Aboriginal and Indigenous Peoples, Treatment of

Assimilation and Accommodation in United States Native American Policy

The United States, among all liberal-democratic settler states, arguably has the most widely polarized pattern of countervailing policies concerning the legal status of aboriginal societies. During much of the history of U.S. Indian policy, far-reaching accommodation of Indian sovereignty has largely gone hand in hand with a wide range of policies aimed at legal assimilation, or “termination.” The complex dynamic of these trends includes Indian interests in self-determination and a conservative liberalism insistent on legal equality, constitutional uniformity, and “color-blind” integration of Indians into the state.

Nevertheless, one cannot reduce the legal manifes-tations of these divergent interests to an unambiguous contest of policy approaches. To some extent, the U.S. government recognized Indian autonomy and inherent legal authority until quite recently as provisional. It was a source of legal difference to be tolerated and minimized until, it was supposed, the full force of assimilation efforts were to take effect and eliminate the special status of tribal governments. If Indian sovereignty were ever to intrude too far into U.S. government interests, Congress could diminish or eliminate it. Only in the last quarter of the twentieth century did Native American and indigenous assertions of self-determination become more insistent and effective, resulting in new forms of tribal sovereignty and legal relationships with state and federal governments.

Comparing the ways that the United States treated the Indians in their midst with the approach of the Spanish, Alexis de Tocqueville, in Democracy in America (1835), settled on law as the defining feature of U.S. expropriation of Indian sovereignty and territory. The Spanish, he observed, plundered America, “pillage[d] the New World like a town taken by assault, without discrimination and without pity,” and yet also without achieving their goal of annihilation, while the Americans went further in eliminating Indians with the tools of forms and legality. “One cannot destroy men while being more respectful of the laws of humanity,” he concluded (2000: 325).

Nowhere is this point better illustrated than in the history of Indian removal, a nineteenth-century policy aimed at relocating tribes occupying desirable lands east of the Mississippi River to territories west of the river, principally in Oklahoma. The Cherokee Nation, seeking to contest state laws aimed at obstructing Indian resistance to the Removal Act (1830), took its case to the U.S. Supreme Court. Chief Justice John Marshall, in Cherokee Nation v. Georgia (30 U.S. 1, 1831), found that the Cherokees constituted

Marshall later added, in Worcester v. Georgia (31 U.S. 515, 1832), that the Cherokee Nation was “a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force” (1832: 561). In Worcester, Marshall elaborated on his view of Indian sovereignty, finding that Native American tribes did not have the same constitutional status as the United States; one could characterize them as “domestic dependent nations” with rights of self-determination that the government could diminish by treaty.

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