of business councils (1929), 36 – 40; temporary councils, 12, 13 – 14; traditional governmental structures, 36 – 38; tribal alternative ideology and, 116 –23, 125; tribal council bill and, 168 – 69; vacuum theory of, 152 –53, 205, 282; Wheeler on, 243 – 44; Wilbur-Rhoads letters and, 107. See also tribal councils —Indian Reorganization Act and, 261– 63, 280; appropriations for, 263; Cohen-Siegel proposals on, 198 –99; defined areas of authority, 262 – 63, 281; impact on, 300; operating assumptions of, 205 –7; provisions and arguments supporting, 295 –97;

353

restrictions on authority, 264 – 66, 281; Title I draft provisions, 220 –24 Indian lands. See forest lands; tribal lands; trust lands Indian law: agreements and, 6; allotment policy and, 53 –54; appropriation laws and, 6; consent statutes, 6; creation of, 2 – 3; criminal authority and, 7; Document A proposals on, 200; federal protection of Native Americans, 4 –5; on foreign policy, 3; on Indian governing authorities, 6 – 7; Indian policy ideologies and, 115; Indian Reorganization Act and, 300; judiciary contributions to, 3 – 6, 7, 8; on land occupancy rights, 3 – 4; marriage and, 7, 14, 244, 245; plenary power doctrine and, 5; on property rights, 4; on reservations, 4; Rhoads-Scattergood proposed study of, 112 –13; self-government and, 5, 33; statutory contributions to, 6 – 8; on water rights, 4; Wheeler’s views of, 244 Indian marriages, 7, 14, 244, 245 Indian nations/societies: attempts to sue the federal government, 12 –13; attorneys representing, 67; Christian missionaries and, 43 – 45; Collier’s views of, 50 –51, 142 – 45, 321n. 11; culture change and, 59; effects of epidemic diseases on, 41; effects of non-Indian society on, 57; effects of reservation life and policies on, 41– 44, 45 – 46; federal educational policies and, 45 – 46; forced assimilation and, 43 – 46, 59; Indian law and, 3 – 8; land occupancy rights and, 3 – 4; national government policy prior to the 1920s, 1–2; number of tribes with constitutions, 301; progressive/ traditionalist factionalism, 46, 56, 60; religious beliefs, 44; removal policies and, 42; transmission of Native

354

Index

languages and culture, 46; white views of, 49 –51. See also Native Americans —Indian Reorganization Act and: application and exclusions, 258 – 61; congresses, 245 – 49, 253 –54, 289 –90; definitions of tribe and Indian, 267– 69, 279 – 80; elections to approve, 258 – 60, 280; exclusion issues and, 258, 260 – 61, 280; provisions exempt from tribal veto, 298 –99 Indian New Deal. See tribal alternative Indian Oil Act, 69 Indian policy; administrative reform ideology and, 82 – 86, 92 –93; areas of disagreement between Collier and Wheeler, 292 –95; Collier and, 62 – 63, 67– 68, 137– 38, 145 –53, 175, 283 – 84; criticism of, 62 – 63; Charles Curtis and, 316n. 1; formulation and structure of Indian law, 3 – 8; Hoover administration and, 110 –12; ideologies underlying, 114 –16; Indian groups and, 65; Indian lobbyists and advocates, 66 – 67; investigations into, 71; major policy makers in, 282 – 84; Meriam Report and, 71– 82; muckraking journalism and, 68; nonIndian advocates, 63 – 65, 67; political ideology and, xiii; principal political actors in, xiii–xiv; prior to the 1920s, 1–2; recent trends in, 302; termination viewpoint, 86 –92; tribal alternative ideology and, 115 –16; tribal council bill, 165 –74; Wheeler’s views of, 244 – 45, 292 –95; white views of Native Americans and, 49 – 51. See also allotment policy; assimilation; forced assimilation; Indian Reorganization Act Indian preference, 225, 252, 257, 267 Indian Reorganization Act (i r a): allotment and, 291, 298, 300; areas of disagreement between Collier and

