Near the beginning of his first term as President, George Washington declared that a just Native American policy was one of his highest priorities, explaining that "The Government of the United States are determined that their Administration of Indian Affairs shall be directed entirely by the great principles of Justice and humanity."1 The Washington administration's initial policy toward Native Americans was enunciated in June of 1789. Secretary of War Henry Knox explained that the Continental Congress had needlessly provoked Native Americans following the Revolution by insisting on American possession of all territory east of the Mississippi River. Congress had previously argued that by supporting the British during the war Native Americans had forfeited any claim to territory on the western frontier of American settlement. However, this perspective ignored the fact that only a portion of tribes had actually supported the British.
In 1787, the Confederation Congress enacted the Northwest Ordinance, opening the Ohio Valley to new American settlement. Members of the Western Lakes Confederacy reacted by utilizing armed resistance to protect their land. These events increased the urgency for Washington to develop a formal method for managing Indian affairs. In referring to the constitutional grant of treaty-making powers to the chief executive—with the "advice and consent" of the Senate—Washington declared that a similar practice should also apply to agreements with Native Americans. The Senate acceded to the President's wishes and accepted treaties as the basis for conducting Indian relations.
In response, Congress proceeded to approve a treaty with seven northern tribes (the Shawnee, Miami, Ottawa, Chippewa, Iroquois, Sauk, and Fox). This agreement, however, lacked meaningful protection of tribal land. To the northern tribes this ineffectual treaty and the constant intrusion into their lands by droves of settlers meant that the American government had little control over its own citizens. Members of the northern tribes believed it was necessary to deploy force to prevent further incursions.
Washington's desire to protect American citizens led to an American military response. In 1790 and 1791, Washington dispatched armies to confront Native forces, and in both instances the Americans were soundly defeated. Responding to these two embarrassing setbacks, Congress authorized a five-thousand man regular army to quell resistance. Led by General "Mad Anthony" Wayne, the Legion inflicted a crushing defeat on the Indian confederation in the Summer of 1794. This decisive battle and the ensuing Treaty of Greenville brought a tentative peace to the northwest in 1795.
Simultaneously, as momentous events in the north unfolded, Washington also faced challenges from the four southern tribes. For the Cherokees and the more distant Choctaws and Chickasaws, Washington sought messages of assurance, friendship, and plans for trade. The formidable Creeks were the fourth southern tribe. Washington regarded the Creek with considerable apprehension because of their disagreement with the state of Georgia's interpretation of three treaties that had been negotiated by that state during the 1780s. These treaties included significant cessions of land from the Creeks to Georgia that the tribe did not recognize.
The Creeks' leader was Alexander McGillivray, a mixed-race chief who spoke fluent English and was a shrewd negotiator. Twenty-eight Creek chiefs led by McGillivray accepted Washington's invitation to travel to New York in the summer of 1790 to negotiate a new treaty. The result was the Treaty of New York which restored to the Creeks some of the lands ceded in the treaties with Georgia, and provided generous annuities for the rest of the land. It also established a policy and process of assimilation called "civilization," aiming to attach tribes to permanent land settlements. Under the policy tribal members would be given "useful domestic animals and implements of husbandry" to encourage them to become "herdsman and cultivators" instead of "remaining in a state as hunters."2
In August 1790 the Creek chiefs formally approved the Treaty of New York. The Creek chiefs agreed to place themselves under the protection of the United States. In return, the United States confirmed the sanctity of the Creek land lying within the boundaries defined by the treaty. However, the Treaty of New York failed to achieve its goals, as the federal government could not stem the relentless incursion of American settlers onto "protected" Indian lands. In a letter to Washington, Knox agonized over the possibility of Indian extermination. He observed that in the most populous areas of the United States, some tribes had already been decimated. "If the same causes continue," he explained, "the same effects will happen and in a short period the idea of an Indian on this side of the Mississippi will only be found in the page of the historian."3
Washington and Knox sought to provide safe havens for Native tribes while also assimilating them into American society. Washington and Knox believed that if they failed to at least make an effort to secure Indian land, their chances of convincing Native Americans to transform their hunting culture to one of farming and herding would be undermined. As the two reluctantly came to recognize, however, it was the settlers pouring into the western frontier that controlled the national agenda regarding Native Americans and their land. By 1796 even Washington had concluded that holding back the avalanche of settlers had become nearly impossible, writing that "I believe scarcely anything short of a Chinese wall, or a line troops, will restrain Land jobbers, and the encroachment of settlers upon the Indian territory."4
Richard Harless
George Mason University
Notes:
1. "George Washington to The Commissioners for Negotiating a Treaty with the Southern Indians, 29 August 1789," The Writings of George Washington, 30:392 & 392N.
2. Charles J. Kappler, Indians Affairs: Laws and Treaties, Vol. II, Treaties (Washington: Government Printing Office, 1904), 2:28.
3. "Henry Knox to George Washington, 7 July 1789," The Papers of George Washington: Presidential Series, eds. W. W. Abbot and Dorothy Twohig, 2:139.
4. "George Washington to the Secretary of State, 1 July 1796," The Writings of George Washington, 35:112.
Although some Europeans arrived in the American colonies with the idea of converting Native Americans to Christianity (which by itself led to resistance), most arrived with designs on Indian land. Thus throughout much of U.S. history, these groups have had a hostile relationship. At times, national and state governments have denied rights to Native Americans, including those protected by the First Amendment. In turn, Indian religious beliefs have sometimes posed dilemmas for the application of such freedoms.
