1. The Dawes Act Transfer of Reservation Lands to Whites Through the Political Process AI_13_13

2. Demand for Indian Land In 1890 the total Indian popu­lation was less than 250,000, and the total area of reservations in 1887 was roughly 138 million acres (about two-and-one-half times the size of the state of Georgia).  Although much Indian land was relatively arid, it seemed to land-hungry westerners that Indians had more land than they could ever use.  At the same time, an active reform movement in the East sought to assimilate Indians into mainstream society by promoting agriculture. This influential group was made up of Protestant religious reformers, educators, and government officials. 2

3. Dawes Act (1887) Congress tried to satisfy both westerners and reformers by passing the General Allotment Act, or Dawes Act, of 1887.  The humanitarian reformers who pushed for the passage of the Dawes Act believed that dividing reservations into privately owned farms would break the hold of the chiefs over individual Indians, encourage Indians to become farmers, and hasten the assimilation of Indians into white culture. The Lake Mohonk Friends of the Indian led late 19 th -century Indian reform on the ground that allotment would promote the Jeffersonian ideal among landed Indians,  This belief was based largely on an inaccurate model of Indian societies—communal—that was popular among social scientists in the 1880s. 3

4. Dawes Act Backers of the Allotment Act touted it as a necessary step for improving the welfare of Indians. As Senator Dawes himself stated, "Till this people will consent to give up their lands, and divide them among their citizens so that each can own the land he cul­tivates, they will not make much progress." 4

5. Allotments & “Surplus” Lands The Dawes Act gave the president the authority to survey reservations when he thought it was appropriate. Individuals who refused al­lotments could have one assigned to them. Before 1903 a tribe had to con­sent to have surplus lands opened for settlement. After that date, the courts ruled that the federal government could sell surplus lands without a tribe's consent and hold the receipts in trust for members of the tribe. 5

7. Dawes Act & Good Incentives?  Allotted land was to be held in trust for the Indians for 25 years, after which it would convert to fee simple (homesteads became fee simple in 5 years)  Allotments could be smaller if a reservation did not have enough land to give each family 160 acres, and in some cases families actually got as little as 10 acres.  Backers claimed that allotment would benefit Indians by dividing up the reservation lands into private ownership plots  create all of the good incentives that private property rights generally create (see WSJ on Argentina families)  facilitate assimilation of the Indians into American culture 7

8. Allotment 1887-1934 After 1887 most Indian reservations were allotted under terms of the Dawes Act, but some tribes, especially in Oklahoma, received land allotted under special legislation.  Reservations in desirable farming areas were allot­ted first, whereas reservations in remote or arid locations were sometimes never allotted.  Thus a number of tribes in the Southwest and elsewhere were never allotted.  Most reservations were allotted between 1887 and 1910, but allotment work continued until 1934. 8

9. Shrinking Indian Lands Congress saw allotment as the key to all other programs, and it remained at the center of federal Indian policy until 1934.  In all, over 41 million acres were allotted to Indians under a variety of laws and treaties.  One conse­quence was that that the land base of Indian tribes declined from 138 million acres in 1887 to 34,287,336 acres in 1934, including additions to some reservations in the Southwest.  Moreover, another 17.8 million acres of land allotted to individuals was still under federal supervision.  Allotments no longer supervised by the federal government had either been sold or the owners no longer had restrictions on their land. 9

10. Shrinking Indian Lands The results of this policy were far-reaching and catastrophic for affected tribes.  A large number of the individual allotments—though meant to establish Indian family farms or ranches—devolved to non-Indian individuals and off-reservation governments through encumbrances, tax liens, bankruptcy, and outright swindles.  While the consequences of the allotment period vary from reservation to reservation, in aggregate the result was the passing of nearly two-thirds of Indian lands—90 million of 138 million acres

12. Special Interest Groups Given the importance that private ownership holds in theories of economic development, one might think that economists would cheer the goals of the Allotment Act. But doing so would ignore the lessons from pub­lic choice economics which call for closer scrutiny of the interest groups backing the legislation. At least two important interest groups involved in the allotment process must be mentioned:  Non-Indian settlers  Office of Indian Affairs (BIA) 12

13. Interest Group Politics and The Allotment of Indian Lands  Settlers and the bureaucracy (discussed below) clearly benefited from the Allotment Act and the resulting developments. like the bootleggers and Baptists example  settlers and bureaucrats were like the bootleggers.  many people felt that "Americanization" was the best way to help Indians  religious groups wanted to convert Indians to Christianity  ”Friends of the Indians" (missionaries, clergy, east coast and especially New York journalists and educators, and government officials) was organized to pursue full citizenship rights for Indians 13