Wheeler, 292 –95; assumptions about Indian governance, 205 –7; barriers to consideration of, 231– 36; b i a implementation of, xi; business councils survey and, 36; charters and, 261– 62, 263, 280; Cohen-Siegel proposals, 197–200, 203 – 4; Collier’s contributions to, 288 –90 (see also Collier, John); complexity of, 208; Congressional floor debates and passage, 270 –79; constitutions and, 261, 262, 263, 280; consultations with Indians and, 210 –17; Cosmos Club conference supporting, 209 –10, 290 – 91; devolution and, 244; Document A proposals, 200 –201; Document B proposals, 201–2; draft form introduced to Congress, 220 – 31; drafting process, 192 –207; on economic development, 257; on education, 257; exclusion issues and, 258, 260 – 61, 280; forced assimilation and, 295 –97, 298; historical studies of, xi–xii; House committee hearings on, 231, 234, 249; Edgar Howard’s statement to Congress supporting, 273 –75; impact of, 300 – 301; importance of, ix; incorporation and, 261, 262, 263; Indian congresses, 245 – 49, 253 –54, 289 –90; Indian elections and, 248 – 49, 258 – 60, 280; Indian-initiated amendments, 247– 49; Indian knowledge about, 284 – 85; Indian preference and, 225, 252, 257, 267; Indian response to, 212 –17, 252 –53, 289; “Indian Self-government” circular and, 212 –17; indirect administration and, 299; legislative history of, 285 – 88; major policy makers and, 282 – 84; Menominee Tribe and, 133 – 34; presidential approval and, 236 – 42, 254; press coverage of, 270 –71, 279; provisions exempt from tribal veto, 298 –99; religious opposition to, 251–

Index 52; repurchase of Indian lands and, 133; revolving fund concept, 83; scholarly opinion of, ix–xi; Senate committee hearings on, 231– 36, 240 – 41, 242 – 45, 251, 253, 254, 265 – 66, 268 – 69; Senate revisions, 272 –73; Shepard proposal, 195 –97; on Sioux benefits and claims, 248, 257; submission to Congress, 207– 8; tribal alternative ideology and, 230, 290 – 91, 297; tribal council bill and, 174; tribal land issues, 255 –57, 266, 272 – 73; vacuum theory of Indian governments and, 205, 282; Wheeler’s objections to, 231, 232, 233 – 34, 235 – 36, 242 – 45; Wheeler-Zimmerman summit and, 249 –51, 254, 287– 88; Wilbur-Rhoads letters and, 107, 285 – 86. See also individual Titles — on Indian self-government: application to tribes or reservations, 258 – 61; on b i a authority over Indian affairs, 264 – 66, 281; claims legislation and, 270; Collier’s statement on, 276; definitions of Indian and tribe, 267– 69, 279 – 80; impact on, 301; provisions and arguments supporting, 295 –97; provisions on governments and corporations, 261– 63; revolving fund provision, 269 –70 Indian Rights Association, 24, 45, 63, 66, 94, 184, 187, 209, 251 Indian Rights Association of Chicago, 178 Indian Rights Committee (a c l u), 164 – 65, 172 Indians at Work (periodical), 146 Indian Self-Determination and Educational Assistance Act (1975), 226 Indian self-government: allotment policy and, 53 –54; b i a discouragement of, 12 –15, 34; Collier and, 155, 294 –95; Document A proposals on, 200 –201; Document B proposals on,

355

202; Indian law and, 5, 33; Indian proposals for, 123 –25; legislative proposals adopting tribal alternative ideology, 116 –23, 125; Meriam Report and, 77– 81, 82, 83; RhoadsScattergood administration and, 101; Shepard proposals on, 195 –97; Wheeler and, 294 –95 —Indian Reorganization Act and: application to tribes or reservations, 258 – 61; on b i a authority over Indian affairs, 264 – 66, 281; claims legislation and, 270; Collier’s statement on, 276; definitions of Indian and tribe, 267– 69, 279 – 80; impact on, 301; provisions and arguments supporting, 295 –97; provisions on governments and corporations, 261– 63; revolving fund provision, 269 – 70; Title I draft provisions, 220 –21 Indians of the Americas, The (Collier), 142, 143 Indian Territory, 1–2, 5, 39 Indian Truth (periodical), 63 Indian Welfare Committee, 23, 65, 178 indirect administration, 160 – 63, 176, 299 individualism: Collier and, 140 “In Governing the Indian, Use the Indian!” (Oskison), 124 –25 Institute for Government Research, 72, 82, 164 i r a. See Indian Reorganization Act Iroquois Confederacy, 41, 124 irrigation policy/projects, 69, 71, 98 Jefferson, Thomas, 88 Jimerson, Ray and Alice, 277 Johnson, Edwin S., 120, 121 Johnson bill, 120 –22, 123 Johnson-O’Malley Act, 90 Johnson v. M’Intosh, 3 joint stock associations, 131 Jones, Joshua, 277