Government moved Native Americans to reservations to be governed by tribes
Most Native Americans regarded the land as something that belonged to everyone, but Europeans brought with them the idea of individual property ownership. As the population of European immigrants increased (often because the diseases they brought with them decimated the Native American populations) and their claims to the land expanded, Native Americans were forced to fight or retreat, and frequently had to sign treaties that recognized the rights of the federal government to their lands. Over time, the government moved many Native Americans to reservations, where the tribes exercised powers not unlike those the states exercised over their own citizens.
Although some Europeans arrived in the American colonies with the idea of converting Native Americans to Christianity (which by itself led to resistance), most arrived with designs on Indian land. Thus throughout much of U.S. history, these groups have had a hostile relationship. At times, national and state governments have denied rights to Native Americans, including those protected by the First Amendment. In turn, Indian religious beliefs have sometimes posed dilemmas for the application of such freedoms. In this photo, a baby catches a nap in his mother's cradleboard in Lander, Wyoming, during the Shoshone Indian Antelope Hunt ceremony, Sept. 16, 1941. (AP Photo, used with permission from the Associated Press)
Congress limited the First Amendment freedoms of Native Americans
In the document that emerged from the 1787 Constitutional Convention, “Indians not taxed” were exempted from being counted in the formula for representation in the U.S. House of Representatives. Also, Congress was given the explicit power to regulate commerce with Native Americans as well as to enter into treaties with them. In 1800, not long after adopting the Sedition Act, Congress also adopted “An Act for the preservation of peace with the Native American tribes” that limited First Amendment speech and press freedoms as a way of suppressing Native American criticism of U.S. policies and preventing Europeans from stirring them to action.
Courts have struggle with the government relationships of Native Americans
Over time, the courts have struggled with the relationship between Native American nations and the U.S. federal and state governments. In Cherokee Nation v. Georgia (1831), the Supreme Court recognized that the tribes constituted “denominated domestic dependent nations.” In Worcester v. Georgia (1832), the Court tried to intervene to protect missionaries in Cherokee Indian Territory whom Georgia was trying to evict because of their support for the Cherokees’ resistance to removal from tribal lands. The case was largely mooted, however, when President Andrew Jackson agreed to the removal of the Cherokee to Oklahoma—a decision that resulted in many deaths along the Trail of Tears.
In the 1880s, Roman Catholics became involved in efforts to educate Native Americans, sometimes with the help of the federal government. After some Protestants objected, Congress adopted an Indian Appropriations Act in 1896 that ended the funding, although some support continued through trial trust and treaty funds.
Government policies toward Native Americans have shifted
Congress did not extend citizenship to all Native Americans until 1924. Even though they have remained citizens, government policies toward them have shifted several times. Law professor Rennard J. Strickland (1992) has divided federal policies into five eras:
- “(1) the formative or treaty era (1789–1871);
- (2) the period of assimilation and allotment (1871–1928);
- (3) the time of reorganization and reestablishment (1928–1942);
- (4) the termination movement (1943–1961);
- and (5) the self-determination and tribal revitalization era (1961–present).”
Congress has adopted numerous laws relevant to Native Americans
In recent decades, Congress has adopted numerous laws relevant to Native Americans. The Indian Civil Rights Act of 1968 extends all of the provisions of the First Amendment (except the establishment clause, which might disadvantage tribal religions) and most other provisions of the Bill of Rights to Native Americans. Another law protects sacred Indian shrines. In 1978 Congress adopted a largely hortatory statement of policy in the American Indian Religious Freedom Act. And in other laws it has set aside certain lands in trust for Native Americans and protected Indian graves and funeral objects. Congress has also given Native Americans access to the feathers of American eagles (otherwise forbidden in an attempt to save the species).
Native American religious practice has led to conflict with the government
In part because of past efforts at Christianization, modern Native Americans have a pluralistic religious life that mirrors the larger society. Since the end of the nineteenth century, the Native American religion has often been associated with the ceremonial ingestion of peyote, a mildly hallucinogenic product of cacti. This practice has led to conflict with the war on drugs.
In Employment Division, Department of Human Resources of Oregon v. Smith (1990), the Supreme Court ruled that states were not required to exempt Native Americans who ingested peyote from the general application of its criminal laws (however, in 1994 Congress amended the American Indian Religious Freedom Act to allow Native Americans to ingest peyote for religious purposes). This decision followed Lyng v. Northwest Indian Cemetery Protective Association (1988), in which the Court refused to prohibit the federal government from building a road through a site in a national forest that was sacred to Native Americans.
In 2016, Native Americans were involved in protests over a pipeline in North Dakota that many believed threatened drinking water. Police eventually used pepper spray and dogs to subdue protestors. President Donald Trump, who has touted the pipeline as part of America’s energy policy, has subsequently expedited pipeline construction, which prompted a protest in Washington, D.C. in March 2017.
One recent issue involving Native Americans involves whether a provision in the Lanham Act enabling the United States to reject Patent and Trademark applications that “may disparage” persons or institutions violate the First Amendment. The Lanham Act has been the basis for rejecting some trademarks using Native-American names like “Redskins,” “Braves,” “Chiefs,” “Warriors," and the like.
John Vile is a professor of political science and dean of the Honors College at Middle Tennessee State University. He is co-editor of the Encyclopedia of the First Amendment. This article was originally published in 2009.
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