Thinking people recognized the instability of the relationship, but little effort was devoted to solve it. For three centuries, most settlers, especially those living on the frontier, were hostile to the Indians, while government administrators, judges, Christian missionaries, and some intellectuals tended to sympathize. A couple of years before Shawnees killed William Christian, his sister's husband, Patrick Henry, aiming for interracial peace and to produce a better race of humans, introduced in the Virginia Legislature a bill to subsidize marriages between Indians and whites, with further subsidies for the children of such marriages.  It did not pass, despite the support of John Marshall (whose grand-niece married Henry's great-grand-nephew).

 

            Before U.S. independence, the Crown agents followed a policy of protecting the Indians from the westward movement of land-hungry frontiersmen. The policy's purpose was the commercial benefit of British merchants trading with the Indians. The U.S. government tended to follow policies of paternal humanitarianism and concern for some aspects of justice. The U.S. Supreme Court denied Georgia's jurisdiction over the Cherokees' territory and government, but the settlers had their way and drove most of the Cherokees on their long march westward to Oklahoma. In Theodore Roosevelt's words (with his habitual emphasis of statement):

           

[T]he combination of extreme and indeed foolish benevolence of purpose on the part of the Government, with, on the part of the settlers, a brutality of action which this benevolent purpose could in no wise check or restrain.

 

            Starting early in the 19^th Century, a number of people, not frontier settlers, began to admire many Indians. Their expressions encouraged others in the same direction, until a substantial number started to idealize the Indians, and this attitude has prevailed and expanded ever since. James Fenimore Cooper’s novels played a large part. The image of the “Noble Redman” began to settle into the popular mind. In a history of the Indians by a former Federal official and a colleague, written early in the 19^th Century, many Indian leaders were praised. An example:

 

All eyes were fixed upon the Red Bird; and well they might be—for of all the Indians I ever saw, he is, without exception, the most perfect in form, in face, and gesture. In height, he is about six feet; straight but without restraint. His proportions are those of the most exact symmetry, and these embrace the entire man, from his head to his feet. His very fingers are models of beauty. I have never beheld a face that was so full of all the ennobling and at the same time the most winning expression.… It appears to be a compound of grace and dignity; of firmness and decision, all tempered with mildness and mercy….[His hair] was cut after the best fashion of the most civilized….

     The Indian chief is careful of his reputation, and never appears in public without the preparation which is necessary to the dignity of his personal appearance, and the success of any intellectual effort he may be called upon to make. His face is skillfully painted, and his person studiously decorated; his passions are subdued, his plans matured, and his thoughts carefully arranged, so that, when he speaks, he neither hazards his own fame nor jeopards the interest of the tribe.

                                                --History of the Indian Tribes, McKenney & Hall

 

            For almost 300 years (Jamestown to Wounded Knee), relations between Indians and the new population (immigrants and their descendants) were marked by violent conflict. This long-sustained strife owed to intermingled causes.  

 

            a) Mutual incomprehension, causing perpetual misunderstanding, from two incomparably different cultures, covering conceptions of land ownership and many other things.

 

            b) Transformation of forest into farms did away with the game on which nomadic hunters had subsisted.

 

            c) One group's growing taste for the fruits of technology that its members lacked and could gratify only by killing more animals (for furs to barter) than they had done for subsistence thus diminished their resources as their appetites grew.

 

            d) The destitute robbed the poor.

 

            e) Two peoples far apart in culture and technology, yet in contact, generated friction aggravated by the disruptions caused in one group when introduced by the other to trinkets, the bottle and the gun, just as happened almost three thousand years before, when Phoenician traders brought to the savage inhabitants of what is now southern France, three principal items: arms, wine and personal decorations.

 

            f) The scorn of the self-disciplined farmer for the vagabond hunter was set against the scorn of adventurous free spirits for those who seemed enslaved by unremitting toil on a fixed routine.

 

            g) One group was composed of practical egalitarians, who regarded the seventy-hour work week as the way one lived, while the other group had values and practices resembling the European aristocracy: Hunting, war, idleness, eloquence, presence and a disdain for manual labor (by men).

 

            h) One might tell the other: "We are poor men from across the sea. All I need to support my family is a few acres. Across this vast and thinly-populated continent is more than enough land for both your people and mine." The other might reply: "That would be so if I could farm. Through no fault of my own, I know how to survive only by hunting and gathering, for which I must roam a vast territory. Were I confined to a tract the size of yours, I would freeze and starve."