14. Friends of the Indians, and other Political Supporters of the Act  also advocated breaking up the reservations by dividing them into homesteads for the Indians, and a government run education system for all Indians in order to turn them into "good Americans."  felt that the Indians had to give up their strong communities, seeing them as communistic, and that private property rights was the way to do this  strongly supported the Dawes act even though it did not go as far as they wanted in some areas BIA also supported the act  contended that it was the means by which they would ultimately allow the Indians to stand on their own  Apparently wanted to put themselves out of work! no strong opposition to the Allotment Act 14

15. Bootleggers & Baptists The law passed with little opposition, since it also allowed white farmers to purchase unallotted lands (called sur­plus land). Under the Dawes Act, reservations were to be divided into 160-acre farms called allotments. Each family's land was placed in trust for a 25-year period to prevent Indians from being defrauded of their land. But this also meant that the land could not be sold or mortgaged without govern­ment permission. 15

16. Policy Driven by BIA If land-hungry settlers were the main beneficiaries of federal allotment policy, a question immediately arises: why didn't the federal government ei­ther declare all reservation land surplus and open it to homesteading, or grant the Indians full land title without trusteeship so that whites could sim­ply buy the Indian land and gain control more rapidly?  Had the lands been given directly to Indians or whites, what role would have remained for the BIA be­yond supplying Indians with agricultural technology and advice?  The allot­ment system allowed the bureaucarcy to increase its administrative costs by super­vising each allotted parcel. 16

17. Actual Outcome of the Dawes Act  A very complicated and heavily supervised property rights allocation emerged from the allotment process that proved to be inefficient created a situation ripe for corruption.  Inefficient because for most of the Indian Reservations, 160 acres was not enough for a subsistence farm  Homesteading was used to break up federal land in the Midwest first, where the soil is rich and there is substantial precipitation, so 160 acres was a pretty efficient size 17

18. Inefficient Sizes of Allotments  160 acres was much too small in the more arid plains of the west, and the even more arid lands of the southwest and inter-mountain area. homesteaders found this out when they moved into the plains only to discover that they could not survive on the farms they got  same was clearly true for most of the reservations.  In many cases, reservations were large enough so that the Indians could have been given larger tracts (they actually were in the extremely arid areas where some Indian families got as much as 400 acres 18

19. The Real Reason for Inefficiently Small Allotments  Under the Dawes Act, “Surplus” reservation land not allotted, was opened to white settlers  The Homestead Act was ultimately changed when it became apparent that 160 acres was too small, but where the reservation land was attractive to whites, the Indian allotments were not changed  A primary purpose of the Allotment Act was to make it possible for white settlers to obtain reservation lands  not interested in Indian lands in extremely arid areas, so those Indians were given more than 160 acres, but this did not happen with land attractive to whites 19

20. Land Rush Arriving for the Land Rush: Yellowstone Valley, Montana 20

21. 1891 Amendment to the Dawes Act Allowed lease of allotted lands  Much of the allotted land was not being shifted into production, probably because the parcels were too small to work efficiently Parcels of land had to be combined somehow to achieve the scale that was necessary. By leasing allotted land, a farmer could expand the size of an operating farm to achieve the efficient scale of operation. 21

22. 1891 Amendment By amending the Allotment Act in 1891 to allow for the leasing of allotments that had not been released from trusteeship, Congress allowed whites access to the lands while preserv­ing an important role for the bureaucracy.  This gave BIA Indian agents even more power because it was up to them to determine and enforce the terms of leases. 22

23. Whites Gain Control of Reservation Lands too  Lease could be to other Indians or to whites Whites probably had comparative advantages in agriculture over many Indians, at least outside the 5 civilized tribes and a few others that had substantial experience in agriculture before they were put on reservations Whites could pay more for use of the allotted land than it was worth to the Indians (e.g., whites had access to credit markets and often owned other land to use as collateral) 23

24. Special Interest Theory: The IRA (1934) From the special-interest theory of allotment, two important hypotheses follow: 1. Allotment would occur first in those areas where whites placed a higher value on the land held by Indians. 2. As the allotment process transferred millions of acres out of the con­trol of the BIA, the bureaucracy would have lost nearly all of its power had it not halted the process by retaining trust authority under the Indian Reorganization Act of 1934. 24

25. Hypothesis 1 The model predicts that a reservation in a state like Arizona (less than 20 inches of rainfall) would be allotted 10.2 years later than a reservation in a state like Nebraska (more than 20 inches of rainfall). The model predicts that a reservation in Michigan (population density more than 16) would be allotted 14.0 years earlier than a reserva­tion in Wyoming (population density less than 16)  These results support the theory that Indian policy was heavily dominated by non-Indian interest groups. 25