356

Index

Kellogg, Laura Cornelius, 123 –24, 127, 134 Kellogg, Orrin J., 123 Kelly, Clyde, 278 Kelly, Lawrence C., xi, 68, 69, 144, 156, 163, 177, 233, 297–98 Kelly, Melville, 86 Kennedy, Richard L., 251 Kickapoo Indians, 118 kidnapping bills, 165, 186 King, Judson, 64, 185 King, Thomas J., 126 King, William H., 109, 159, 273 Kinney, J. O., 126 Klamath Agency, 181 Klamath incorporation bills, 106, 127– 33, 134 – 36, 162, 165 Klamath Reservation/Tribe, 67, 78, 260; incorporation proposals, 106, 127– 33, 134 – 36, 162, 165; termination and, 134 Kootenai Indians, 101, 214 Kroeber, Alfred L., 50, 189, 325n. 26 Kunitz, Stephen J., 140, 141

“law and order” bill (1926), 153 –55 Leavitt, Scott, 14, 155 Leavitt Act, 100 Lee’s Ferry Bridge, 69 legal aid, 81 Legislative Reorganization Act, 112 Lemery, Marie, 20 Lenroot bill, 25 Leupp, Francis, 82 Leupp Agency (Navajo), 19 liberalism: Collier and, 140 Lindquist, Rev. G. E. E., 10, 184 loans, 249; revolving fund program, 269 –70 lobbyists, 66 – 67 lolomi, 123 Lolomi Program of Self-Government, 123 Lone Wolf v. Hitchcock, 5 Luhan, Antonio, 185 Luhan, Mabel Dodge, 67, 145 Lyons, Jesse, 277 Lytle, Clifford M., xi, 39, 117, 223, 225, 230, 290, 302

Lac Courte Oreilles Band (Chippewas), 38 La Farge, Oliver, 64, 189, 209, 237, 244, 251, 311n. 10 LaFollette, Robert M., 70 Lake Mohonk Conferences, 48, 63 land. See forest lands; tribal lands; trust lands Land of Little Rain, The (Austin), 145 Lane, Franklin K., 121–22, 125 Lansdale, Robert, 184, 186 Lathrop, Julia C., 64 Latimer, Joseph W., 86, 89 –90, 114, 131, 253 law, non-Indian: applying to Indians, 80 – 82, 86; Indian policy ideologies and, 115; “law and order” bill (1926) and, 153 –55; Meriam Report on, 79 – 81, 86. See also Indian law

Madison, James, 60 Madison, William, 66 Major Crimes Act, 5, 15 Mandan Tribe, 41 Mapes, Carl E., 278 Margold, Nathan, 163, 164 – 65, 179, 184, 185, 186, 192, 197, 204, 209, 295, 298 Mark, Mary Louise, 72, 74, 77–78, 81 marriage, Indian, 7, 14, 244, 245 Marshall, John, 4 Marshall, Louis, 163, 203 Marshall, Robert, 163, 180, 182, 184, 202 – 4, 289 Massacre (Gessner), 184 McCarran, Patrick, 273 McCarthy, Clifford, 184 McCray, E. R., 217 McIntyre, M. H., 237, 242

