Historical View of Federal Indian Services
Developing . . .
The U.S. Army (Cavalry), was the first federal “government” known to tribes in the Dinétah region, first appearing in 1846 to occupy Mexican territory. The new territory was at first governed by a civilian provincial government, incorporating in 1850 as the Territory of New Mexico. The territorial governor could not control waves of white settlers who formed hundreds of “volunteer militias” that performed outlaw raids on Native Americans who had lived in the area for generations. Behind these settlers came the ministers and missionaries.
An Indian Agent served as liaison with tribes.
The Navajo Treaty of 1850 was signed by the U.S. military commander, New Mexico Territory governor, Indian Agent, and two chiefs of the Navajo Tribe. Pre-dating Hwéeldi, the 1850 Treaty contains promises for permanence that are fundamental to the expectations of the Diné in regards to the federal government relationship and obligations. In exchange for submission of the Diné to its government, the United States would fulfill a guardianship role, and undertake through legislation and action “to secure the permanent prosperity and happiness” of the Navajo people. For protection, the Treaty authorized the building of U.S. military forts.
10 military forts were built beginning with Fort Defiance in 1851. For the next 10 years, known as naahondzood, period of fear, hundreds of New Mexico volunteer militia would kill warriors, capture and enslave women and children, and destroy crops and dwellings in outlaw skirmishes as white settlements expanded. The forts became occupier outposts for control of Indians. When it was determined that they had lost control, U.S. troops began consolidating military campaigns with militia. This began a horrific period of t’aa altso anaa’ silii’, when existence of every living being was under attack.
Beginning in fall and winter of 1863, the U.S. Cavalry and militia marched through Navajo country attacking and killing Diné at their camps, slaughtering livestock, burning hogans and crops, fouling wells, and virtually destroying any property and food supply the people would need to survive. Their livelihoods and communal infrastructures destroyed, 8,500 Diné surrendered at Fort Defiance over several months and were force-marched from there on foot in four separate large groups and a number of smaller ones for over 400 miles to a barren reservation at Bosque Redondo in eastern New Mexico near Fort Sumner. There, divided into indiscriminate groups with other captured peoples and denied humane rations, Diné endured five years of torturous captivity that is known as Hwéeldi, an experience never spoken of by elders. At least 2,000 Diné died, not counting countless who perished during the Long Walk.
Hwéeldi is synonymous with misery, starvation, disease, and death to the Diné people. In 1964, after realization of abject failure of this captivity, Congress finally reserved land in New Mexico for a Navajo reservation. A treaty demarcating boundary lines and further conditions would follow in 1868.
The Army’s purpose was to quell, push westwards and ultimately break the power of Indian tribes in order to clear territory for white settlement. The territory they “cleared” grew to continental proportions, involving immense distances, limited resources and far-flung operations upon which the military reorganized to a territorial-based administrative structure with designated divisions, departments, and districts. There were frequent organization modifications, boundary rearrangements, and transfers of troops and posts to meet changing conditions, performing, by force, stop-gap “governmental” functions. The Cavalry was stationed at Fort Wingate on the Navajo reservation, having forced the Long Walk, burned Diné homes and farms, and policed tribal disputes with white settlers. Diné elders still view the U.S. Calvary as a being whose return must be avoided.
Army officers, agents, superintendents and clerks of the War Department were the first federal presence. In 1849, the Indian Agents came under the newly formed Department of the Interior (DOI), in recognition that Indians now confined to reservations must be managed by policies and tasks related to other than war. The fledgling DOI came to be the umbrella for numerous Indian nd programs
They provided support to the Indian Agent backed by the Indian Superintendent, administering an Indian Agency through the Office (later Bureau) of Indian Affairs that implemented federal Indian policies beginning in 1824.
The 1974 Navajo-Hopi Land Settlement Act (Relocation Act) further created a 3-member relocation commission to administer the Act. In 1988, the relocation commission was abolished and the Office of Navajo Hopi Indian Relocation (ONHIR) was established in its place as a separate administrative program governed directly by the Relocation Act. The ONHIR’s unique existence and funding stream has had large consequences reservation-wide, both positive and negative.
ONHIR is separate from the BIA and answerable directly to Congress. For decades, ONHIR administered lands taken into trust under the Relocation Act for the Navajo Nation. It has been allocated immense funds (estimated $300 million) for relocation. In July 1990, ONHIR issued procedures for the leasing of New Lands, including homesite and business leases. As of 2018, ONHIR had 31 employees in 3 offices in Flagstaff, Sanders and Chambers, AZ.
