Indian Appropriations Act (1871)

The Indian Appropriations Act of 1871 declared that Indigenous people were no longer considered members of “sovereign nations” and that the US government could no longer establish treaties with them. The act effectively made Native Americans wards of the US government and paved the way for other laws that granted the federal government increased power over the land and lives of Indigenous peoples.

Although it promised not to “invalidate or impair the obligation” of previous treaties, the act was the first step toward the elimination of Indigenous sovereignty, which was completed in 1898 with the Curtis Act, and the invalidation of previous treaty obligations, a power finally granted to Congress in 1903. One of the first arrangements to be made in the post-treaty era was the Brunot Agreement, in which Utes under Ouray ceded Colorado’s San Juan Mountains to the United States.

Origins

Unlike other Indian Appropriations Acts, most of which served the mundane purpose of allocating federal funds to fulfill treaty obligations, the Appropriations Act of 1871 marked a major shift in federal Indigenous policy. Nearly a century earlier, immediately after the nation was established, President George Washington applied the president’s treaty-making power to Indigenous nations, setting a precedent for nation-to-nation diplomacy.

Four decades later, Indigenous sovereignty was upheld in the 1832 Supreme Court decision Worcester v. Georgia, which declared that Indigenous people did indeed belong to “sovereign nation[s].” This result obliged the United States to engage with Indigenous people in diplomacy the same as it would Spain, Britain, or France. President Andrew Jackson ignored the ruling, but future administrations respected it, forging treaties with various Native nations that had to be ratified by Congress.

Many Indigenous leaders who signed treaties did not fully understand what they were signing because they were unfamiliar with the US government as well as American legal writing and practices. That eventually changed, however, and over time treaties became an important source of Indigenous power since they were by definition made between equal partners—nation to nation. If nothing else, Indigenous nations could point to treaties to protest nondelivery or delay of annuities (money and supplies promised in treaties) or trespassing on Indigenous land. Many Indigenous leaders rightly came to regard treaties as the final say on what the US government and its citizens could or could not do regarding Indigenous land and people.

After the Civil War, however, a renewed spirit of white national unity, as well as the ongoing conquest of the American West, compelled many in Congress and the western territories to reconsider Indigenous sovereignty. Treaties that created reservations and Indian agencies, they argued, essentially made Indians dependent on the government, so why must they continue to be recognized as independent nations?

The Appropriations Act of 1871

Under the Constitution, treaty making was the prerogative of the president, acting with the advice and consent of the Senate. The House of Representatives had no say in creating treaties and was only responsible for allocating funds to carry out their provisions. By the 1870s, however, the House had new members representing new constituencies in western states, many of whom lobbied for the removal of Indigenous people. The House as a whole had also come to resent its minor role in Indigenous affairs, going so far as to refuse to fund new treaties. As the House debated the Appropriations Act of 1871, representatives hitched a rider denying Native sovereignty to what was otherwise a routine allocations bill. Even though the rider increased the House’s power in Indigenous affairs, the Senate approved the bill on March 3, 1871, and President Ulysses S. Grant signed it into law.

A New Era

Although it prevented new treaties from being written, the Appropriations Act did not end binding agreements with Indigenous nations. These agreements, however, differed from treaties in that they were not bilateral—meaning the US government could choose to respect Native Americans’ demands at its own discretion. The Brunot Agreement of 1873, for example, still had to be ratified by Congress and made the government accountable for the agreement’s stated compensation to the Utes. However, the Appropriations Act laid the groundwork for the government to abandon past obligations, a right that the Supreme Court granted to Congress in its 1903 decision Lone Wolf v. Hitchcock.

After the 1871 Appropriations Act, historian Mark G. Hirsch writes, “US repudiation of treaties and tribalism was steadfastly opposed by American Indians, who continued to identify themselves as members of autonomous, self-governing nations.” This resistance took many forms, from religious movements such as the Ghost Dance to outright refusal to participate in subsequent laws, such as the Dawes Act of 1887. In Colorado, the 1879 Meeker Incident stemmed from the Utes’ refusal to give up either their tribal identity or their sovereignty, especially because the latter was protected by treaty. While not opposing the Appropriations Act by name, these assertions of autonomy were responses to the denial of Indigenous self-determination that was codified in the 1871 Act.

The Dawes Act, which broke up collectively owned Indigenous reservations into individual lots, demonstrated Congress’s true intent with the Appropriations Act. Nothing in any treaty signed before 1871 gave the federal government the right to forcibly break up reservations, but after tribal sovereignty was nullified in the Appropriations Act, Congress assumed the right to legislate on all matters concerning Indigenous affairs as it saw fit. By breaking up spiritually and culturally significant land that had been held collectively for generations, the Dawes Act dealt another crippling blow to Indigenous sovereignty in the late nineteenth century.

Legacy

By the end of the nineteenth century, indigenous nations within the United States had gone from having the rights due any other foreign country to having almost no right to exist. This process had been under way before 1871, but the Indian Appropriations Act of that year incorporated it into official government policy, opening the door for its rapid acceleration.

While no new treaties have been written since 1871, Congress did eventually restore some measure of Indigenous sovereignty in 1934 with the Indian Reorganization Act (IRA). However, because it forced tribes to hold votes and write their own Constitutions, many tribes correctly viewed the IRA as another government mandate.

Even though most federally recognized tribes today have some form of self-government, the fight for Indigenous sovereignty denied in the 1871 Act continues. In New Mexico, for example, Indigenous people are resisting government-sponsored energy drilling near sacred sites on public land; in North Dakota they have protested government-imposed oil pipelines across treaty-protected land. Meanwhile, in Alaska and Colorado, tribes are lobbying for the power and resources to combat disproportionately high rates of sexual assault and other violent crime on federal reservations.