7 to protect them and their assets. On the reservation, Indians were to be civilized, Christianized, and provided with the implements and skills of farmers. It was thought that eventually tribes would cease to exist as separate entities and their members would be absorbed into the dominant culture. In the meantime, the federal government dealt with tribes much as it did with sovereign nations. The treaty period ended in 1871 when Congress passed a law prohibiting further treaties with Indian tribes.9/ 2. Assimilation: The Allotment Act In 1887, Congress passed the General Allotment Act, also known as the Dawes Act, which provided for reservations to be broken up into farm size allotments and conveyed to individual Indians.10/ Land left over after all Indians had received allotments was opened to settlement by whites. Congress intended within a period of years to abolish the reservation system and the special obligations owed to Indian tribes. Federal policy therefore "shifted from that of removal, confinement, and isolation of the Indians on reservations to a policy of civilization' and assimilation of the Indian into the mainstream of American life."11/ The assimilation policy was largely a failure; on the whole it was also a disaster for Indians. It did not put an end to reservations or to tribal governments but it did cost the Indian people two-thirds of their land. From 1887, when the General Allotment Act was passed, to 1934, when the allotment process was halted by federal statute, Indian land was reduced from 140 million acres to 50 million acres. 9/ 10/ 11/ Appropriation Act of May 3, 1871, Ch. 120, Section 1, 16 Stat. 566, (codified at 25 U.S.C. Section 71 (1970)). Not all allotments were made under the General "Evolution of Jurisdiction of Indian in Indian 3. - 8 Reorganization: The Indian Reorganization In the Indian Reorganization Act of 1934, also known as the Wheeler-Howard Act, Congress abandoned the policy of assimilation, put an end to the allotment process, and attempted to re-invigorate the reservation system by fostering self-government. The Act was intended to preserve tribal institutions and the Indian land base. The stated purpose of the Act was to "conserve and develop Indian lands and resources" and "to extend to Indians the right to form business and other organizations" and "rights of home rule." The IRA represented a return to recognition of the special relationship between Indians and the federal government and the concomitant obligation to protect and assist Indians until such time as they should be capable of either effective integration into the dominant culture or successful self-government. The reorganization period "saw the first official (modern] awareness of the need to preserve and develop tribal structure, rather than destroy it."12/ In the early 1950's, Congress briefly returned to the policy of ending the special relationship between the federal government and Indians. In a series of termination acts, Congress abolished several Indian reservations. It also provided certain designated states with a considerable measure of civil and criminal jurisdiction over Indian reservations.13/ Other states were authorized to assume this jurisdiction by constitutional amendment or statute. Congress declared it to be the policy of the United States Government to make Indians as rapidly as possible "subject to the same laws and entitled to the same privileges and responsibilities as are applicable to other citizens of the United States, to end their status of wards of the United States and to grant them all the rights and prerogatives pertaining to American citizenship." 12/ Kennedy, "Introduction, Indian Law Forum," 22 Kansas Law Review 337, 338 (1974). 13/ P.L. 83-280, Act of August 15, 1953, 67 Stat. 588, codified in part, as amended, 18 U.S.C. Section 1162 (1970), 28 U.S.C. Section 1360 (1970). 14/ House Concurrent Resolution 108, 93d Cong., 67 Stat. The termination policy of the 1950's like the ansimilation policy of the late 19th century has been widely discredited. Termination has been considered a failure with the two largest tribes whose reservations were abolished by acts of Congress: Congress has recently restored the Menominee tribe in Wisconsin15/ and there is a movement to seek restoration for the Klamath reservation in Oregon.16/ In addition, legislation has been introduced in the current session of Congress which would repeal Public Law 280, the termination policy law under which states exercise jurisdiction over Indian reservations. The policy of termination was abandoned in the late 1950's and once again policy shifted back toward recognition of the need for special protection of Indians by the federal government, the desirability of preserving (or establishing) viable tribal governments and the value of maintaining and protecting Indian culture and traditions. Current policy is one of "self-determination without termination." President Nixon, in his address to Congress on July 8, 1970, described the new policy as follows: "This, then, must be the goal of any new must make it clear that Indians can become 15/ Menominee Restoration Act, Act of December 22, 1973, P.L. 93-197, 87 Stat. 770. 16/ 17/ See S. 1328. R. Nixon, Message from the President, H. Doc. No. 363, 91st Cong., 2nd Sess., Section 10797 (1970). Congress adopted the self-determination policy urged "The Congress declares its commitment to the The challenge inherent in the policy of self-determination has caused the Indian people tc organize themselves in order to obtain a greater role in the management of their own affairs. They have also become more aggressive in demanding that the federal government protect their land, natural resources, and other special rights to which they are entitled under law. 18/ Act of January 4, 1975, P.L. 93-638, 88 Stat. 2203, codified at 25 U.S.C. Section 450. 19/ P.L. 93-638, Section 3(b). The task force initiated its review by examining the way the Department handles litigation involving the federal government's trust responsibility to protect Indian land and natural resources. This review resulted in recommendations for certain organizational and policy changes within the Land and Natural Resources Division. These recommendations were accepted by Deputy Attorney General Silberman in November, 1974, and final implementation was directed by Attorney General Levi in April, 1975. The task force's findings and recommendations on this subject are summarized briefly below. The original option memorandum is attached at Tab A. There are reserved for federally recognized tribes some 55 million acres of land in the United States. This land is held in trust by the United States for the benefit of Indian people. As fiduciary for the Indian people, the federal government is charged with protecting and preserving Indian land and natural resources and other related rights deriving from treaty, federal statute, or case law. The trust responsibility has been delegated to the Department of Interior and Justice. In no other area is the government charged with the fiduciary duty of representing the private interests of a particular group. In all other areas, the government is charged with advancing the national public interest. In representing Indian tribes, the Justice Department often finds itself in an inherent conflict of interest. It must also represent numerous federal agencies, notably the Bureau of Reclamation and the Corps of Engineers, whose interests are often adverse to those of Indian tribes. The conflict of interest. problem has been described as follows: "The United States Government acts as a trustee |