Where Does Federal Indian Policy Really Come From?

This month’s newsletter will combine elements of previous newsletters to answer the provocative (and potentially unanswerable) question, “Where does federal Indian policy really come from?” This question was prompted by a recent reading of Joe Kalt and Stephen Cornell’s article “Where does tribal economic development really come from?” In their article, Kalt and Cornell sketch the basic conditions that allow some Indian nations to build successful and thriving economies. Their basic answer is that (1) government institutions must be strong in order to support economic development; (2) culture matters; and (3) the institutions and culture must “match.”

Here I will answer the policy question by citing my own research and showing how popular images of Indian people influence and justify policy and the ways that policy then codifies these images. In addition, it is important to note that Indian nations rarely produce or manage these popular images of Indian people. Rather, these images serve the needs of the image-makers, who use them politically to perpetuate stereotypes and justify harmful policies.

First, where does federal Indian policy not come from?

It is important to first reiterate where federal Indian policy does not come from. As we know, federal Indian policy does not currently emerge from real-life problems in Indian Country. Indian policy also does not respond to the recommendations of federal study commissions (e.g. the National Gambling Impact Study Commission). Finally, Indian policy rarely codifies scholarly research findings or reflects the facts of any issue or problem. In fact, Indian policy often serves the needs of those who know (or care) little about Indian people or Indian country. Indian issues seem to become “important” when they become a “problem” for non-Indians (think of the “problem” of retail sales tax collection as defined by Petroleum marketers or Convenience stores). Hence, Indian country often plays defense, trying to stop or delay attacks on tribal sovereignty and sovereign rights. Rarely are positive policies proposed that would actually improve conditions on reservations.

The “Mixed Blood” image at White Earth

My research into the use of Indian images as the foundation of federal Indian policy began at White Earth, Minnesota. While doing historical research for my dissertation on the impacts of Indian gaming on the White Earth reservation, I came across an incredible history of resource alienation on the reservation. This story is a provocative example of the ways Indian images and federal policies are mutually reinforcing.

A Short History of White Earth

The White Earth reservation was established by treaty in 1867.  White Earth was an experiment in reservation making for two reasons. First, because the land retained by the Chippewa included fertile agricultural land, forest and substantial timber stands.  Here tribal members were to continue their practices of hunting, fishing and wild ricing while also learning to farm. Second, White Earth was a removal reservation. This meant that all Chippewa bands in Minnesota were to be concentrated on one reservation and cede lands reserved in earlier treaties.

The 1889 Nelson Act

Allotment at White Earth was more than a benign process of matching individuals to plots of land they could call their own.  Land allotment was carried out on the White Earth Reservation through the 1889 Nelson Act. The Nelson Act was intimately linked with removal to White Earth from other parts of Minnesota because it promised agricultural allotments to those Chippewa who agreed to resettle there. According to the Nelson Act, only agricultural land would be allotted to individuals. Valuable timber and  pine lands within the reservation were to be owned communally.

The various bands who relocated to White Earth held differing views about land use. The Chippewa themselves used cultural categories of “mixed blood” and “full blood” to distinguish between those Chippewa who were market-oriented and those who wanted to retain land communally. These terms were used by the Chippewa solely to designate economic behavior, much the same way terms like “progressive” and “traditional” are used in other tribal contexts to capture such nuances.

The Steenerson Act

White Earth’s rich resources made it a prime target for timber companies in Minnesota who wanted access to the valuable timber land held communally by White Earth tribal members. The 1904 Steenerson Act was the first legislative attempt to separate the White Earth nation from its timber. This Act authorized the allotment to individuals of the forest lands within the White Earth reservation.

Clapp Rider of 1904

One day after the Steenerson Act was introduced, the Clapp Rider passed almost unnoticed. This rider authorized tribal members to sell valuable timber resources from their allotments.  Under the Nelson Act, timber lands could not be allotted and communal resources could not be sold. The combined effect of the Steenerson and Clapp Acts was to legalize first the allotment and then the sale of communal timber holdings. Together, these pieces of legislation redefined collective cultural resources as individual resources destined for sale to outsiders.

Timber companies were not the sole supporters of this Act, however. Some market-oriented Chippewa at White Earth also greeted this Act with enthusiasm and timber companies helped facilitate the allotment of timber lands to those individuals most likely to sell.

