The New Trail of Tears. Naomi Schaefer Riley
to take their fate into their own hands was striking – and it’s a sentiment rarely heard among politicians today.
The wording of the Dawes Act continued:
That upon the completion of said allotments and the patenting of the lands to said allottees, each and every number of the respective bands or tribes of Indians to whom allotments have been made shall have the benefit of and be subject to the laws, both civil and criminal, of the State or Territory in which they may reside; and no Territory shall pass or enforce any law denying any such Indian within its jurisdiction the equal protection of the law. And every Indian born within the territorial limits of the United States to whom allotments shall have been made under the provisions of this act, or under any law or treaty, and every Indian born within the territorial limits of the United States who has voluntarily taken up, within said limits, his residence separate and apart from any tribe of Indians therein, and has adopted the habits of civilized life, is hereby declared to be a citizen of the United States, and is entitled to all the rights, privileges, and immunities of such citizens, whether said Indian has been or not, by birth or otherwise, a member of any tribe of Indians within the territorial limits of the United States without in any manner affecting the right of any such Indian to tribal or other property.14
The way the Dawes Act was carried out, though, was not as Dawes or his contemporaries had promised, nor were its effects what they had expected. In some cases, Indians who didn’t choose a parcel of land were jailed. Whites often got the best land and sometimes the only land that was adjacent to water sources. Some of the land had been surveyed badly, and so its ownership was unclear. By the time the policy ended in 1934, land under Indian ownership had shrunk by 65 percent.15
In 1934, the Indian Reorganization Act placed all the land not held fully by individuals into a “trust.” Sometimes known as the Indian New Deal, the Indian Reorganization Act was intended to stem the flow of land out of Indian hands. Land that hadn’t already been transferred into fee-simple ownership – that is, land that wasn’t owned outright – was put into trust by the federal government. From that point on, the land couldn’t be sold to non-Indians, but even land transfers among Indians or between Indians and the tribal government were heavily monitored by the federal government. In fact, as Anderson points out, bureaucratic interests as much as anything have historically driven the U.S. government’s Indian policy.16
The effects of the trust have been disastrous for economic development on Indian lands. First, because most trust land is held communally, individuals don’t want to invest in it, and they can’t use it as collateral either. As John Koppisch, a writer at Forbes, explains: “This leads to what economists call the tragedy of the commons: If everyone owns the land, no one does. So the result is substandard housing and the barren, rundown look that comes from a lack of investment, overuse, and environmental degradation. It’s a look that’s common worldwide, wherever secure property rights are lacking – much of Africa and South America, inner city housing projects and rent-controlled apartment buildings in the U.S., Indian reservations.”17
As one tribal leader describing a similar situation in Canada explained to Koppisch, “Markets haven’t been allowed to operate in reserve lands. We’ve been legislated out of the economy. When you don’t have individual property rights, you can’t build, you can’t be bonded, you can’t pass on wealth. A lot of small businesses never get started because people can’t leverage property [to raise funds].”18
Even if an individual technically holds the land, the fact that it’s trust land means that the federal government has a say in how it’s used. Which makes it significantly less valuable. A 1992 study by Terry Anderson and Dean Lueck found that agricultural productivity on individual trust lands was 30 to 40 percent less, and on tribal trust lands 80 to 90 percent less, than on fee-simple lands on a reservation, where a given title rests entirely with an individual.19
Although tribes have been granted somewhat more power over decisions regarding their land in recent years, “at least four federal agencies are involved in the execution of any energy lease on tribal lands. . . . Not only does the BIA’s trust authority raise the cost of energy development on Indian trust lands, it has a long history of not living up to its fiduciary responsibility of managing Indian trust funds.” In 1996, a class-action suit against the BIA for this mismanagement resulted in a settlement of $3.4 billion.20
Underlying federal policy are the assumptions that Indians are simply incapable of managing their own affairs and that natural resource development somehow runs contrary to their traditions. Researchers have examined this latter assumption in recent years. In his book 1491: New Revelations of the Americas before Columbus, Charles Mann looks at the scholarly consensus and concludes that the land was hardly “pristine” before Europeans’ arrival. For example, he says of the Amazon rainforests, “The new picture doesn’t automatically legitimate burning down the forest. Instead it suggests that for a long time clever people who knew tricks that we have yet to learn used big chunks of Amazonia nondestructively. Faced with an ecological problem, the Indians fixed it. Rather than adapt to Nature, they fixed it.”21
Another common assumption about Indians today is that they’re traditionally communists, sharing all property. But the truth is much more complicated, and historians have found significant evidence of individual and family-held property rights among Indian tribes.
In the 1974 “Boldt” decision, which granted fishing rights to Indians in the Pacific Northwest, presiding judge George Boldt cited the history of Indian fishing in the area in his decision: “Generally, individual Indians had primary use rights in the territory where they resided and permissive use rights in the natal territory (if this was different) or in territories where they had consanguineal kin. Subject to such individual claims, most groups claimed autumn fishing use rights in the waters near to their winter villages. Spring and summer fishing areas were often more distantly located and often were shared with other groups from other villages.”22 Indians invested significant effort in ensuring an adequate supply of fish each year. The idea that prior to whites’ arrival, Indians were simply roving bands living off whatever wildlife they happened to come upon and then sharing it equally among themselves runs contrary to history – not to mention everything we know about human ingenuity and human nature.
But it’s an idea that continues to dictate public policy.
For today’s journalists and historians looking back at the Dawes Act, the problem is clear. As Bordewich wrote, “Like many of his contemporaries in the golden age of capitalism, Dawes perceived private property as an almost magical force, a severe but benevolent taskmaster with transformative power.”23
The truth of the matter is that Dawes was right – private property is an almost magical force. As any survey of world history demonstrates, countries that have adopted private property rights and the rule of law to enforce them are better off by almost every measure. Over the past 200 years, with the spread of capitalism, global per capita income has increased more than tenfold and average life expectancy has more than doubled.
As Leonard Carlson notes in his 1981 book Indians, Bureaucrats, and Land, “no student of property rights or, indeed, economic theory will be surprised that the complicated and heavily supervised property right that emerged from allotment led to inefficiencies, corruption and losses for both Indians and society.”24
In addition to the corruption that dominated the initial process of assigning allotments, there was also the 25-year waiting period before Indians actually owned their plot of land outright. This provision, ostensibly intended to protect Indians from selling their land to rapacious whites before Indians were judged “competent” to know their own interests, had the effect of diminishing the land’s value. Imagine that you were broke and someone gave you an acre of land but told you that you had to wait 25 years to sell it. Unless you wanted to start planting vegetables tomorrow, what good would it do you? You couldn’t even use it as collateral to get a loan, because technically it wouldn’t be yours yet. These kinds of provisions have the effect of sucking the magical powers out of a system of private property.
In other words, Indians have long