 

            i) Incessant, reciprocal revenge, common to disputes between groups not subject to the same order-keeping authority. Euripedes: "Vengeance calls forth vengeance; slaughter calls for slaughter." Milton: "For what can Warr, but endless warr still breed." And on a battlefield during the Wars of the Roses, the Duke of York had fallen and his son, eighteen, was fleeing when Lord Clifford came up and, in Churchill's words, "Slaughtered him with joy," telling him: "By God's blood, thy father slew mine; so will I do thee, and all thy kin!"[1]

 

           j) On the frontiers, the absence of even a mediating service, much less an authority to keep order and to right and deter wrongs, left the parties with little recourse but to seek by force revenge or other compensation for their losses. This conflict was further embittered by the Indians’ traditional practice of biding their time before seeking revenge. In the settlers' eyes, this lost them even the meager credit of having acted under provocation.

 

            k) Past endless tribal warfare throughout much of this continent (like that between Tutsis and Hutus, except ongoing for centuries) had made such a set of responses seem natural and proper to those whom that tradition had shaped. (For example, the Iroquois exterminated the Huron tribe, killing about 10,000, then exterminated the Eries, a tribe about the same size - together about the population of Connecticut at that time.) Among the immigrants, the Scotch-Irish brought with them a closely similar background of perpetual blood feuds. Most of the rest of the settlers, although lacking such a tradition, nonetheless readily took to the process.

 

            l) Each side tended to exact its debt with interest. About 1830, a Kentuckian described this with a quaintness of expression that does not belie the statement's aptness for today: "It is the melancholy character of retaliation, to know no termination to its horrors; and to increase its dreadful fury by additional gratification."

 

                m) In their fighting with each other, the Indians and the Pioneers differed in their outlook and goals. To make a rough generalization, the Indians put more emphasis on practicality and the Pioneers on principle, not necessarily moral principle but a more consistent approach based on some accepted rule. They shared the motive of revenge. Primary motives for the former were pillage and domination. For the latter: protection of the territory that they were occupying as farmers and protection of occupying families. The former tended to operate on a smaller scale of organization. For the former, no quarter was either given or taken. Among those captured, some were tortured to death, a few were eaten (in some tribes), some were enslaved and some were adopted into the tribe. The Pioneers tended not to take prisoners; they sometimes would burn the Indian towns that they took. The Indians’ practical outlook was expressed in the attitude of fighting only where they appeared to have a good chance to score. If outnumbered, their policy was to retreat and wait for another time with a better opportunity. The Pioneers’ outlook gave less heed to the odds of success or failure.

                                   

            For the first 230 years of this conflict, the settlers' casualties exceeded those of the Indians. The heaviest of the settler casualties - men, women and children - were sustained during the half century from 1755 to 1805.

 

            In addition to William Christian, those of my kin killed by Indians included his brother-in-law Stephen Trigg, William Montgomery (and his son and granddaughter), William Salisbury (and his son), Cuthbert Bullitt’s brother Benjamin Bullitt, Louis Marshall’s brother-in-law Joseph H. Davies, and Elizabeth Patton’s brother James.

 

             The Indians lacked strategic thinking, the organizational cohesion needed to deploy large numbers, and the discipline to hold together for a long campaign. But their effective tactics, energy, endurance, stealth, concealment, woodcraft and practice at war more than made up for what they lacked. In reporting episodes of this long-sustained conflict, many of the frontier participants exaggerated both the numbers of the enemies in the field against them and the numbers they had killed; but it is clear that they lost far more than they killed. By comparison, the frontier settlers suffered far fewer casualties when they fought British, Tories and French.

 

            When the settlers emerged from the great eastern forest and came out onto the open country (roughly, at the Mississippi), the tables turned. The settlers' losses dropped, and those of their antagonists rose. The settlers' numbers had grown. Without the forest, the Indians lost both their refuge after their raids and the conditions where their mastery of woodcraft (which more than offset the pioneers' better marksmanship) gave them an edge over the settlers in the killing game. The last half-century of conflict (1840-90) saw Indian casualties exceed those of the Americans with whom they fought.            

 

            The complexity of the relationships between Indians, settlers and government is illustrated by how, during these centuries, Indians did not fight solely to oppose settlement.  Some fought British colonists as allies of the French in King William's War, Queen Anne's War, King George's War, the French and Indian War and all the fighting in between, not labeled as wars.   Throughout the Revolution, some Indians, such as those under the leadership of Dragging Canoe, Blackfish, Pluggy and Brant, fought the Patriots as allies of the British. Their roles and motives varied: mercenaries, allies, practitioners of realpolitik.