The actual sale of these timber lands was a cumbersome process, however, because individual allotees had to secure permission from the Secretary of the Interior to sell their resources.  This negotiation with the Indian Office took place on a case-by-case basis, slowing down the acquisition of resources by lumber companies and frustrating individual Indian entrepreneurs who wanted to make a profit from their land holdings.  Both “mixed bloods,” a gloss for those Indians who showed an interest in capitalist ventures, and timber companies complained of federal protectionism.  They shared a common goal: to have separate rights from their more “traditional” full blood neighbors.[1] Complaints about protectionism coincided with a national pessimism regarding Indian competency that was based on Indian “racial” traits.

Burke Act of 1906

The result was legislation, the Burke Act of 1906, which codified the notion of competency in order to “liberate” competent Indians from Federal constraints while continuing to “protect” supposedly “incompetent” full bloods. The legislation basically  stated that if the Secretary of the Interior was convinced of an allottee’s competence, he could terminate the 25-year trust period for the individual allotment, allowing the sale of the land without lengthy procedures. For purposes of the Burke Act, the measure of competence was the level of “industry” displayed by the individual.  Determining the level of “industry” of individual Indians was difficult and time-consuming, however, so another Clapp Act was passed to clarify the intentions of the Burke Act.  This second Clapp Act removed the protective restriction on individual land allotments by making the general proclamation that “mixed blood” tribal members were competent enough to make decisions about land sales for themselves.  Therefore, “mixed bloods” would not have to wait the 25-year trust period to sell their land or resources to timber companies.  For the purposes of the Clapp Act, the definition of “mixed blood’ was not based on the previous notion of ‘industry’ as a standard of competence set by the Burke Act. Rather, ‘mixed blood’ was redefined as a racial term, wherein possessing “white” blood was the literal source of competence. This 1906 Clapp Rider redefined competence along racial lines, thereby appropriating what Indians had used to mark economic behavior as a descriptor with a real-world referent. In other words, “white” blood meant you had more business sense. In addition, the Clapp Rider of 1906 was carefully drawn to achieve the broadest possible application. This meant that no one defined the term mixed blood in the legislation itself so there was no specific way to determine who could acquire the new “right” to sell land and resources.

Who is Mixed Blood?

As the new legislation was implemented a major question loomed: “Who was mixed blood for land sale purposes and how would that be determined?” The legislation facilitated land sales to outsiders long before it outlined the parameters for legally allowing those sales.  By the time this question of who was “mixed blood,” and therefore competent, was asked, most of the land at White Earth had already been sold to outsiders. In many cases, “mixed blood” status would be conferred on allottees after the land had been acquired by non-Indian speculators as a way to legalize the purchase after the fact. The legal blessing for land sales would take a little more time and negotiation…and some help from anthropologists.

How much “White” Blood do you Need?

The first task at hand was to determine how much “white blood’ an individual needed in order to be “competent” for land sale purposes.  Was “one drop” enough, or did an individual need to be at least one-half “white?” In a 1911 census of White Earth, the Indian agents assumed, based on popular notion of the day, that being “mixed blood” meant having “on-half or more white blood” while being full blood “meant having on-half or more Chippewa blood.”

The U.S. District Court finally ruled that One-eighth or more “white” blood would justify “mixed blood” status. According to Judge Page Morris, “having less than one eighth blood would not affect the capacity of the Indian to manage his own affairs.”  This District Court decision was appealed by the defendant, a lumber company, and was later reversed by a U.S. Circuit Court of Appeals. Finally, the U.S. Supreme Court confirmed the Circuit Court’s decision, stating that “from now on, any Indian having an identifiable blood other than Indian was “mixed blood.”

For the purposes of land sales at White Earth, “one drop” or “white” blood equaled competence and hence, made most of the reservation vulnerable to be sold to outsiders. However, one final question remained…How would the amount of “white blood” possessed by an individual be determined?

Here come the Anthropologists

At this time, physical anthropologists at the Bureau of Ethnology at the Smithsonian Institution were creating and perfecting ways to determine and predict racial and cultural abilities. (This line of inquiry enjoyed worldwide popularity at the time.) Because of their expertise, two anthropologists were sent to White Earth in order to determine who was “mixed blood” and who was “fullblood.” According to one account, their techniques included tests “to measure, to scratch the skin, pull the hair and otherwise physically examine the Chippewa people living there.”

