The Formative Years (1789-1871) II::

Mid-Century Challenges to Original Principles

By the mid-nineteenth century, Indians were being urged to move, and often the military was sent after them. Some were isolated to reservations created to 'protect' them from American migrants. Indians were increasingly seen to be 'getting in the way' of the westward advance of Euroamerican civilisation.

In Court, judges yielded to a more restrictive view on Indian occupancy title and tribal rights to govern themselves. They increasingly approved of federal regulation on domestic tribal concerns. During what turned out to be a confusing time, the Court vacillated between asserting the treaty rights of tribes, and repudiating these rights and the national character of tribal governments.

"In the legal opinions of the Supreme Court in the mid and late nineteenth century, there was confusion as jurists clung to the ideal of a nation of laws, while trying to accommodate expansionist nationalist interests" (Shattuck & Norgren 1991:55).¹

In time the Court began talking about the plenary power of Congress in Indian affairs.

Notes::

• 1 - Petra T. Shattuck and Jill Norgren. 1991. Partial Justice: Federal Indian Law in a Liberal Constitutional System. New York: Berg.