Index McKenzie, Fayette A., 72, 73 McKittrick, Margaret, 25 –26 McNary, Charles L., 129 McNickle, D’Arcy, 181 Mead, Margaret, 59, 189 Mekeel, Scudder H., 189 Menominee Reservation/Tribe, 78; incorporation proposals and, 126, 133 – 34, 136; Indian Reorganization Act and, 133 – 34; termination and, 134 Meriam, Lewis, 64, 71, 72, 74, 76, 79, 81, 82, 98, 105, 158, 177, 184, 209 Meriam Report, 43, 56, 63, 151, 158; administrative reform and, 82, 83 – 86, 92 –93; on allotment policy, 75, 78, 83, 285; on applying non-Indian law to Indians, 79 – 81, 86; assimilationist goals of, 83, 85; civilized/ savage viewpoint in, 82; critical approaches in, 73 –74; on forced assimilation, 76; on incorporation, 78 –79, 86, 127; on Indian governments, 77–79, 85 – 86; on Indian poverty, 74 –75, 83 – 84; Indian Reorganization Act and, 285; Indian self-government and, 77– 81, 82, 83; on missionary activities, 76 –77; recommendations of, 82; survey staff for, 72 –73; termination ideology and, 85, 86; thoroughness of, 71–72; underlying ideology of, 85; views of assimilation in, 75 –77, 80; writing process for, 74 Meritt, Edgar B., 10, 21; Santa Clara Pueblo dispute, 28, 30 – 32, 33; speech on Indian policy, 88 – 89; Warm Springs business committee and, 101–2 Merriam, C. Hart, 185, 186, 208 Mexico: ejidos, 150, 159 Miner, H. Craig, 60 mineral rights: Papago Reservation and, 231– 32, 252, 257, 272, 287

357

minority group concept, 9 Mirabla, Antonio, 185 missionaries: assimilation and, 10; Indian policy and, 44 – 45; Meriam Report on, 76 –77; opposition to the Collier administration, 251–52; religious conversion and, 43 – 44 Mission Indian Federation, 252, 277 Moapa Indians, 215 Modoc Indians, 127 Monahan, A. C., 208, 238 Montana Power Company, 20, 236 Montezuma, Carlos, 59, 60, 86 – 87, 89, 117 Morgan, J. C., 214 –15 Morgan, Lewis H., 48 Morton v. Mancari, 267 muckraking, 68

n a a c p. See National Association for the Advancement of Colored People National Advisory Committee on Indian Affairs, 70. See also Committee of One Hundred National Association for the Advancement of Colored People (n a a c p), 164 National Association of Indian Rights, 64 National Association on Indian Affairs, 187, 209, 251 National Conference of Social Work, 64, 140, 188, 196 National Council of American Indians, 65, 66, 132 National Popular Government League, 64 nations, 268 Nations Within, The (Deloria), xi Native Americans: anthropologists and, 50; civilized/savage viewpoint of, 45, 49; Collier administration and, 181, 190; Collier’s views of, 50 – 51, 142 – 45, 321n. 11; as commission-

358

Index

ers of Indian Affairs, 177–78; federal protection of, 4 –5; formation of Indian policy and, xiv; future of, 302 – 3; Great Depression and, 99 – 100; health conditions, 97–98; intimidation by Indian agents, 122; Meriam Report survey staff and, 72 –73; minority group definition of, 9; population statistics, 310n. 7; poverty and, 74 –75, 83 – 84, 300; racism and, 45, 49 –50; support for tribal council bill, 169, 174; transmission of Native languages and culture, 46; tribal alternative proposals by, 123 –25; U.S. citizenship and, 8; “urban,” 43; white views of, 49 –51. See also Indian nations/societies —Indian Reorganization Act and: congresses, 245 – 49, 253 –54, 289 – 90; definitions of tribe and Indian, 267– 69, 279 – 80; elections, 248 – 49; Indian-initiated amendments, 247– 49; input into, 210 –11, 218; knowledge about, 284 – 85; provisions exempt from tribal veto, 298 –99; responses to, 212 –17, 252 –53, 289 Native Hawaiians, 267 native religion: Collier administration directive on, 183 – 84 Navajo Nation, 217; assimilation and, Collier on, 147– 48; b i a -introduced political structures, 17–20; chapters, 19 –20; consensus and, 58; constitution of, 19; culture change and, 59; decentralized structure of, 16 –17; education and, 46; effects of reservation life and policies on, 41– 42; formation of Tribal Council, 18 –19; Indian Reorganization Act and, 247; indirect rule concept and, 162; oil leases and, 18; response to the i r a, 215 Navajo Reservation, 287; division into agencies, 17