Anthropologists in the early part of the century focused on head form and other physical traits that they could link to mental capacity and racial hierarchies.  This scholarly interest in mental characteristics resonated with the political and legal interest in Indian competence for land sale purposes at White Earth.  The main question anthropologists were asked to address was “Which Indians should be liberated from the federal trust relationship due to competence and which ones still needed protection?”

Competence Equals “White” Blood

In November of 1914, Dr. Alex Hrdlicka of the Smithsonian Institution was hired to be an expert witness “to examine certain Indians in the state (of Minnesota) for the purpose of determining their blood status.” In May of 1915, Hrdlicka made a trip to the White Earth reservation to inspect Chippewa people’s skin, hair, noses, hands and feet. Professor Jenks, an anthropologist from the University of Minnesota, was also employed as an expert witness and assured the courts that “he could indisputably tell full-bloods from mixed bloods by a cross-section analysis of the hair of an Indian.” Using these methods and concepts, Hrdlicka and Jenks provided the government with the evidence they needed to justify the extraction of tribal resources by public and private outsiders.

Creating Stereotypes is a Political Act

The reduction in the number of “full-bloods” was clearly a political act.  Creating and then identifying “mixed blood” individuals coincided with cultural assimilation projects of the day, which demanded a reduction in the total number of Indian people in the United States. After all, fewer Indian people meant fewer legitimate land claims cases. Illegal land transactions were legalized through this type of reasoning and implemented through policy.  While the “one drop” rule served policy in the South by increasing the number of people who could potentially be enslaved, this rule was applied at White Earth in order to “erase” people’s Indianness. The “erasure” of Indianness through the metaphor of blood provided easier access to tribal lands and fewer legitimate Indian heirs to make land claims in the future. These early policies codified racial terms and continue to frame identity politics and land claims at White Earth.

The Impact of Policy Based on False Images

The definition of “mixed bloods” using the “one drop rule” was devastating for land retention and land claims cases at White Earth.  The United States and BIA censuses reveal the impact of creating more “mixed bloods” for land sale purposes. In 1900, there were 44 percent full-bloods living at White Earth.  By 1910 there were 15 percent.  And by 1930, less than one percent of the White Earth community were enrolled as full-blooded tribal members.

In the end, the determination of full- or mixed-blood status was more useful for Indian individuals to try to reclaim their land after it had been sold (by arguing that they or their ancestors were “fullblood” and not legally competent to sell the land) than to protect it from being sold in the first place.  Determination of mixed-blood status, then, was important for land claims cases by alienated land owners after the fact, rather than as a way to protect tribal members from being ripped off in the first place.  The ultimate use of this legislation was that by creating more “mixed bloods” there was ultimately more land available for sale and legal recourse for timber companies that purchased reservation timber lands from “mixed blood” tribal members.

Policy Continues to Depend on Indian Images and Stereotypes

This history at White Earth is a striking example of the ways that policy makers and interested “others” can manipulate Indian identity for their own purposes. While the stakes have changed, the process of attempting to alienate tribal members and Indian nations from their resources continues in much the same way today. In the July 2000 newsletter I explored the ways that the image of the “rich Indian” is used politically to undermine tribal sovereignty and target Indian nations’ resources. In April, 2001, I looked at the ways media and public opinion create and perpetuate images that can be employed politically by policy makers and industry opponents.

Indian nations continue to assert their tribal sovereignty in interactions with other governments. Indian gaming is providing the capital for nation-building and allowing Indian nations to establish and strengthen governmental institutions. National media have already begun to document the ways that Indian nations are influencing policy makers and policy through lobbying, public relations and community relations. As Indian nations continue to become increasingly visible there will be less opportunity for opponents to define and misrepresent Indian people and Indian nations. 

To read more about White Earth history, find The White Earth Tragedy, by Melissa Meyer (University of Nebraska Press).

Written by Kate Spilde, Ph.D. May, 2001

[1] Reasons for a Chippewa tribal member to want to be declared “mixed blood” varied. The difficult living situation at White Earth made access to quick cash enticing. Other allotted had never lived on their allotted land, perhaps not even seen it, so they would sign affidavits declaring themselves to be “mixed bloods” so they could sell land that had little intrinsic value to them.

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