26. Timing of Allotments Allotment did not occur immediately  required substantial bureaucratic undertaking to survey and allot the Indian lands many reservations operated under their customary systems of property rights well into the 1900s  Allotment was still going on into the 1930s, and some reservations were never allotted at all because the allotment process was finally ended. timing of allotment was also politically driven  reservations containing surplus lands that were most desirable to white settlers were allotted first, and those that were the least desirable waited. 26

27. Evidence of Political Influence  Study by Carlson examines the timing of allotment and provides evidence that the earliest allotments were those in the most populated states where the most land had been improved for ag  within those states, the reservations that got the most rainfall were allotted first. allotment was ended in 1934  by that time the average quality of Indian land had clearly fallen as parts of the best land had been transferred to whites while the worst land remained in reservations this process also meant that the size, power and influence of the BIA increased dramatically since it was in charge of the allotment process 27

28. Indian Views Regarding the Dawes Act  probably mixed  Some were clearly going to be worse off, since, within many of the agricultural areas the size of the average farm under the Indian systems of customary use rights was actually larger than 160 acres  there were also many Indians with smaller holdings  Supporters were probably rare on reservations where cultivation agriculture was not feasible  Indians who were on reservations that engaged in open range ranching (e.g., Blackfeet) probably would have opposed the process if they had any political influence, but they did not. 28

29. The Allotment Process  Once allotment began on a reservation each adult male was given four years to choose his land parcel and if he failed or refused to do so, the Interior Department (BIA) was to assign an allotment to him. After all eligible members of the tribe received their allotments, the Act stated that any remaining land was surplus, and therefore was to be opened to "secure homes for actual settlers”  government was suppose to pay the tribe for this surplus land and the settlers were allowed to take the land as homesteads 29

30. Changes in the Process Under a 1900 Amendment to the Act, Whites were allowed to buy the surplus and the federal government acted as the agent for the Indians in the sale  1906 amendment authorized granting fee simple title to any Indian immediately if the Indian was deemed to be "competent and capable of managing his or her own affairs."  BIA was under considerable pressure to issue such titles, so the amount of fee simple land created on reservations increased dramatically  One reason for this was that once land was fee simple, it was no longer considered to be "Indian Land", so whites could gain title without dealing with the BIA, by buying it from the Indian with fee simple rights 30

31. Allotment Surplus 31 1911

32. 32

33. Effects of the Dawes Act  If the objective of the allotment act was to privatize land, then it was clearly a success.  If the objective was to increase land ownership by individual Indians in order to encourage them to engage in ag, it was a disaster. as the 25 years for land being held in trust ended, the land became fee simple, and the Indians could sell it to whites, often those who had been leasing it.  estimated 60 percent of the allotted lands ended up being transferred to whites. 33

34. Decline in Indian Farming The Dawes Act had a negative effect on Indian farming, as it ended their communal holding of property (with crop land often being privately owned by families or clans) by which they had ensured that everyone had a home and a place in the tribe. 34

35. Transfer of Indian Lands In 1881 there were 155,632,312 acres allocated to tribes and to individual Indians on reservations  1890 the total was down to 104,314,349  by 1933 it reached 69,588,421  in 1962 there were 50,557,234, less than a third of what it had been 80 years earlier Since then Indian lands have stabilized and even increased through purchases.  some new reservations have been created 35

36. Indian Reservations, 1875 36

37. Indian Reservations, 1890 37

38. Indian Reservations, 1930 38

39. Wealth Transfer through The Political Process  The Dawes Act and its amendments, let non-Indian interests capture wealth originally allocated to the Indians as reservation lands result reflects special interest politics  reservations were established at precisely the same time that western land values for white settlers were rising  Whites were excluded from access, and they had incentives to find a way to obtain access  Dawes Act and its amendments did that, and the result was one of the largest real estate transfers through the political process in American history. 39

40. Political Constituencies Alston and Spiller found that the senators and congressmen on the influential committees responsible for these acts were self-selected  did not represent the interest of Indians. Indians had no political clout  could not vote, and they had no money to offer  already defeated so threats of fighting and other sorts of disruption were not really credible (there were occasional small scale revolts, such as Wounded Knee, but the Indians simply had no way of influencing policy). 40

41. Constituencies, Continued  The most powerful constituencies for the congressmen in control of Indian policy were those who wanted access to Indian lands. Even those whites who believed that they were advocates for the Indians, such as the Friends of the Indian, mistakenly believed that the allotment process was going to be good for Indians  those who wanted to capture Indian lands through the political process managed to get the act structured in such a way that they would be able to do so, perhaps to the surprise of those who considered themselves to be advocates for Indians. 41