Navajo Returned Students’ Association, 177 Navajo Tribal Council, 6, 18 –19, 28, 58, 247, 320 –21n. 2 New Deal, 179, 182 “New Deal for Indians, The” (Freeman), xi–xii New Mexico Association on Indian Affairs, 25, 63 New York Indians, 280 New York Training School for Community Workers, 160 New York Tribune (newspaper), 161, 241, 270 –71, 279 Nez Perce Indians, 214 Nixon, Richard, 300 Northern Paiute Indians, 127 oil leases, 18, 69 Ojisto Council of New York, 66 Oklahoma, 1–2, 161; Indian Reorganization Act and, 260, 267, 280 Omaha Land Owner’s League, 253 Omaha Tribe, 59 O’Mahoney, Joseph C., 259, 266, 273 O’Malley, Thomas, 234 Omnibus bill, 70, 86 Osage Guardianship Act, 69 Osage Indians, 69 Oskison, John M., 124 –25 Otis, D. S., 197 Owl, W. David, 64 Paiute Indians, 44, 215 Papago Indians/Reservation, 7, 101, 272, 287; mineral development issue, 231– 32, 252, 257, 272, 287 Parker, Arthur C., 59 Parker, Ely, 9, 177 Parker, Gabe, 177 Patterson, Florence H., 70 Pawnee Indians, 217 Peavey, Hubert H., 240, 277 People’s Institute, 140

Index per capita income, 74 Perkins, F. E., 101, 102, 103 peyote religion, 44, 60 Philp, Kenneth R., x, xi, 107, 113, 138, 140 Pierce, Walter M., 278 Pima Indians/Reservation, 98, 216 plenary power doctrine, 5, 242, 299 Pottawatomi Indians, 38 poverty, 300; Meriam Report on, 74 – 75, 83 – 84 “Powers of Indian Tribes” (Cohen), 5 Prairie Band (Pottawatomis), 38 Pratt, Richard, 45, 48, 86, 87–90 press: coverage of i r a debates, 270 – 71, 279 Preston-Engle report, 69, 71 principales, 29 Problem of Indian Administration, The. See Meriam Report “Problem of Law and Order on Indian Reservations, The,” 200 –201 Progressive Era: tribal alternative ideology and, 116 property rights, 4, 51; Meriam Report on, 81, 83; termination ideology and, 90. See also tribal lands Protestant missionaries, 10 public health: Rhoads-Scattergood administration and, 97–98 Public Health Service, 97 Pueblo Indians: allotment policy and, 54; All-Pueblo Council, 23 –24, 25, 26, 27, 28, 43; American Indian Defense Association and, 163; Bursum bill and, 23, 24; Collier and, 142 – 43; dances, 24; effects of reservation life and policies on, 42; irrigation projects and, 69; land bill (1933), 184; land disputes and, 23, 24; response to the i r a, 215, 216; Santa Clara Pueblo factional dispute, 28 – 32, 33 – 34, 60; traditional governmental structures, 23 –24, 28 –29, 36 –

359

37, 58; tribal council bill and, 169; tribal government, conflicts involving, 23 –28; United States Pueblo Council, 25 –28, 33 Pueblo Lands Board, 24, 163 Puyallup Tribe, 37– 38 Puye ruins, 31 Pyramid Lake Paiute Tribe, 44, 102 Quakers, 95 Quapaw Tribe, 38, 258 Quinaielt Reservation, 78 racial classification, 117 racism, 49 –50; federal educational policies and, 45 railroads: allotment policy and, 47 rancherias, 157 ranchers, Indian. See Indian farmers/ranchers Rappahannock Indian Association, 12 rationing policies, 75 “Red Atlantis,” x, 138 Red Man in the New World Drama, The (Wise), 67 Reed, Daniel A., 277 Reeves, John R. T., 170, 184 reimbursable debt: cancellation of, 100, 108 reimbursement charges, 69 religions, traditional, 44, 60; dances, 24, 142 – 43 religious groups: opposition to the Collier administration, 251–52. See also missionaries removal policy, 42 Republican Party, 110; Congressional partisan politics and, 191–92; Congressional vote on the i r a, 278, 279 reservations: Christian missionaries and, 43 – 44; creation of, 1; dismemberment of tribes, 42 – 43; effects on Indian societies and governments, 41– 44, 45 – 46; federal educational