 

             In the War of 1812, other Indians, such as those under Tecumseh's leadership, fought the Americans as allies of the British, while a few, like those led by Tarhe (the Wyandot), sided with the Americans. Red Jacket, the prominent Seneca, who had fought on the British side in the Revolution, in 1812 joined the American Army and fought the British. Johnny Logan (born Spemica Lawba, Cornstalk's nephew, son of Chief Maluntha and the Grenadier Squaw) was the adopted son of Benjamin Logan (whose grandson married John Marshall's niece), the Kentucky frontier leader. After Johnny was killed fighting the British in Ohio in 1812 as a scout for General (later President) Harrison, "[H]e was buried by United States Army officers with full military honors" (Clark Eckert, The Frontiersmen, p.553)

 

            In the Civil War, members of several tribes (Osage, Seneca, Delaware et al.) fought on the Confederate side; both sides had members of the four principal southern tribes (Choctaws, Chicasaws, Cherokees & Creeks). A Seneca, Colonel Ely Parker, Grant's military secretary, inscribed the articles of surrender at Appomattox. In James McPherson's words, as the gracious General Lee shook hands with Colonel Parker he "stared a moment at Parker's dark features and said, 'I am glad to see one real American here.' Parker responded, 'We are all Americans.'"

 

            And some, like the Crows who died at the Little Bighorn, fought as allies of the Americans against other tribes, with which they were at war.  Pretty Shield, the Crow medicine woman and one of the wives of Goes-ahead, recalled how he fought alongside Custer against the Dakota (Sioux). Sequoyah, the Cherokee linguist, served under Andrew Jackson in the War against the Creeks (1813-14). For many Indians in recent years, the favorite branch of the armed services has been the U.S. Marines.

                                   

            Before the Revolution, during the century and a half of fairly static settlement along a fringe of the Eastern Seaboard, conflict seethed on the frontier. If the settled coastal zone had not expanded, the two peoples in time may have come to live in peace on this continent. But even if the violence could have been avoided, it is hard to see how the results could have differed much from what took place.

 

             In the southern settlements, not until the start of the 18th Century, when the number of native-born settlers began to exceed that of the immigrants, did the settler population even reproduce itself. Before that, their death rate was too high because the immigrants had no developed immunity to local diseases, such as malaria. But the settlers' population after little more than a hundred years of settlement began to grow faster than that of the Indians, from a combination of immigration and a larger surplus of births over deaths. The trickle became a torrent, then a flood, moving westward not only in larger numbers but at speeds accelerating with the wheel, the steamboat and eventually the train. Even if it had so chosen, the weak central government could have done little to restrain this flood.

 

             Needless to say, even the most broad-gauged people suffered from these misunderstandings that aggravated the problems. Tecumseh, the great Shawnee, in Clark Wissler's words, "visualized a great Indian state in the Ohio Valley and Lake region, which should live in peace and harmony with its white neighbors to the east and English Canada on the north." Yet despite his impressive character, imagination and breadth of vision, Tecumseh "could not understand the power and drive of white nationalism, which not even the good intentions of its devotees could stay, let alone induce to tolerate an Indian state in its wake."

                       

            During the 19th century, Indians first were located or relocated on reservations. One notably consistent thread of policy from early years has been the recognition of the tribes as significant entities with which to deal. Referring to an 1819 Act of Congress, John Marshall characterized it as a statute that "avowedly contemplates the preservation of the Indian nations as an object sought by the United States, and proposes to effect this object by civilizing and converting them from hunters into agriculturists." Worcester v. Georgia, 8 L. Ed. 483, 500 (1832)                        

 

            The reservations differ widely.  Some eastern states have none. All but two of the states west of the Mississippi have some reservations. California has 65. Oklahoma has 32, each occupied by a different tribe, almost all from far distant places (e.g., Seminoles and Seneca-Cayugas). These tribes were driven west to relocate in Oklahoma Territory because it had not been occupied by settlers and was not known to have value for anything but farming (i.e., oil had not been discovered).                        

