#Part 1

These are some pretty big questions, none with any easy answers and that impact Tribal Sovereignty today.

The history of reservations is tied to the treaties made between Native Nations and the United States, along with other developments of the U.S. federal government's Federal Indian Policy. This is where we see the establishment of reservations.

Prior to 1871, the United States made numerous treaties with the various Native Nations in what is now the United States. These treaties are just like any other treaty with any other country. They are considered part of the supreme laws of the land and are recognized as "a contract between two sovereign nations" (Washington v. Fishing Vessel Assn., 1979). While the goal of these treaties, from the U.S. perspective, were to obtain Indian lands, promises were made in these documents that have formulated the basis of Indian Law and the future of Federal Indian Policy. Some of the promises made, for example, were the recognition of the Tribe's inherent sovereignty; arrangement for the physical protection of Tribes; provisions of food, education, civil services; *and the reserving of their remaining lands for their personal occupancy and use.*^1 This means that these contracts protected the remnants of a Tribe's landholdings that they did not cede over to the U.S. via negotiations or lost due to conquest.

This is basically how reservations developed. Much of it stems to the establishment of "Indian Territory" in the present-day state of Oklahoma. When the Indian Removal Act of 1830 was put into full force and Tribes of the Southeast were forced to the West of the Mississippi River, the lands that were apportioned to the Tribes had established boundaries that the Tribes could exercise their full authority within. Does this mean that the reservations were an idea essentially proposed by Indian Tribes? No. The reservation system, though physically manifested through the reserving of lands through these treaties,^2 is a colonial concept that has worked to isolate and subjugate Native Nations in its bureaucratic operational execution. In the Treaty with the Choctaw Indians of 1830, articles II, III, IV, XIII, and XV highlight some key points for the creation of their reservation in Indian Territory and how the system of reservations would progress.

ARTICLE II. The United States under a grant specially to be made by the President of the U.S. shall cause to be conveyed to the Choctaw Nation a tract of country west of the Mississippi River, in fee simple to them and their descendants, to inure to them while they shall exist as a nation and live on it. . .

ARTICLE III. In consideration of the provisions contained in the several articles of this Treaty, the Choctaw nation of Indians consent and hereby cede to the United States, the entire country they own and posses, east of the Mississippi River. . .

ARTICLE IV. The Government and people of the United States are hereby obliged to secure to the said Choctaw Nation of Red People the jurisdiction and government of all the persons and property that may be within their limits west. . .

ARTICLE XIII. It is consented that a qualified Agent shall be appointed for the Choctaws every four years. . .

ARTICLE XV. To each of the Chiefs in the Choctaw Nation ... is granted a reservation of four sections of land. . . (Prucha, 1996).

Article II dictates how the title of the land was to be held (in fee simple) and how it would be transferred (to their descendants). Article III indicates the Choctaw, in accepting this treaty, were to cede their current land possessions. Article IV states that in exchange, the U.S. would protect the Choctaw. Article XIII, and this is part of the point I'm making, establishes that an agent is appointed to work between the U.S. government and the Choctaw. In a way, the agent acts as an envoy or diplomat, but as time would go on, they had considerable power on the reservation. Article XV is just further elaboration on the reserving of lands.

Dunbar-Ortiz (2014), in light of how the treaties implemented key features that could cause a shift in their organization, explains:

The US establishment of a system of Indian reservations stemmed from a long British colonial practice in the Americas. In the era of US treaty-making from independence to 1871, the concept of the reservation was one of the Indigenous nation reserving a narrowed land base from a much larger one in change for US government protection from settlers and the provision of social services. In the late nineteenth century, as Indigenous resistance was weakened, the concept of the reservation changed to one of land being carved out of the public domain of the United States as a benevolent gesture, a "gift" to the Indigenous peoples. Rhetoric changed so that reservations were said to have been "given" or "created" for Indians. With this shift, Indian reservations came to be seen as enclaves within state' boundaries. Despite the political an economic reality, the impression to many was that Indigenous people were taking a free ride on public domain (pp. 10-11).

By the end of the 19th Century, Indian Reservations were seen less like reserved plots of land secured through negotiated treaties between sovereign nations and more like allotted plots of lands from the government to a minority group. Thus, matters began to be handled via legislation and policy rather than diplomacy. The Indian Agents were seen as managers or handlers of Indians. Reservations become surrounded by U.S. public domain and waning war efforts by the Tribes resulted in decreased resistance and more reliance on the services secured through the treaties, if those services were not impact by U.S. policymakers.

This conceptual shift is also evident among Tribes themselves. When Tribes first started reserving their remaining territorial lands, some of the acreage was massive. For example, my people, Nimíipuu, ceded large portions of our homelands, but retained a sizeable chunk in the Treaty of 1855. By 1863, however, the U.S. wanted to renegotiate and without going off into a tangent, our lands were reduced to what our current reservation size is (we still swear by the 1855 Treaty). When reserving lands, Tribes had in mind to continue their lifestyles the way they were, for the most part, before colonization. As land thefts progressed, limits on our sovereignty were increased. Indians had to get permission and even permits to leave the reservation; social services were distributed based on punch cards and vouchers; education was completely taken over by the governments, churches, and private entities; the treaty making process with Tribes was ended in 1871; we were barred from hunting and fishing in many of our accustomed grounds that were the sources of subsistence for us. U.S. citizenship would be forced upon those who had not already been declared such via allotment. Reservations soon turned into virtual detainment camps. And Tribes felt the impact of these. Sickness, disease, death, starvation, and poverty were rampant on many reservations and in some cases, still are today.

What about autonomy, now? Who has the say on reservations? To answer this, we need to look at two items: the concept of "title" and the Supreme Court of the United States.

In 1823, the first SCOTUS case that became known as part of the Marshall Trilogy took place. Johnson v. McIntosh (1823) determined, both directly and indirectly, who owned the title to the lands that the U.S. now found itself claiming after independence from Great Britain. Pevar (2012) succinctly summarizes the issue for us along with the necessary context to understand the state of reservations today:

The specific issue in that case was whether a non-Indian who had purchased land from an Indian tribe had obtained valid title to that land, that is, the right of ownership. The Supreme Court held that the non-Indian had not acquired valid title because the land was no longer the tribe's to sell. The U.S. government had become the owner of all the land within the United States by virtue of the "discovery" of the North American continent by Europeans (who were then replaced by the United States) and the "conquest" of its inhabitants. This view, often called the Doctrine of Discovery, was based on the European concept, as the Supreme Court described it in Johnson v. McIntosh, that Indians were "heathens" and their land could be taken from them and given to "Christian people."

The Court went on to hold that in Johnson v. McIntosh, however, that as the original inhabitants of the United States, Indian tribes have a right to continue to occupy and use their ancestral ("aboriginal") land until the federal government decides to use it for another purpose. The federal government could extinguish this interest at its pleasure, the Court said, but until it did so, the Indians had the right to remain on their original territory. This possessory interest has been called Indian title, Indian right of occupancy, and aboriginal title (p. 24).