360

Index

policies, 45 – 46; forced economic changes on, 41– 42; Indian law on, 4; oil leases and, 69; placing unrelated tribes together, 42 restorationist ideology, 302 revolving fund program, 83, 269 –70 Rhoads, Charles J., 64, 90, 91, 94, 95, 96, 102, 105, 127, 131, 171. See also Rhoads-Scattergood administration Rhoads-Scattergood administration: additions to Indian lands under, 101; allotment policy under, 100 –101; cancellation of reimbursable debt, 100; Collier and, 103 – 4, 105 –10; criticism of, 108 –10; education under, 97; federal appropriations and, 95 –97; implementation of administrative reforms, 95 –103, 112; Indian governments and, 101– 3, 172; Indian policy reform and, 286; Indian self-government and, 101, 102; Klamath incorporation bills and, 129, 130, 131, 132, 136; legislation and, 110 –13; organizational changes, 98 –99; personnel expansion, 98; personnel upgrading, 98; proposed study of Indian law, 112 – 13; public health under, 97–98; tribal council bill and, 165, 171–72; Wilbur-Rhoads letters and, 105 – 8, 112 Rio Grande Conservancy District, 69 Robinson, Joseph, 10, 279 Rockefeller, John D., Jr., 63 Rocky Mountain Power Company, 20 Roddis, E. E., 129 Roe Cloud, Henry, 59, 64, 73, 81, 177, 246 Rogers, Will, 234 Roosevelt, Franklin D., 177, 182, 188, 192, 236 – 42, 275, 279, 282, 291 Roosevelt, Theodore, 9, 55 Rowlodge, Jesse, 253 Ryan, W. Carson, Jr., 64, 72, 76, 97, 184

St. Paul Dispatch (newspaper), 217 San Carlos Apaches, 103 Sandoval case, 23 San Juan Agency (Navajo), 18 Santa Clara Pueblo, 28 – 32, 33 – 34, 60 Santa Clara Pueblo v. Martinez, 226 Santa Rosa, Ariz., 7 Saturday Evening Post (magazine), 105 “scattered” Indians, 43 Scattergood, J. Henry, 58, 94, 95, 96, 132, 133, 172, 184, 185 – 86, 209, 235, 291. See also Rhoads-Scattergood administration schools, 84, 88; Carlisle Indian School, 45, 87; Haskell Institute, 246 Scott, Hugh L., 99 Search for an American Indian Identity, The (Hertzberg), 178 secretarial authority, 264 – 66, 281 Secretary of the Interior: authority over Indian affairs, 264 – 66, 281 self-government. See Indian selfgovernment Seminole Tribe, 37. See also Five Civilized Tribes Senate Committee on Indian Affairs, 47, 71, 90, 112, 113, 129, 190; Collier’s views on Indian governments before, 152 –53; Indian-derived tribal alternative proposals and, 123, 125; Indian Reorganization Act hearings, 231– 36, 240 – 41, 242 – 45, 251, 253, 254, 265 – 66, 268 – 69; Johnson bill and, 121–22; Klamath incorporation bills and, 131; Wilbur-Rhoads letters and, 105 Senate Survey Committee, 102 Senate (U.S.): i r a floor debates, 270, 271–73; Johnson bill and, 121; passage of the i r a , 279; revisions of the i r a , 272 –73, 287 Seymour, Flora Warren, 85, 146, 239 Shepard, Ward, 181, 182, 189, 194, 195 – 97, 203, 232, 246 – 47, 289