 

            Some reservations are no bigger than a small village; others are large. About 100 million acres (almost the combined area of Washington and Oregon) are held by tribes, of which about 44 million acres are held by Alaska Natives (Indians and Inuit) under the Native Claims Act and the balance in reservations in the lower forty-eight. The Navajo reservation exceeds 14 million acres (bigger than Massachusetts, New Jersey and Connecticut combined, and almost the size of Lithuania).  The Papago has 2.8 million. Montana has more than 5 million acres of reservations, South Dakota 6 1/3 million.

           

            Washington's 22 reservations range in size from the Colville and Yakima, which hold a combined total of over 2 million acres (and 7,400 enrolled members in 1980), to the Ozette, which is so small that it is recorded as having no Indian residents (Indian Reservations, State and Federal Handbook, 1986, compiled by the Confederation of American Indians). The Quinault Reservation covers about 325 square miles.                  

                                               

            Some have wealth in natural resources such as oil, gas, minerals, timber, farming and grazing, while others are patches of infertile land of negligible value. Some are isolated, while others are strategically located for tourism or residence. Some tribes on reservations have investment portfolios. The TV program 60-Minutes reported Wyoming's Eastern Shoshone tribe's loss of $3.5 million from a derivatives investment.          

 

            Between the Civil War and World War II, U.S. policy sought to integrate Indians into the culture of non-Indian Americans. The aim was less an integration of each with the other than a one-way assimilation. Measures included: Trying to teach the Indians to become farmers and establishing schools - of a Dickensian type - that taught in English, forbade speech in any of the Indian tongues; forbade non-Christian religious ceremonies; discouraged other ceremonies and compelled "citizen dress" (non-Indian) and short hair (When his hair was cut in the Walla Walla penitentiary, my client, son of a Quinault and a Hupa, went on a hunger strike.).

 

            To encourage individualism, reservation land was allotted to individuals in separate parcels, which tended over time to become fragmented by inheritance into tiny fractional portions; and also were held in trust by the government. The policy sought to induce Indians to cease to wander about their reservation and to settle as farmers. (An incidental contributory motive for the policy was that by allotting land to individual Indians, some reservation land sometimes was made available for the waves of would-be farmers heading west.) Almost everyone connected with making policy around 1900 thought the reservation system was temporary and expected that the reservations would end with the Indians integrated into the rest of the society.                    

 

            Another feature of these policies was their uniformity of application, failing to recognize not only the differences between the reservations, as real estate, but also the substantial diversity of customs, attitudes, tastes and gifts among the North American tribes.

 

            Some tribes produced no art. Others produced art of varying types and levels of quality. On the Northwest Coast was wood carving (totem poles, canoe prows, lodge door posts), with the best work done by the Haidas and Tlingit. In the Southwest, art was expressed through pottery. On the Great Plains, the Mandans and others put designs on tepees and made elaborate headdresses. Some in the Northeast carved war clubs (tomahawks) and tobacco pipes of wood or stone. Some decorated bodies with paint or tattoos. The Cherokees and Choctaws are thought to have produced significant art but they so quickly and readily adapted to the settlers' methods and skills that much of the old was abandoned, including art. Because made of wood, most of the abandoned product was lost.

 

            Some tribes produced leaders of impressive abilities, whether military leadership, like Joseph, or statesmanship, like Pontiac (an Ottawa), Osceola (a Seminole, a branch of the Creeks), Cornstalk and Tecumseh (Shawnees) and Crazy Horse (an Oglala Sioux). Some other tribes produced no significant leadership.

           

            The Iroquois had the most complex government, were gifted at diplomacy and noted for their presence and eloquence. The Cherokees were the most advanced in agriculture and dwellings and had the most sophisticated language. The tribes around San Francisco Bay, the most densely populated area north of Mexico, showed negligible skills. The Oglala Sioux and Nez Perce were especially fine-looking. 

 

            An observer wrote that: "The Flatheads are a brave friendly generous and hospitable tribe strictly honest with a mixture of pride which exalts them far above the rude appellation of Savages when contrasted with the tribes around them....Larceny, fornication and adultery are severely punished. Their chiefs are obeyed with a reverence due to their station and rank." (Osborne Russell)

                                   

             In the same physical environment in the Southwest "[T]he Hopi were monogamous, adept in ceramic arts, skilled weavers, and capable farmers, while the Navajo were polygamous, produced no ceramics, confined weaving to women, and supported themselves by herding livestock." (Ray Billington, America's Frontier Heritage, p.50)

 

            Some of the tribes subsisted almost wholly on fish, others on meat. Most ate some vegetable materials gathered from what they found growing wild. Some cultivated some vegetables, and a few relied heavily on what they planted. Some of the tribes on the west coast of Vancouver Island included in their diet the lice that thronged their clothing and heads.