Special Conditions:
While sometimes called the “BIA Phoenix office” by NPL residents, the ONHIR has no relation to the BIA and lacks BIA internal control standards. It has greater independent power and none of the BIA’s budgetary and oversight constraints. Its newness, independence, and immense budget has given the ONHIR unmatched regional influence and presence. For many years, the ONHIR displaced the BIA as the go-to office for funding for capital projects in return for a chapter’s approval of some homestes for a relocatee.To encourage existing chapters to receive relocatees, the Act heavily funded chapter infrastructure development, and ONHIR technical advisors drafted lease templates for the chapter’s use for the relocatees. Due to the trust placed in the ONHIR as a federal entity able to provide infrastructure funding without undue red tape, Navajo Nation chapters have advocated for its continued operations even though the ONHIR itself has asked for termination due to fulfillment of its mission.
Evolved Conditions–Unnecessary prohibition against keeping livestock on homesites across the reservation
To discourage relocatees from remaining on the Big Reservation where every land not used was considered “customary land” belonging to someone, the Relocation Act prohibited the raising of ivestock for relocatees who chose to relocate to existing Navajo Nation chapters on the Big Reservation.
The ONHIR drafted template homesite lease forms for chapter use for the relocatees limiting homsites to one acre and prohibiting livestock. Over time, these form s were used for all homesite leases, even for homesites of families who long lived in the area. Officials began applying the Navajo-Hope Land Settlement pohibition against livestock and limitig size of homesites, to everyone, and not just relocatees. Soon, it was forgotten that the forms originated from he ONHIR to implement a particular provision only for a small group. The forms soon came to be used reservation-wide for everyone, under a general impression that they are required by law, and that land shortage is severe.
The Marshall Trilogy are three cases from the early 19th century that established three fundamental federal Indian law doctrines: (1) Under the doctrine of discovery, the United States as the “discovering nation” has the sole right to dispose of Indian lands, while Indians have the right to occupy them. (2) Under the doctrine of federal trust responsibility, tribes confined to reservations are “domestic dependent nations,” having exchanged to the United States other lands to which they have “inherent tribal sovereignty,” and therefore must be protected and provided basic necessities by the United States. (3) Under the doctrine of retained inherent tribal sovereignty, state laws have no force on reservations, where tribes have authority to make and enforce their own laws as distinct communities occupying their own territories.
The Indian Agency, Indian Agents and Indian Superintendents came into being as tribes ceded vast lands in return for money, services and goods. They were characterized as ambassadors or go-betweens between the U.S. and Tribes. They were not governance entities, but were viewed as quasi-governors.
While treaty terms invariably limited the time period that the U.S. would be obligated to give money, services and goods, in the 1830s the U.S. Supreme Court in the “Marshall Trilogy” cases had determined that under the doctrine of federal trust responsibility, tribes confined to reservations are “domestic dependent nations,” having exchanged to the United States other lands to which they have “inherent tribal sovereignty,” and therefore must be protected and provided basic necessities by the United States. The Supreme Court also affirmed that tribes retained inherent tribal sovereignty, under which tribes would govern themselves. These doctrines
Below is a brief history of federal Indian affairs beginning in 1775.
1775 – Standing Indian Committee of Continental Congress
In July 1775, the Continental Congress established a standing committee to manage Indian affairs on behalf of the United Colonies, consisting of three departments: one for the Six Nations, one for the Indians of the Ohio country, and one for the southern tribes, primarily to keep them out of the revolutionary war. Benjamin Franklin was the first Indian Commissioner. The commissioners could appoint agents and seize any person inciting the Indians to become enemies to the American colonies. The Continental Congress appropriated funds for subsistence level Indian goods, regulation of trade licenses; and for schoolmasters and ministers. Historic Review of Indians in the United States.
Purpose: To keep Indians friendly and neutral as the Revolutionary War commenced, begin creating dependency, regulation of colony traders’ highly destructive commerce in rum, and first steps toward assimilation.
Sole right over Indians
In 1776, the United States of America, came into being under which the newly developed central government shared power with the states. In the Articles of Confederation, the central government was empowered with “sole and exclusive right” to regulate Indian affairs, to wage war and peace, conduct diplomatic relations, requisition men and money from the states, and coin and borrow money. The states were empowered to enforce laws, regulate commerce, administer justice, and levy taxes. (The Indian Affairs Clause from the Articles of Confederation failed to appear in the Constitution).
