The Heartbeat of Wounded Knee

In 1885, Congress passed the Major Crimes Act. The law declared that “major crimes” committed by one Indigenous person against another would be tried in federal court. This was because only the federal government had the authority to prosecute crimes committed by Indigenous people against other Indigenous people. The government also had the authority to regulate tribal and intertribal matters.

When a Lakota tribesman named Crow Dog murdered Spotted Tail, an uncle of the famed Lakota chief Crazy Horse, the tribe tried Crow Dog, found him guilty, and punished him. In response to the Supreme Court’s refusal that the government could prosecute Crow Dog, Congress passed the Major Crimes Act.

The state of Kansas, however, wanted to avoid the expense of transporting Indigenous criminals to federal court. The state created new legislation that certified its right to try members of tribes. Other states, including Iowa, New York, California, and North Dakota, followed suit. These states’ initiative allowed the federal government to “[get] out of the Indian business” (248). The federal government had, after all, not served Indigenous people well throughout the 1930s and 1940s. Indigenous people suffered from poverty and were confined to reservations that were “rife with disease and deplorable living conditions” (249).

The chairman of the Senate Interior Subcommittee on Indian Affairs, Arthur Vivian Watkins, was outspoken in his belief that the Bureau of Indian Affairs, as well as certain laws tailored to tribes, held back Indigenous people and treated them differently from other Americans. He insisted that the solution was to stop treating Indigenous people like wards of the state. In 1953, he pushed through the Termination Act, which tried to fix the problem “by making Indians—legally, culturally, and economically—no longer Indians at all” (250). Watkins, a Mormon from Utah, emphasized that the time had come for the Indigenous to become both independent and “a white and delightsome people as the Book of Mormon prophesied they would become” (250).

The Indian Claims Commission was created in 1946 as a part of the Indian Claims Act. By the 1940s, tribes nationwide were filing more claims than ever against the federal government as they became more adept at understanding their rights and at advocating for them. By 1946, tribes had filed over 200 claims against the government, usually for illegal land seizures or “for criminally low prices paid for land taken legally” (252). The purpose of the Commission, which existed until the 1970s, was set up to address all wrongs done to Indigenous people by offering financial awards. The last claim on the court’s docket was finalized in 2006. Though it often took decades for the money to arrive, tribes that were deeply impoverished relied on the payouts as correctives and relief.

Conversely, the Indian Claims Commission was also a tool to shift tribes into the next phase of federal oversight. From the 1890s to the 1930s, the US government’s policy was to shift Indigenous people into the mainstream. New York and California passed acts, modeled on the Kansas Act, which violated the treaties that tribes had entered into with the US federal government. Meanwhile, the Termination Act of 1953, passed alongside Public Law 280, changed how tribes would relate to the federal government.

Public Law 280 was intended as a law-and-order act, but it only made the legal status of Indigenous people nebulous. Some criminals were tried in federal court, others in tribal court, and others still in the Court of Indian Offenses. The law disrupted tribal sovereignty. However, tribes in states not covered by the law “continued to administer civil and criminal matters in tribal and federal courts” (255). States also interpreted Public Law 280 as a regulatory measure. They set up schools, levied taxes, became involved in health care and licensing, and curbed treaty rights. They also oversaw the harvesting of game. This overstepping by states, which was still technically illegal, would not be corrected until the 1980s, after a Supreme Court ruling.

Before termination became an official policy, some tribes had already been living under some form of it, including the Little Shell Band of the Ojibwe, led by Esens (Little Shell), a Pembina Ojibwe leader. The Red River valley, which they occupied, was rich with bison and waterfowl. Its soil was also especially good for farming, leading Zachary Taylor to open the area up for settlement between 1849 and 1850, before Minnesota became a state. Under pressure from the federal government, the Pembina and Red Lake Bands of Ojibwe signed the Treaty of Old Crossing in 1863, giving up their claim to the Red River valley.

In response, Little Shell refused to sign any more treaties with the federal government as each signature resulted in tribes ceding more land. In 1882, Congress created the Turtle Mountain Reservation, where the Ojibwe were relocated. Two years later, the government reduced the size of the reservation—originally 460,800 acres—“to a tenth [of] its original size” (259).

After the passage of the Dawes Act in 1887, many of the Ojibwe—those at Turtle Mountain, Mille Lacs, and Leech Lake—were coerced into relocating to the White Earth Reservation, as many of the tribal members still lived on land that the federal government wanted. Little Shell, however, refused to negotiate and still had not given up the millions of acres that had originally belonged to his tribe. To avoid contending with Little Shell, the government propped up other members in his stead and signed treaties with them. In 1892, these 32 arbitrarily chosen chiefs signed the McCumber Agreement, which formally gave away all of Little Shell’s land for a small sum. Little Shell and his people had gone from “masters of their own vast territory to landless people” (259).

The Menominee of Wisconsin present a different story. Before Europeans arrived in the 1600s, the tribe occupied over 10 million acres within what are now eastern Wisconsin and northwestern Michigan. They are the only Indigenous tribe currently living in Wisconsin that has always been there. As the federal government prepared Wisconsin for statehood, it attempted to place the Menominee much further west, but the tribe refused. Instead, they settled on a small reservation near the Wolf River, where they remained until the 1950s. A century earlier, not long after the reservation was established, the tribe bought a sawmill. This was the start of their very successful and lucrative timber industry.

The US government attempted to oversee Menominee logging and forbade the tribe from cutting its own timber. Instead, the government hired White-owned logging companies to cut trees on the tribe’s land. The contractors also engaged in “rampant illegal cutting” (265). In 1934, the Menominee filed suit against the federal government for damages due to illegal cutting. Twenty years later, the suit was settled in federal court, and the tribe was awarded $8.5 million. As a result of their determination, the Menominee ended up at the top of the government’s list for tribal termination. Senator Arthur Watkins visited the tribe in 1953, shortly after the passage of the Termination Act. He told the Menominee that, if they wanted to claim their $8.5 million, they would have to agree to termination. The Menominee agreed, as the funds were key to their survival.

In 1961, the Menominee Reservation and the tribe officially terminated. All reservation territory and tribal property entered Menominee Enterprises, Inc. (MEI), a private corporation. The reservation became Menominee County, but being corporate-owned, the county lacked a tax base. Services such as police and waste management ate into the tribe’s funds. By 1964, the tribe had only $300,000. The MEI board, which was run by Whites, voted to sell lakeside lots for summer homes to increase tax revenue. In the 1970s, the Menominee undid their termination agreement and got their reservation back.

By 1940, over half of all Americans lived in major cities, but only six percent of Indigenous people did. White workers also earned twice what the average Indigenous person did. The government believed that the solution was to move more tribal members into the cities. The Navajo-Hopi Law provided funding to get job training to the Navajo and Hopi tribes of New Mexico and Arizona, with the goal of moving them to Denver, Salt Lake City, and Los Angeles to find work.

Indian agents around the nation produced fliers, brochures, and posters to convince Indigenous people to sign up for relocation programs, and many did. However, by 1970, both termination and relocation policies had resulted in higher levels of unemployment and poverty. The policy of termination waned during Lyndon B. Johnson’s presidency but did not end completely until 1970, during Richard Nixon’s tenure.