 

            Most of the tribes were nomadic, wandering over a wide territory. Some followed a form of transhumance, moving between two particular areas twice a year, according to the season. Fernand Braudel described the similar practice of Spanish and French shepherds, taking their flocks back and forth, winter and summer, between the mountain pastures and the plains. The Cherokees and the Pacific Coast tribes moved little. The Pueblos were well-settled.

 

            The coming of the horse, brought by the Conquistadors, radically changed the lives of most of the Plains tribes, raising their standards of living, reducing their periods of starvation and providing more time for leisure, war or whatever they chose, by making their subsistence so much less difficult and time-consuming. On their way up the Missouri, the Lewis and Clark party noted the pens with broad, V-shaped wings into which the tribesmen on horseback drove herds of antelope. A trapper wrote of watching a band of Bannocks kill a thousand buffalo cows in one day.

 

            Enough tribes were gifted at war to make the Indians more formidable opponents of European settlers than those anywhere else in the world, even exceeding the Zulus and Maoris. In the East, the Wyandots were warlike, and "The Iroquois, for instance, held their own against all comers for two centuries." Theodore Roosevelt, The Winning of the West, I-34 In the West, the Apache and Blackfeet were fierce, and the Dakota Sioux were impressively gifted at war. Some tribes were notably unwarlike.

 

            Warfare for some was incessant, for others occasional, for some rare. Among those tribes in what is now Canada (excepting the West Coast) there was little or no war; the struggle to stay alive in a harsh climate took all their energies and time. Warfare altered the size and strength of tribes. On the Great Plains, the Pawnees, a settled tribe of horticulturalists and hunters, were crushed by the powerful Sioux. The last step, the slaughter of a Pawnee hunting party in Massacre Canyon in 1873, "ended their centuries-old hold on the region." Richard White, The Roots of Dependency, 1983, p.201

           

            In social structure, some had three classes: nobles, commoners and slaves; some had two, tribal members and slaves; many were equalitarian.

 

            Some chiefs were elected. Some inherited their title by primogeniture or other systems. Chiefs in most tribes had little authority but much influence. Without conduct either prescribed by written rules or described by written history,  most conduct was directed by either tradition or by subjective leadership exhortation.

 

            A traveler, Osborne Russell, observed that among the Crows, "A stranger if he wishes can always be accommodated with a wife while he stops with the Village but cannot take her from it when he leaves." Lewis and Clark passed some tribes that owned slaves, some that offered the use of their women in exchange for trifles, still others that did neither. When his wife denied him her favors, Chief Maquinna's elder brother sent her back to her father but before he did so, to prevent her from marrying again, he bit off her nose. This was attributed not to cruelty or malice but to a sense of justified punishment.

 

            A female captive of many Great Plains tribes commonly was raped by all male members of the band that captured her, but this was not common practice among the tribes east of the Mississippi.

 

            Where slavery was practiced, the common source of slaves was captives from war (as in Europe and the Middle East during Antiquity), although among a few tribes, slaves also were acquired by purchase. The price of a slave, the Nootkans' most valuable form of property, was five fathoms of a string of a certain kind of seashell (similar to wampum). Among the Nootkans, slaves lived with their owner's family, ate the same food and were kindly treated. (Maquinna's nine wives consoled the British sailor John Jewitt after he had become one of Maquinna's fifty slaves.) However, these slaves had to work hard. Some eastern tribes held some Black slaves.

 

            The Indians of the Queen Charlotte Islands treated their slaves worse than did those in the Oregon Territory. They sometimes killed some of their slaves as a form of ostentation. (A certain type of club was called a “slave killer”.) In that part of the Oregon Territory south of the Columbia the tribes practiced slavery and used their slaves for the same services that women were used among tribes without slaves. One reason why some of them flattened their babies' malleable heads was to distinguish them from the slaves. In the deep South, like some later folk, Choctaws were enabled to enjoy substantial comforts by possessing fertile soil and slaves. On the Great Plains, slave raiding was endemic, the raiders being those tribes that were more militarily powerful at any given time. The Haidas would raid the Puget Sound tribes for slaves.

