Allotment and Assimilation (1871-1928) III::

Federal Trusteeship

At the end of the day the Dawes Act did not succeed in creating a citizen-equal of the Indian as the Indian was still treated as inferior. Moreover, the United States v. Kagama (1886) legal case declared US plenary power over "wards of the nation" and expressed approval over the concept of guardianship. As wards, Indian tribes were dependent upon the US government, and the government had a duty to 'protect' them.

When Indian interests conflicted with federal interests, tribal reliance on trust protection proved very fragile indeed. Such sweeping powers of the federal trustee over Indian affairs made it possible for massive, non-consensual, transfer of Indian land to non-Indian ownership - all in the name of the federal government fulfilling its trust responsibilities. Witness the Supreme Court's 1903 Lone Wolf decision, which rejected the idea that Indian interest in common lands lay within the protection of the Fifth Amendment, on the grounds that, in the exercise of its "full administrative power", government could dispose of tribal property as and when it saw fit, and "in the interests of the Indians". Such a decision contradicted earlier judicial affirmations of Indian occupation and property rights, as expressed in, for example, M'Intosh and Worcester. Such a situation has led some scholars to to conclude that such exclusive power over Indian affairs makes federal government ultimately exempt from judicial review.

By the end of the nineteenth century, therefore, "the Indian found himself not an equal under the law but an exception in an extra-constitutional status that was not defined by civil rights, due process, and judicial review, but by wardship, plenary power, and the political question doctrine" (Shattuck and Norgren:102).¹

Notes::

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