Index Shepardson, Mary, 16 –17, 18 Shoshone Indians, 215 Shotwell, Lyman, 103 Siegel, Melvin, 193 –94, 197–200, 203, 207, 209, 249, 288, 289 Sioux Indians: attempts to obtain self-government, 13 –14; attempts to sue the federal government, 12 –13; benefits and, 248, 257; dismemberment across reservations, 42 – 43; Indian Reorganization Act and, 257; temporary councils, 12, 13 –14 Sloan, Thomas L., 59, 66, 118, 121, 177, 178, 185, 227 smallpox, 41 Smith, J. Allen, 116 Sniffen, Matthew K., 105, 158, 184, 209, 285 society, 268 Society of American Indians, 59 – 60, 65, 66, 118, 125; Laura Cornelius Kellogg and, 124; Carlos Montezuma and, 87; John Oskison and, 124 Southern Utes, 214, 217 Spencer, Selden P., 125 Springfield Republican (newspaper), 161 Sproul, William Henry, 91 state jurisdictions: allotment policy and, 53 state laws: Meriam Report on, 80 – 81 state taxation, 83 state trusts, 90 Steele, Mead, 66, 173 –74 Stein, Gary, x Stephens, John H., 117, 118, 119 –20 Stephens bills, 117–20 Steward, Luther, C., 252 Stewart, James C., 182, 203 Stiewer, Frederick, 242, 270 Summer Moiety (Santa Clara Pueblo), 29 – 30 Sunset (magazine), 68 Supreme Court (U.S.): Brown v. Board

361

of Education, 164; Dawes Act and allotment policy decisions, 5, 53, 301, 312n. 37; formulation of Indian law and, 2 – 3, 4, 5, 6; on Indian preference, 267; on Indian societies, 268; on national citizenship of Indians, 52, 53, 89 Swing-Johnson bill, 157, 210 Swinomish Tribe, 125 Taos Pueblo, 24, 63, 142 – 43, 300 taxes: incorporation bills and, 130 – 31; Meriam Report on, 83 Taylor, Graham D., x–xi, 115, 287 Teller, Henry M., 48 temporary councils, 12, 13 –14 termination ideology: Collier and, 162, 176, 293 –94; comparison to other ideologies of Indian policy, 114 –15; identification of bureaucratic conservatism, 91–92; Klamath incorporation bills and, 128, 130; legislative proposals and, 86, 91; Meriam Report and, 85, 86; proponents of, 86 –90; termination of Klamath and Menominee Tribes, 134; Wheeler and, 293 –94 Thomas, Elmer, 90, 191, 232, 234 – 35, 243 – 44, 266, 280 Thompson, Ernest E., 217 Thompson, Huston, 163 Thompson, Vern E., 258 Thornton, Russell, 41 timber lands. See forest lands; tribal lands Title I (i r a): ambiguities and problems in, 227–28; on chartered governments, 220 –24; on civil liberties, 226; on devolution, 224 –26; on federal guardianship, 226; on Indian self-government, 220 –21 Title II (i r a): draft provisions, 228 Title III (i r a): draft provisions, 228; Wheeler’s objections to, 242

362

Index

Title IV (i r a ): draft provisions, 228; Wheeler’s objections to, 242 – 43 Tohono O’Odham nation, 7, 231 trachoma, 98 treaties, 3 treaty-based alternative, 302 tribal alternative ideology: Collier and, 136, 155 – 65; impediments to, 135 – 36; incorporation and, 123 –24, 126 – 36, 159 – 60; Indian-derived legislative proposals, 123 –25; Indian governments and, 116 –23, 125; Indian Reorganization Act and, 230, 290 – 91, 297; legislative proposals adopting, 116 –23, 125, 163 – 65; overview of, 115 –16; Wilbur-Rhoads letters and, 107, 158 –59 tribal authorities, 7 tribal corporations. See incorporation tribal council bill: in Collier’s reform proposals, 176; Cosmos Club conference on, 185 – 86; formation of, 165 – 68; opposition to, 169 –72; provisions of, 168 – 69; supporters of, 172 –74 tribal councils: Rhoads-Scattergood administration and, 102, 103; temporary, 12, 13 –14; in traditional governmental structures, 37– 38; WilburRhoads letters on, 106. See also Indian governments tribal lands: allotment policy and, 47, 54, 55 –56, 136; b i a failure to protect, 126; Cohen-Siegel proposals on, 197–98; incorporation proposals and, 126, 127–28; Indian Reorganization Act and, 255 –57, 266, 272 –73; i r a Title III draft provisions, 228 – 29; loss of, 136; occupancy rights, 3 – 4; Pueblo Indian land disputes, 23, 24; Pueblo land bill (1933), 184; repurchase of, 133; Rhoads-Scattergood administration and, 100 –101; Shepard proposal on, 195, 196; tribal