 

            The Iroquois not only held slaves but maintained a form of domination over some conquered tribes from which they exacted tribute and whose members they called “squaws” as a degrading term of contempt to reflect their subordinate status. In light of this, it is puzzling to understand the diplomatic success of Lewis & Clark in their dealings with tribes they met on their westward journey. In addressing a newly-met tribe, these shrewd leaders declared that their government was led by their President, Mr. Jefferson, who would act as father to the tribal members, who would be treated as his children. Why would not the label “children” be resented as had the label “women” applied by the Iroquois?

 

            Although Parkman’s Pontiac, p.343, tells of Pawnee slaves brought to the French settlements for sale and that Pawnee slaves were found in the principal families of Detroit and Michilimackinack, it seems to have been the general experience that settlers found it impossible to maintain Indians in slavery because of their incorrigible, intractable independence and because many found it easy to escape westward where they could survive.

 

            How did the institution of slavery among Indians work, when slavery of Indians by settlers did not work? Was the status different, the nature of the work required? How was it possible for Indians to capture (and enslave) warriors who knew that they might be tortured to death? Or to enslave those who were brave enough to keep from breaking down under slow torture?

 

            Infanticide was practiced at certain times by a few tribes. Samuel Parker's journal reported the Pawnees to be cruel to their women and old men.

 

            Of course, everyone in a Stone Age society had a life that we now consider “nasty, brutish and short.” Men, who in many tribes, engaged mainly in hunting, loafing and war, tended to have a shorter life expectancy than women because of their greater exposure to injury and wounds, from hunting and war. Until little more than a century ago, even in the most technologically advanced societies, few soldiers survived a wound.

 

            Nor did women have a bed of roses. A passage from McKenney & Hall observed:

 

The life of the Indian woman, under the most favorable circumstances, is one of continual labor and unmitigated hardship. Trained to servitude from infancy, and condemned to the performance of the most menial offices, they are the servants rather than the companions of man. Upon them, therefore, fall, with peculiar severity, all those vicissitudes and accidents of savage life that impose hardships and privations beyond those that ordinarily attend the state of barbarism. 

 

            In many tribes, sadism was a wholly individual aberration, as in most of contemporary society. The Wyandots, noted for both ferocity and bravery, rarely tortured their prisoners. In other tribes, sadism was a shared tribal attitude that combined entertainment and revenge. The young Francis Parkman was told by an aged survivor from a tribe defeated by the Mohawks of how the conquerors had impaled the captives' babies on sticks and "roasted them like apples."                                       

           

             When the settlers started to arrive, individual ownership of property was unimportant in most tribes, whose members lived on foot, by hunting and gathering. One ate what one killed, did not accumulate and shared with all. Most tribal units regarded themselves as extended families. Tribal members would feast together and starve together. There was no conception of land ownership, by either individuals or groups, and therefore no conception of boundaries. However, there was a conception of a general territory over which tribes roamed and hunted, and for control of which they fought wars. The area that now is Kentucky, disputed for hunting and largely unoccupied, was known as the “dark and bloody ground.” Ownership of property and consequent differences in wealth increased, of course, as tribes began to acquire domestic animals such as horses and sheep and the durable goods acquired by trade with settlers. Commercial values came in with commerce. These changes took place among tribes at different times and rates, so at any given time tribes differed in their conditions and attitudes toward property.

 

            Among the tribes on the Great Plains wealth (after the coming of the horse) was measured by the number of horses owned. In the Oregon Territory, wealth was measured by slaves, canoes and wives. In still others, wealth was slight and counted for little.

 

            In different tribes, kinship was traced in various ways: patrilineal, matrilineal, ambilineal. Property thus was inherited in different ways in different tribes.

 

            Until the Christian missionaries had arrived and spread their beliefs, monotheism did not exist in the Western Hemisphere. However, north of what is now Mexico a wide variety of other beliefs in the supernatural - spirits, magic, ghosts and so forth - prevailed. The ceremonies and other practices that stemmed from these beliefs likewise covered a wide range. Like the inhabitants of New Guinea, the Indians had a double source of fear: (1) The multitude of real dangers which gave them a short life expectancy; and (2) The belief that dreams foretold the future, so that nightmares and other dreams of feared events would terrify at night and then again in the day when they were taken as predictions of horrible fate. Why were these double fears not multiplied until life became almost unbearable?

 

            The absence of written language, making for a lack of conceptual organization and precision of thought, blurred the observed differences in beliefs. In some tribes, bodily deprivation or pain was self-inflicted to induce visions that influenced the possessors' outlook and sometimes conduct.    