42. BIA Interests Unlike regulatory bureaucracies that tend to get captured by the Industry they regulate, the BIA was not captured by the Indians.  Suppose to serve the Indians' interests, but in reality they permitted almost no opportunities for the Indians to influence bureau policy, and did not systematically pursue the interests of the Indians. might ask why the bureaucracy would not have resisted the transfer of Indian lands to whites, since it meant that the bureaucracy’s domain was being reduced, but in fact, the impact of allotment on the BIA was quite positive  BIA‘s budget increased dramatically as did employment by the bureau. 42

43. BIA Interests, Continued If the lands had simply been given directly to the Indians or to the whites the role of the bureau would have been somewhat limited, although the actually allocation process would have had to have been supervised to make sure that it complied with Congressional mandates  bureau was given the task of surveying the reservations, assigning parcels to individual Indians, and then teaching the Indians how to become independent farmers  Many in the bureau and in Congress contended that the bureau would ultimately disappear because of the allotment process and the resulting self sufficiency of the Indians, but the opposite actually occurred 43

44. BIA, Continued BIA continued to grow because allotment created a lot of work for the bureau and justified its growth  initial act required that allotted lands be held in trust for 25 years, so the bureau had a major administrative job to do.  1891 amendment allowed the lease of allotted lands, and as trustees the bureaus employees were responsible for determining the procedures for such transfers as well as the terms of leases, and so on.  Not until 1906 that actual fee simple rights could be granted, but then the bureau had to determine if the Indian was "competent and capable of managing his or her own affairs.” Each amendment meant more duties for the bureau. 44

45. BIA Continued Other duties increased too  as the Indians' incentives and abilities to pursue economic activities such as ag declined with the transfer of land to whites, Indians actually became more and more dependent on the Federal government for food, clothing, housing, and so on  Between the allotment process and the other policies of the bureau a very large population of dependents was created that they had to care for and supervise (an issue to be considered later) 45

46. Hypothesis 2 Passage of the Indian Reorganization Act (IRA) in 1934 provided the life-sustaining rationale for the BIA.  The act set up a process for establishing tribal governments and gave the BIA authority over this process.  It also ended the allotment process and froze most allotments for which fee patents had not been issued into perpetual trusteeship. 46

47. Indian Reorganization Act of 1934 and the End of Allotment If allotment had continued, the reservations and BIA would have ultimately become irrelevant as land was transferred to whites  Allotment was ended by Congress in 1934, preserved what was still a large system of reservations and a large number of dependents  One reason: the best of the Indian lands had already been allotted  Another: the value of land had fallen substantially (Great Depression), and ag prices had dropped dramatically, unemployment was very high, and few whites were interested in gaining access to more Indian land 47

48. Indian Reorganization Act, Continued Froze allotments for which fee simple had not been granted into perpetual trusteeship.  BIA administers these trusts (discussed in detail later) Mandated that tribal governments be established on the reservations.  would administer the tribal lands that remained unalloted, but the bureau was to be responsible for setting up and advising these governments. The major lobbying effort to end allotment came from the BIA which also sought a larger budget in order for it to accomplish its new duties, duties that it lobbied to get 48

49. Why Didn’t Whites Oppose IRA? If, as argued above, the Allotment Act gave non- Indians access to Indian lands, then why did non- Indian citizens and their representatives not oppose the IRA?  After all, the act halted the issuance of fee-simple title making it impossible for settlers to purchase land directly from Indians.  McChesney explains that white opposition to the IRA did not materialize because "the value of Western land fell with the steep de­cline in livestock and agricultural prices [in the 1920s]" 49

50. Was Allotment a Success? Measured from the Indians' perspective re­garding the millions of acres transferred to non-Indians, the allotment most certainly was a disaster. Viewed from the perspective of non-Indian settlers and Washington bureaucrats, allotment was a resound­ing success. Non-Indians ended up owning or leasing substantial amounts of many reservations, and the BIA flourished, by operating first as a real estate agent for Indian lands and then as the trustee overseeing Indian land man­ agement. 50

51. Allotment’s Legacy As Carlson suggests, "the general program of allotting land in severality was bent, pulled, and shaped by non-Indian economic interests,"and as McChesney explains, "Every change in the sequence of allotment events from 1887 to 1934 led to an increase in the involvement of the federal government in Indian affairs and each change can be explained by its ability to generate more work for the Indian bureaucracy". 51

