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Upper Mississippi Brigade articles; photo is UMB at Ft. Osage

Federal Indian Laws and Policy through the War of 1812

by Richard Williams

The first federal law regulating Indian affairs was passed in 1790. The fundamental elements of the U. S. Government policy that evolved over the next twenty-five years were six-fold. Laws protected Indian land rights by setting definite boundaries for the Indian country, restricting whites from entering the area (except under certain controls), and removing illegal intruders. Laws controlled the disposition of Indian lands by denying the right of private individuals or local governments to acquire land from the Indians by purchase or any other means. Regulation of the fur trade determined the conditions under which individuals might engage in the trade, prohibiting certain classes of traders, and entering into the trade itself. Laws attempted to control the liquor traffic by regulating the flow of liquor into Indian Country. Congress provided for the punishment of crimes committed by members of one race against another and compensation for damages suffered by one group at the hands of another. It was hoped to remove the occasions for private retaliation which led to frontier hostilities. Lastly, civilization and education were to be promoted among the Indians, in the hope they might be absorbed into the mainstream of American society.

Although the U. S. government adopted this positive policy, it was extremely difficult to enforce because of inadequate federal troops on the frontier. Difficulties persisted despite efforts by the Indian agencies and the military to enforce these policies equally and fairly. Throughout the late eighteenth and early nineteenth centuries, many new laws were passed to modify or replace previous laws that failed or proved inadequate. A brief chronology of the major federal laws follows.

1787-The newly adopted U. S. Constitution gave the federal government the right "to regulate commerce with foreign powers … and with the Indian tribes."

1789-The Treaty of Fort Harmar established the policy of acquiring Indian land through purchase rather than conquest. The governor of the Northwest Territory was paid $2000 a year to assume the duties of Superintendant of Indian Affairs, Northern Department, thereby setting the precedent of governors handling Indian affairs.

1790-The first federal Indian law provided for the licensing of the fur traders and establishing penalties for trading without a license. Licenses were to be issued for a period of two years by the superintendent of the department or by someone appointed by the president. Traders had to post a bond of $1000 to guarantee faithful observance of the federal laws and regulations. Issuing agents could recall license and bond if rules were disobeyed. Any apprehended non-licensed trader might forfeit his goods, with half going to the prosecutor and half to the federal government. The new law also declared individual purchases of Indian lands invalid unless made by public treaty with the United States. It included provisions for the punishment of murder and other crimes by whites against Indians. Crimes against Indians in Indian country were to be punished as if the crime took place against any inhabitant in a state or territory.

1793-The President was authorized to give goods and money to the Indian tribes to "promote civilization … and to secure the continuance of their friendship." Money was set aside to teach the Indians agriculture and induce them to rely on farming rather than hunting for subsistence. A fine of $1000 and twelve-months imprisonment is set for settling illegally on Indian lands or for marking and surveying Indian land. Fur traders could receive a fine of $100 and thirty-five days imprisonment for illegal activities. Superintendents and agents who issue licenses were prohibited from engaging in the trade, with penalties ranging up to twelve-months imprisonment and a fine of $1000. This intercourse act also authorized the President to appoint temporary Indian agents who are under the general supervision of the governors and who report to the War Department. General responsibilities of Indian agents included enforcement of all federal laws concerning the Indians, keeping records of their agency activities, noting the conditions of the local Indians, noting and recording natural history of the area, and noting and recording progress in civilizing the Indians.

1795-Congress introduced government trading factories to promote friendship with the Indians by controlling the fur trade. These government-owned and operated trading posts offered honest dealing and fair prices for furs.

1796-This intercourse act said that U. S. troops, when called upon by civil magistrates, can use military force to remove illegal settlers, apprehend intruders on Indian land, arrest violating fur traders or other offenders, and commit them to safe custody for trial according to civilian law. The term "Indian country" appeared in statute law, establishing Indian territorial boundaries and denying white claims to unceded lands. New laws forbade whites to cross into Indian country to hunt or to graze animals, with penalties up to six-months imprisonment and fines of $100. Military forts, Indian agencies, trading factories, and roads necessary to reach ceded land were excepted. The death penalty was authorized for a white killing an Indian in Indian country. Indian tribes were to be treated as quasi-sovereign nations with jurisdiction over their own members. In cases of Indians committing crimes against whites, Indians were to turn over tribal offenders to the American authorities. If they did not, military expeditions were to be ordered or hostages taken until the accused tribal members were brought in.

1802-Congress passed a trade and intercourse law that remained in effect until 1834. Major provisions of this law included War Department control of all Indian affairs, restrictions and prohibitions for foreign traders operating on American soil, military force could be used to seize foreign trading goods and furs, and the President was authorized to forbid the sale of alcohol in Indian country.

1806-The Office of Superintendent of Indian Trade was established within the War Department. Its main function was to establish and control government trading factories.

1816-Major provisions of the 1816 trade laws included no trading licenses would be issued to non-Americans (although the President could make exceptions), all trading goods and furs of foreigners could be seized, foreigners traveling in American territory must have a passport, Indian agents were allowed to license certain foreign traders, and traders must submit a bond one-fourth the value of their trading merchandise and a list of all licensed employees. Licenses were not to exceed one year, but could be re-issued by the local Indian agent.

In 1818 by amendment foreign traders were completely excluded without exception. Foreigners who are "odious to our citizens because of activity or cruelty in the last war" were never to be admitted into the trade.

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