                                   

            Although diversity was great, there were a few universals, such as a technology (north of Mexico) without metal or the wheel and the practice of not beating their children.

 

            The great emphasis on male fortitude to physical pain was widespread, found from coast to coast. This was displayed not only by stoical endurance of illness or injury, with no doctor or pain-killing drugs, but also by forbearing to cry under torture by captors or by religious torments similar to, though more severe and more personal than, those of the Penitentes. And this fortitude was one of the qualities of Indians that were much admired by the settlers.

 

            At times and places these public policies of the reservation system and attempted assimilation were softened by Quaker organizations and others with humane sympathies or common sense. The policies were seen as not only failing in their purposes but also in doing harm. Oliver LaFarge (As Long As The Grass Shall Grow, 1940) and others were horrified by the dehumanizing programs of acculturation under the name of "civilizing," programs that were as unsuccessful as they were rigid and harsh. These critics publicized these evils, and many of the policies were abandoned. Substantial changes were undertaken between the two World Wars.

 

            John Collier, Franklin Roosevelt's head of the Bureau of Indian Affairs, provided energetic leadership, seeking objectives that he characterized as: "Economic rehabilitation, principally on the land. Organization of the Indian tribes for managing their own affairs. Civil and cultural freedom and opportunity." (White, p.255) Many of his measures, conducted forcefully and with the best of intentions, failed because they did not recognize practical land use and the beneficiaries' preferences.

 

            In part, as a reaction to the failure of the integration efforts, new policies were undertaken to encourage segregation, although no longer to compel it. The allotment system was dropped. In reduction of paternalism, a steady increase in the amount of tribal self government has been allowed, and the sale of alcohol to Indians, formerly forbidden, was permitted.

 

            Since World War II, shifts in attitude, and resulting policy, have reflected beliefs that Indians should retain, recover, restore and live by, their earlier, fairly static cultures.

                       

            To the ways of life that the settlers brought from Europe, Africa and Asia and that they and their descendants themselves developed during the past four centuries, Indians reacted in various ways. They took to some things readily, such as the horse and the gun. Many became cowboys, some loggers, some reef net fishers for salmon. Chippewas (Ojibways) made names for themselves as high steel workers. Some (e.g., Navajo) took to ranching but most resisted farming (resented as "women's work"). They did not (in contrast to the Eskimos, as Wissler has pointed out) take to mechanical skills (e.g., they learned to shoot straight but not to repair guns). Few took to intellectual or urban pursuits.        

 

            North of central Mexico, the continent was thinly settled when the settlers arrived. In the mid 18^th Century, Dr. Thomas Walker led an exploring party westward from Virginia into what became Kentucky. During their journey, from March to July, they saw not one Indian. In the late 18th Century and throughout the 19th, Indians' casualty rates from diseases that afflicted the settlers and that were transmitted to the Indians, exceeded those of settler-Indian violence. Lack of inherited or acquired immunity augmented medical ignorance. On the reservations, the deaths from disease were augmented by suicide from homesickness and despair.

                                   

             For a couple of centuries, the Indian population declined. Since the start of the 20^th Century it has risen. Now the Indian population substantially exceeds what is estimated for the time when the first settlers arrived. It is growing from a combination of high birth rate, extended life expectancy and interbreeding between Indians and non-Indians, with offspring classified as Indians. The 2000 Census counted about 3 ½ million Americans who identified themselves as Indians or of mixed white and Indian blood.

 

            Some tribes have no reservation; some Indians do not belong to a tribe. Most live in urban areas. About 1/4 live on a reservation. Almost half live in the Southwest (California, Arizona, New Mexico and Oklahoma).

                                                           

            Laws, regulations and programs for Indians embody legal privileges and a set of economic preferences in the form of subsidies (health, education, housing, environment, subsistence, guidance etc.), monopolies, exemptions from taxes and safety regulations and other advantages. Much of this flow of government money goes to tribal members without regard to the wealth a tribe may own, from oil, mining, timber, gambling and so forth.

 

            Part of the extensive web of Federal regulation and programs affecting Indians, the US Code Service has 1 1/2 volumes devoted only to Indians. A multitude of other statutes applied to them are scattered through the other volumes. These laws and regulations affect Indians' status, rights, entitlements, privileges, immunities, government and other things. Of course, certain rights and privileges are expressions not of policy but of relations fixed by treaty, mainly relating to land ownership and preferential rights to hunt on public land, fish in public waters and engage in other uses according to "aboriginal title," based on uses before treaties were entered. Essentially, the treaties confirm reservation land titles and covenants that supplemented the payments made when the tribes ceded the rest of the territory that they had occupied or over which they had roamed or where they had lived.              

