*This paper has been prepared with the insights and advice of Ann Catherine Boyce, Ada Deer, Michael Green, Rayna Green, Yvonne Knight, Oren Lyons, Alan Parker, David Warren, and Petersen Zah. Gratitude is expressed to them for their ideas, suggestions, and criticisms. All shortcomings or errors are my own.
2See, for instance, E.B. Leacock and N.O. Lurie (eds.) North American Indians in Historical Perspective (New York: Random House, 1971); Wendell H. Oswalt, This Land Was Theirs (New York: John Wiley, 1978); or Robert F. Spencer. Jesse D. Jennings, et al., The Native Americans (New York: Harper & Row, 1978).
14For a full examination of the effects of Old World diseases on American Indians, see Alfred W. Crosby, Jr., The Colombian Exchange: Biological and Cultural Consequences of 1492. (Westport, Conn.: Greenwood Publishing Co., 1972). Indians continue to have higher incidences of certain diseases than the general population. According to Indian Health Trends and Services (1974 Edition, U.S. Department of Health, Education and Welfare, Public Health Service, Health Services Administration, Indian Health Service, Division of Resource Coordination, Office of Program Statistics, DHEW Publication No. (HSA) 74-12,009, pp. 13-48), diseases that are more prevalent for Indians include tuberculosis (a rate of 157.4 cases per 1,000 population for Indians compared with a rate of 17 cases per 1,000 population for the U.S. population as a whole), cirrhosis of the liver, otitis media, and influenza. It is also interesting to note the early American theory that God sent smallpox and other diseases to clear out Indians. For a fuller discussion, see Roy Harvey Pearce, Savagism and Civilization: A Study of the Indian and the American Mind (Baltimore: The Johns Hopkins University Press, 1965), pp. 1-35.
15E. Wagner Stearn and Allen E. Stearn, The Effect of Smallpox on the Destiny of the Amerindian (Boston: Bruce Humphries, 1945), pp. 44-45; also, Robert M. Utley and Wilcomb E. Washburn, The Indian Wars (New York: Simon and Schuester, 1977).
17For a thorough discussion of the methodology of Native American demographic estimation, see Henry Dobyns. "Estimating Aboriginal American Population: An Appraisal of Techniques with a New Hemispheric Estimate," Current Anthropology, vol. 7 (1966): 395-416; also, Wilbur R. Jacobs, "The Tip of the Iceberg: Pre-Columbian Indian Demography and Some Implications for Revisionism," William and Mary Quarterly, 31 (1974): 123-32.
25Act of July 22, 1790, I Stat. 137, 25 U.S.C.A. 177. The Final Form of the Non-Intercourse Act is found in the Act of June 30, 1834, c/61, #12, 4 Stat. 730. One might speculate that the newly created federal government used this act as a means of asserting its own sovereignty, paralleling federal, as opposed to state, authority with the already established sovereignty of Indian nations.
30Congress, in an obscure rider to the Indian Appropriations Bill (U.S. Statutes at Large, 16:566, March 3, 1871), outlawed further treaty-making with Indian tribes. Thereafter, reservations were created by executive order; see "Tribal Property Interests in Executive Order Reservations: A Compensable Indian Right," Yale Law Review, 69 (1960): 627-42.
39For a discussion of some of the problems of conception and implementation of the Indian Reorganization Act, see Angie Debo, A History of the Indians of the United States (Norman: University of Oklahoma Press, 1970), pp. 339-42.
44Barsh and Henderson in The Road: Indian Tribes and Political Liberty note that the Indian Reorganization Act policy of repurchasing allotted reservation lands was adopted only a year after the twentieth century low point in the price of U.S. farmland (1933) (p. 289).
45Of the larger reservations, only the Menominee and the Klamath were actually terminated. For a discussion of the history of the policy in the former case, see Deborah Shames (ed.), Freedom with Reservation (Madison, Wisc.: National Committee to Save the Menominee People and Forests, 1972).
47Some tribes or confederacies (e.g., Hopi and Iroquois) have on occasion demonstrated their conviction that they retain some of the prerogatives of external sovereignty through acts such as separate declaration of war on the Axis powers in 1941 and the issuance of tribal passports for certain types of international travel. The latter have, in recent years, been accepted by at least the European nations.
71Barsh and Henderson, p. 291; see also Russel L. Barsh and James Y. Henderson, "The Betrayal: Oliphant v. Suquamish Indian Tribe and the Hunting of the Snark," Minnesota Law Review, 63 (4) (April 1979): 609-37.