council bill and, 169. See also property rights; trust lands tribal organization, 7 tribal resources: incorporation proposals and, 126, 127–28; Indian Reorganization Act and, 256 –57; i r a Title I draft provisions, 226; i r a Title III draft provisions, 228, 229; Papago Reservation mineral rights controversy, 231– 32, 252, 257, 272, 287; Wilbur-Rhoads letters on, 106 tribal trusteeships: Latimer’s proposal, 90 tribe: i r a definition of, 268, 279 – 80 trust lands: allotment policy and, 47, 54; Collier and, 293; Great Depression and, 99 –100; Indian Reorganization Act and, 300; Latimer’s proposal, 90; Rhoads-Scattergood administration and, 100 –101, 135 – 36 tuberculosis, 97–98 Umatilla Tribe, 38 United States Pueblo Council, 25 –28, 33 United States v. Nice, 53, 89 universities, 97 “urban” Indians, 43 U.S. v. Sandoval, 268 Utes, Southern, 214, 217 voting rights, 52 Walapai Tribe, 37 Walker, Levi, 128 –29 Walker bill, 128 Walker River Reservation, 54 Wallace, Henry A., 191, 238 Ward, Frank Lester, 141 Warm Springs Reservation, 101– 3 Warren, Nina Otero, 25 Washakie, Charles, 215

Index Wassaja (newspaper), 87 water rights, 4, 273 Wathen, Albert L., 180 Werner, Theodore R., 148 – 49, 276 West, Roy D., 10 Wheeler, Burton K., 22, 177, 190, 192, 207; antagonism with Collier, 235 – 36; on Indian governments, 243 – 44; on Indian law, 244; on Indian policy, 244 – 45; political ideology and, xiii —Indian Reorganization Act and: application issues and, 259; areas of disagreement with Collier, 292 –95; definition of Indian and, 268 – 69; influence on, 284, 287– 88; objections to, 231, 232, 233 – 34, 235 – 36, 242 – 45; presidential approval and, 236 – 37, 240 – 41; on secretarial authority, 265, 266; Senate floor debates and, 271–72, 273; Wheeler-Zimmerman summit, 249 –51, 254 Wheeler, Walter H., 21 Wheeler-Howard Act, 286. See also Indian Reorganization Act Wheeler-Howard File, xi, 290 Wheeler-Zimmerman summit, xi–xii, 249 –51, 254, 287– 88 Wheelock, Dennison, 59, 66 White Earth Reservation, 118 –20 White Mountain Apache Tribe, 37 Wilbur, Lyman, 108, 112, 127, 232, 235,

363

287; on allotment policy, 100; b i a appropriations and, 95 –96; career of, 94 –95; Collier and, 104; forced assimilation and, 104 –5; incorporation bills and, 127, 129, 130 – 31; tribal council bill and, 171–72; Wilbur-Rhoads letters to Congress, 105 Wilbur-Rhoads letters, 105 – 8, 112, 158 –59, 285 Williams, Billy, 102 Williamson, William, 13 –14 Wilson, Francis C., 25, 163 Wilson, Woodrow, 86 Winters Doctrine, 249 Winters v. United States, 4 Wise, Jennings C., 67, 153 Woehlke, Walter V., 68, 180 – 81, 182, 194, 208 women: native culture and, 59 Worcester v. Georgia, 3, 200 Work, Hubert, 10, 11, 14, 30, 70, 71, 73, 90 Yankton Sioux Agency, 119 Yavapai Indians, 117 Yuma Tribe, 38, 60 Zimmerman, William, 102 – 3, 180, 181, 182, 183, 208, 209, 250, 254 Zitkala-sa. See Bonnin, Gertrude Zuni Indians, 37