Throughout the long oppressive history of federal policy toward Indians, one of worst prescriptions was allotment, the idea that taking communal Indian land and dividing it between individual members would eventually assimilate Indians into the American way of life. We all know that the policy as whole was a failure, but the Supreme Court refuses to recognize that. Due to some unsettled questions concerning allotment, the ghosts of its past are stronger than ever, and they continue to haunt the decrepit Indian community.
Inevitably, the first and most crucial legal question is whether the 1887 General Allotment Act is consistent with the US Constitution. The Fifth Amendment states: “No person shall […] be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”1 Indian land, though owned by the federal government in a trust relationship, can still be construed as property in the sense that Indians retain the rights to use and live on it. It is true that Congress voted to authorize the Dawes Act and President Cleveland signed it into law. So procedural due process seems to have been satisfied. But consider claim for substantive due process. In other words, is the right to use property so fundamental as to be beyond the scope of legislatures? The modern Court generally accepts the doctrine of substantive due process to protect liberties not explicit in the Constitution, such as the right to obtain an abortion, marry, and learn languages. Perhaps the Fifth Amendment’s Due Process Clause would also protect Indians’ right to live off the land that the federal government has basically leased. Finally, the Dawes Act transferred surplus Indian land via sale to nonnatives, which is not a public use. It can be argued that Indian land is not private property because it is wholly owned by the federal government. But suppose many nonnatives live on federal land and Congress took that land and gave it to others. There would be a political outrage, which suggests the national support for allotment was racially motivated.
Second, property taxation presents a unique problem. After the twenty-five year transitory period, the Dawes Act provided that the Indian grantees would obtain fee simple ownership of their land, subjecting it to state laws. So then, exactly how private is the fee simple land owned by nonnatives, which are subject to property taxation, eminent domain, police power, zoning regulations, and escheat? Maybe in practical terms the land used by Indians and owned by the federal government is more “private” than fee simple land of nonnatives and converted Indians. However, the key difference lies in the economic and political opportunities of the two classes. Indians have been materially poorer since the Industrial Revolution. Was the intent of Congress in the Dawes Act to let crippling property taxation force Indian allotment owners into bankruptcy? Did they presage the convoluted and costly fractionation that perpetuates Indian poverty? It might be impossible to know what Senator Dawes thought, but the fact is that allotment, though formally repealed, lingers in today’s social and legal systems, raising constitutional and economic concerns for the Indians it ostensibly helped.
1. U.S. Constitution. Amend. V. Print.