85It should also be noted that under a 1966 amendment to the Judicial Code, tribes need no longer depend on the federal government to represent them in court, and may file suit themselves when the United States refuses to fulfill its obligations as trustee.
861970 Census of Population Subject Reports: American Indians (Washington, D.C.: U.S. Department of Commerce, 1973). Many have suggested that this figure is an undercount. If so, the 1980 census should record a considerably larger aggregate population.
90One might conclude that the trend continues with the popularity of Ruth Beebe Hill's Hanta Yo (Garden City, N.Y.: Doubleday, 1979); though generally panned by knowledgeable critics from an anthropological or tribal perspective, or both, the book has attracted a wide readership among the uninformed public.
92Joan Ablon, "Relocated American Indians in the San Francisco Bay Area: Social Interaction and Indian Identity," Human Organization, 23 (1964): 362-71; and for Denver, Theodore Graves and Martin Van Arsdale, "Values, Expectations and Relocation," Human Organization, 25 (1966): 300, 307; also Robert Weppener, "Urban Economic Opportunities: The Example of Denver," in The American Indian in Urban Society, Waddell and Watson (eds.).
98U.S. Statutes at Large, 85:688-92, 1971, For an excellent critique of the Alaska Native Claims Settlement Act, see joint Federal-State Laud Use Planning Commission for Alaska, Policy Recommendations (Anchorage: 1979).
101See Oneida Indian Nation v. County of Oneida, 414 U.S. 661 (1974); this case established that federal courts could rule on violations of the 1790 Non-Intercourse Act, and opened the door to subsequent litigation.
104For an excellent summary article, see M.C. Nelson, The Winters Doctrine: 70 Years of Application of "Reserved" Water Rights to Indian Reservation, Arid Lands Research Paper no. 9, (Tucson: University of Arizona Press, 1977), NTIS PB U.S. 564 (1908).
107Larry Light, "Backlash in Congress Seen as Indians Push Claims," Congressional Quarterly Weekly Report, Dec. 2, 1978, pp. 3385-88; eleven bills were introduced in the 95th Congress to restrict Indian hunting, fishing, and land claims rights, including HR 13329.
109Barsh and Henderson, in The Road, make an extremely interesting observation pertinent to this point: "The federal government did not, historically, create the sovereignty of tribes. Acts of Congress limited, modified, and channelled tribal powers, usually without tribal consent. The termination of what Congress created should therefore result in an increase in tribal self-governing powers. Instead, Congress has acted as if the termination of tribal dependency results in the dissolution rather than the emancipation of the tribes" (p. 285).
110The text goes something like this: Two men were coming down the pier after a day of crab fishing. The White man had a lid on his crab bucket, but the Indian didn't. Said the White man to the Indian: How come all your crabs don't get out?" Replied the Indian, "They're Indian crabs! As soon as one starts to crawl out, the others pull him back down."
111Lawrence Rosen, Foreword to The American Indain and The Law., p. 1. Thirty-eight percent of Indians identifying themselves in the 1970 census had incomes below the poverty line; in the poorest areas of Arizona and Utah, this figure reaches upwards of 65 percent. Death from tuberculosis, dysentery, and accidents occurs four times more frequently among Indians than among the rest of the population. Employment for reservation men, averaging 18 percent nationally, climbed well above 30 percent in many areas.
112Office of Special Concerns, Office of the Assistant Secretary for Planning and Evaluation, Department of Health, Education and Welfare, A Study of Selected Socio-Economic Characteristics of Ethnic Minorities Based on the 1970 Census, vol. 3: American Indians, HEW Pub. No. (OS) 75-122, July 1974. In educational achievement, 34 percent of Indian males were high school graduates (compared to 54 percent of all U.S. males); percentages were 1 point higher, respectively, for Indian females and all females. In income levels, 64 percent of rural Indian men earned less than $4000 per year; 46 percent of urban Indian men earned less than $4000 per year; only 31 percent of all U.S. men earned less than $4000 per year.
113Testimony of Margaret S. Treuer before Subcommittee on Rural Housing and Development, Committee on Banking, Housing and Urban Affairs, U.S. Senate, April 1 1980, p. 3. A 1970 Census Bureau report on housing characteristics indicated that 62.4 percent of the housing units on Indian reservations were substandard, compared to 12.9 percent of the total U.S. population. In March 1978 the General Accounting Office issued a report on Indian housing that estimated that fully 60 percent of all Indian families were living in substandard housing.