52. Other Transfers: Cherokee Outlet Indian land did not necessarily have to be allotted to be transferred.  Anderson describes the political process leading to the opening of the Cherokee Outlet for instance. Provides another indication that the special interest theory of government explains Indian policy pretty well, and that for much of its history, the Indians themselves had virtually no influence over that policy  Under allotment those who did obtain fee simple land were able to sell it and get something for it  Indians got very little from surplus lands homesteaded or sold by the government for the tribes (BIA trust management is discussed later), or for land that was simply taken (e.g., Cherokee Outlet) 52

53. Cherokee Outlet It was a 60 mile wide strip of land south of the Oklahoma-Kansas border between the 96 th and 100 th meridians.  It was about 225 miles long and in 1891 contained 8,144,682.91 acres (1836).  The US negotiated a new treaty (due to Cherokee Nation’s alliance with the Confederacy) in 1866. Allowed the government to dispose of the land in the Cherokee Outlet: “The United States may settle friendly Indians in any part of the Cherokee country west of 96°… [sale proceeds] to be paid for to the Cherokee Nation.” 53

54. Cherokee Strip Livestock Association The CSLA offered $30 million for the outright purchase of the outlet, but the Cherokees refused (1889). Later the government paid $8.6 million for the Outlet (1991). 54

55. Reductions in the Hidatsa Lands 55

56. Hidatsa Reservation Today 56

57. Ute Territory Before Reservations Were Created 57

58. Ute Reservation, 1868 58

59. Ute Reservation, 1873 59

60. Current Ute Reservations 60

61. Indians Subject to Congressional and BIA Supervision The result of Indian policy as it developed through the last couple of decades of the 19th century and the first 3 or 4 decades of the 20th century, was not the establishment of self-reliant and self-determined Indians, as so many advocates claimed it would be.  Instead, reservation Indians found themselves becoming increasingly dependent wards of the state entangled in what Anderson describes as a “bureaucratic quagmire” 61

62. Apache Receiving Cloth Commodities 62

63. Apache Women Receiving Commodities 63

64. Geronimo and Family, Fort Sill, OK, Pumpkin Patch 64

65. Indian Claims Commission In 1946, the federal government established the Indian Claims Commission as an official venue for certain tribes to seek monetary settlements for land loss and other wrongs dating back to original treaty violations.  Over 370 claims were filed by eligible tribes over the 32 years of the commission's existence, mostly concerning land.  By accepting the government's monetary offer, the aggrieved tribe abdicated any right to raise their claim again in the future, and on occasion gave up their federal status as a tribe after accepting compensation.

66. Awards Awarding money based upon a net acreage figure of lost lands times the monetary market value of an acre at the time of taking.  In a few instances, by way of settlement acts, tribes gained some monetary funds to buy acreage (as with the Penobscot and Passamoddy of Maine and the Catawba of the Carolinas).  Special acts on occasion did restore some acreage as with the Havasupai at the Grand Canyon. Some significant monetary awards were made, but Native nations soon learned that filing a claim did not guarantee compensation and that the federal policy did not actually support the reinstatement of lost land to Native title.

67. Termination In the 1950s, the federal policy of tribal termination presented a further threat to the lands of Native nations as the federal government attempted to eliminate its trustee role.  House Concurrent Resolution 108 of 1953 identified tribes deemed immediately ca­pable of doing without federal services.  These included the Klamath, Menominee, and those within certain states such as California, Texas, Florida, and New York.  Legislation over the next two decades terminated many of these tribes as federally recognized sovereigns, remov­ing tribal land protections and dividing parcels among tribal members.  Much of such land ended up in non-Indian possession.  Over 1 million acres of tribal land were lost due to termination.

68. Passamaquoddy Tribe During the civil rights era, the drive for self-determination renewed Native efforts to regain control of historic tribal lands.  In 1972, the Passamaquoddy Tribe and the Penobscot Indian Nation sued for $25 billion and 12.5 million acres in Maine and won a landmark ruling from the U.S. District Court. An ensuing monetary settlement was reached in 1980 with the U.S. government. The settlement resulted in no direct return of land but provided monetary compensation of $81.5 million. More than $54 million of this was set aside as a fund for land acquisition.

69. Indian Lands Today The long, chaotic history of settlement, federal policy, court cases, and legislation relating to Indian lands has created an exceptionally complicated property rights legacy.  Each Na­tive nation has a unique land situation based on the particular circumstances of its past. Some reservations were heavily allotted, others not at all.  Some tribal governments have jurisdiction over large and contiguous tracts of land, others contend with reservations heavily divided between Indian and non-Indian interests, and still others have no specific land base.