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September 01, 2017

Introduction: New Horizons in Indian Country

by Kirke Kickingbird

The spring 2017 meeting of the Section of Civil Rights and Social Justice was held in St. Louis in late April. It was a joint meeting with the Section of State and Local Government, the Public Contract Law Section, and the Forum on Affordable Housing.

St. Louis has always been a unique site at the conjunction of the Mississippi, Ohio, and Missouri Rivers. Around the year 800 or 900 across the Mississippi in Illinois, a thriving Native American Mississippian Culture city of 50,000 inhabitants existed. This community with residential and temple mounds sprawled across both sides of the river and encompassed the present site of St. Louis as well. The Illinois site is known as Cahokia, named after a tribe that lived in the area but came to the area much later than its mound builders. The city had 120,000 earth mounds that resembled the stone architecture north of Mexico City.

It was events a thousand years later that have a present impact. Cahokia had been a commercial center because of the rivers. It remained a commercial center when President Jefferson bought the Louisiana Territory from France.

Cahokia’s mounds on the east bank of the Mississippi were the significant architectural feature long ago. The Gateway Arch on the west bank in downtown St. Louis is the significant architectural feature today. The Arch symbolizes St. Louis as the Gateway to the West.

The economic growth of St. Louis began with its founding as a fur trading center in 1763. Much of the initial trade was with the Osage Nation. The French traders Laclede and Chouteau reached out to tribes farther up the Missouri and had a monopoly on the fur trade with Santa Fe, New Mexico. The trading posts of the Chouteau family first reached south into northeast Oklahoma and then into south central Oklahoma close to the Red River.

The Louisiana Purchase Treaty bought what Spain and France possessed in the Louisiana Territory. Article VI of the treaty makes clear that it was essentially a quitclaim deed because ownership issues had to be settled between the Indian tribes and the United States.

Article: VI The United States promise to execute Such treaties and articles as may have been agreed between Spain and the tribes and nations of Indians until by mutual consent of the United States and the said tribes or nations other Suitable articles Shall have been agreed upon.

This was consistent with the long-standing treaty relationships established between the tribes and Britain, France, Spain, and the United States. Prior to the Louisiana Purchase, the United States had signed about two dozen Indian treaties. By 1871, the United States had signed over 400 treaties and agreements with tribal governments.

The expanding United States population required new land. The only way to achieve this was for the United States to purchase land from the Indian nations. Popular wisdom has the United States giving land to tribes in the treaties. But in reality, the tribes owned the land and sold it to the United States.

The treaty opening the Gateway to the West had a variety of consequences. Growing demand for more land by the white population east of the Mississippi resulted in President Jackson’s Indian Removal Act in 1831. Congressman Davy Crockett opposed the policy on the floor of Congress and effectively ended his political career by speaking against the Indian Removal Act and in support of the Indian nations. The Louisiana Territory provided land to which the tribes could be removed. To acquire land on which to remove the eastern tribes, the United States had to negotiate treaties with the tribes that held the lands in the Louisiana Territory.

The theory under which Indian lands were held was that the legal title was held by the United States and the beneficial title was held by the tribes. This structure was designed to prevent any claim to the lands by any foreign power such as Britain, Spain, or France. This arrangement gave rise to the “guardian-ward” relationship between the United States and Indian tribes.

At first, many of the treaties dealt with boundaries and trade relationships. The purchase of the tribal lands required payments, often in goods and services, and the United States kept records about tribal membership. The United States’ goal was to limit its liabilities for payments. The practice would also come to influence tribal concepts about membership status and play a role in current tribal membership controversies.

In early U.S.-tribal history, the Indian Country was such a separate territory that a passport was required of U.S. citizens before entry. Increased interaction between tribes and the United States required the treaties to address the issue of jurisdiction over civil and criminal matters. Tribes found their exclusive jurisdiction of Indian Country whittled away over the years.

This issue of Human Rights magazine encompasses a variety of issues that arose out of the opening of the Gateway to the West. This opening was a pathway that showed the impact of presidential policies on Indian nations. Highlights of those policies from 1803 to the present include Peace and Friendship, Removal, Assimilation, Reservations, Allotment, Reorganization, Termination, and the current Self-Determination. Our article on disenrollment shows the modern-day fallout out of membership disputes influenced in part by the early treaty payments. The article on Public Law 280 demonstrates the continued problems of jurisdiction in Indian Country, including issues related to violence against women. The boundary issues of early treaties still exist with the proximate impact of pipelines on the Standing Rock reservation. Construction in Indian Country also has an impact on maintenance of culture and preservation of artifacts. Just as travelers once plunged into the unknown Oregon Country from St. Louis, the wild and untamed Alaskan territory proves a challenge today. And throughout the struggles in the past and the present, we need heroes and champions to speak on behalf of the Indian nations and fight for the honor of the United States and justice for Indian nations. This issue of our magazine speaks not just to ancient history, but also to the present realities confronting Indian nations.

Kirke Kickingbird, of the Kiowa Tribe, is the first Native American to chair the ABA Section of Civil Rights and Social Justice and was the first elected to the ABA Board of Governors. He is a former president of the Native American Bar Association and past board chair of Oklahoma Indian Legal Services. He has devoted his entire career to improving the lives of Native American people.

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