Needing help in the revolutionary war, in 1778 Congress authorized the employment of Indians in the army “if General Washington thinks it prudent and proper.“ According to the Albany Plan, the Union would obviate the chaos of different procedures among the colonies, “make all purchases from the Indians for the crown of all lands not within the bounds of particular colonies,” and make all laws regulating Indian trade, including regulation of the destructive commerce in rum and whiskey “supplyed (to Indians) by the traders in vast and almost incredible quantities” (which Franklin considered a form of genocide). Treaties, the appointment of government agents and superintendents to serve as intermediaries between Native Americans and the government, and raising and arming troops to put down insurrections, are examples of strategies the Confederation Congress used to open areas for further white settlement, either by maintaining peace or waging war.
U.S. Political weakness, and western expansion
Reacting to the pressure of white settlers anxious for new land, Congress sought treaties with Native Americans to insure the safety of the settlers, and to obtain clear title for the land. Although treaties were usually negotiated in good faith, Congress found itself politically unwilling and actually unable to halt illegal settlement of Indian lands by white settlers.
Treaties, War Department, and U.S. empty treasury
When the War Department was created in 1780, Indian affairs formally came under the charge of the Secretary of War and so remained until the Department of the Interior was created in 1849. War Department Indian Agents were army officers and sometimes civilians, responsible to pay out tribal annuities supported by two clerks. As Native Americans became dependent for arms, ammunition, and clothing, Ben Franklin noted that there was prohibitive expense in directly managing Indian trade and relations, and such costs should be shifted to the colonies. The Secretary of War, backed by a militia, marched into places as directed by the Indian commissioner for negotiation of treaties. In 1783, the Secretary was ordered by Congress to notify Indian nations on the frontier that the U.S. was disposed to enter into friendly treaty with the different tribes after attempting, and failing, to treaty with tribes in a single convention. In 1787, cash-poor and in response to a report from the Secretary of War, Congress retreated from its more aggressive attitude towards Native American lands, and promised to strive for “peace with the Indians, provided it can be obtained and preserved consistently with the justice and dignity of the nation.” The Treaty era that ended in 1871 resulted in 360 treaties and almost endless confusion.
Indian districts, Indian superintendents, and state Indian commissioners
In 1784, Congress passed an ordinance establishing a northern district of tribes north of the Ohio and west of the Hudson River, and a southern district, of tribes south of the Ohio each with an Indian superintendent answerable to the Secretary of War and serving 2-year terms to act in connection with the authorities of the states. He was empowered to give bonds and transact business at U.S. military outposts, installing deputies to live in vicinities best to facilitate the regulation of Indian trade. In 1787, Congress empowered states to appoint their own state Indian commissioners. In some cases, these positions joined to make treaties. From 1798 to 1834, Indian superintendents, agents, and traders were appointed by the U.S. President, after which they were appointed by Congress. Ultimately, the Indian districts were controlled by their resident Indian agents.
War Department Indian Bureau and organic law for federal Indian agencies
On March 11, 1824, the Office of Indian Affairs was created within the War Department. In 1834, Congress created Indian districts placed under the charge of War Department officers, defined the duties of superintendents and agents, provided for interpreters and employees, and empowered the President to prescribe necessary rules and regulations in what would be the organic law for the later formation of agencies in an unnamed department of Indian affairs. In 1836, the Indian Office became a “bureau” still under the War Department, which prescribed a new set of regulations to govern the business of the Indian office and the duties of the commissioner. There was almost complete military control of Indian affairs. In 1837, Army officers became administrative agents. With westward settlement, an Indian service commissioner position specifically to support curtailment of Indian roaming grounds, was created by Congress in 1839. However, a report against this military-based system was issued by a congressional committee in 1842 (see Senate Report No. 693, Forty-filth Congress, third session).
Department of the Interior
In 1848, Congress recommended the transfer of the Indian office from the War Department to a prospective Interior Department, by reason of the war with Mexico and the acquisition of new territory containing many thousands of Indians.
(Note that in 1846, Mexican territory in New Mexico and Colorado had come under U.S. Army control, which is the first known encounter of Diné with the federal government. Within 3 years, the U.S. Army would attack Dinétah with a force of 400 militia, resulting in the Navajo Treaty of 1850 and the building of 10 forts, beginning with Fort Defiance in 1851. After years of suffering and captivity, Diné were confined to the Navajo reservation by treaty in 1868).
On March 3, 1849, Congress ordered the creation of the Department of the interior. The Bureau of Indian Affairs was transferred from the War Department to that department, upon which Indians passed from military to civil control.