 

            Over the centuries, although many policies have changed, one has not. For over two hundred years a Federal statute (now 25 USCA, §177) has forbade the sale of tribal land without permission of the United States.

 

            On many matters, a tribe may not be sued without permission of the United States. In the words of the Court of Claims: "The Tulalip tribal community is a ward of the United States, deemed by the law not to be competent in administering its affairs with regard to the reservation land." Carlson v. U.S., Ct. Cl. #308-75, May 18, 1977

 

            When descendants of slaves of the tribe (who were not of tribal blood) sought to vote in tribal elections and to share in Indian benefits programs, on the basis of a treaty of 1866 that related to the slaves' emancipation, their claim was dismissed on the ground of tribal immunity. Nero v. Cherokee Nation, 892 F.2d 1457 (10th Cir.,1989) Tribal immunity also barred a claim by a woman and her daughter. The woman was a member of the tribe, married to a non-member. The claim objected to a tribal ordinance that denied membership to offspring of women who marry outside the tribe but granted it to the offspring of men who did. Santa Clara Pueblo v. Martinez, 56 L. Ed. 2d 106 (1978)

                                   

            The Supreme Court has ruled that the Indian treaties are to be construed as the Indians themselves would have understood them when they were entered, and to be construed in the Indians' favor. Washington v. Fishing Vessel Assn., 61 L.Ed.2d 823, 839 (1979) For example, the way that the Indians in 1855 would have understood the treaty terms is now construed to include the use of contemporary technology for fishing, such as fiberglass boats and gasoline engines. In 1854-55, several treaties were entered, covering the area that is now the State of Washington. These treaties gave the signatory tribes, in addition to the exclusive rights to fish on their own lands (the reservations), "the right of taking fish at usual and accustomed grounds and stations...in common with all citizens of the Territory." This right has been interpreted to mean not only equal access opportunities and a right to a share of the catch according to the proportions of the population - Indian and non-Indian - but, after taking what would be used for subsistence and ceremonies, to take for commercial use one half the total catch.

 

            Unsettled questions arise from practices that were harmless when the rights on which they were based were established (most of them about a century and a half ago) but that now conflict with measures (e.g., zoning, safety, growth management, environmental protection (logging, killing whales)) undertaken to organize the lives of a large, dense population using technology far different from when the rights were established.

 

            The 1995 Federal budget provided about $4 billion for Indian tribes and programs. Income tax benefits relating to Indians on reservations include those provided in the form of tax credits to employers for employing Indians on a reservation and fast write offs for reservation property.                                 

 

            The economic preferences include the Indian Environmental General Assistance Program Act of 1992, providing grants to tribes, and authorizing $15 million for each of the four years 1995-98 (42 USC, sec. 4368b), and the Native American Programs Act of 1974, providing for grants of money to tribes "to regulate environmental quality." 42 USC, sec. 2991(d)(1).

 

            Most of the U.S. tribes, formerly even more nomadic than are so many Americans today, now are encouraged to live on reservations. For the tastes of many, much of that land is unappealing as a place to live. Present policies encourage Indians to live on reservations but restrict the occupants' rights to choose how they treat their land: whether as a place to live, for commercial uses or for sale or lease.

 

            Carrots, not sticks, these incentives are the preferences and subsidies provided primarily to those who live on a reservation. By dealing with Indians through their tribes, as to both rights and largess, U.S. policy tends to induce Indians to continue to cleave to their tribe, rather than to drift away from it - as members of the tribal clans of the Campbells and McDonalds have done - into other forms of association. Identification of tribe with reservation tends to tie the members to the reservation. Consanguinity, tradition and money tie the members to the tribe, public policy ties the tribe to the reservation. Thus the reservation holds its members as residents.

                       

            The segregating pressure of the direct economic incentives is supplemented by the system of inheritance, determined not by an individual's testamentary choice but by some proportion of descent from a certain race. There is no estate tax. Tribal government sets the prescribed fraction of blood. This race-based system augments segregation by imposing a system of entail, a restriction on land ownership transfer that for centuries tended to keep the European social classes from overlapping. Two hundred years ago, we Americans abolished entail as an unfair restriction on personal freedom. But we have kept it for Indians.

           

            The supervised subsidies make a welfare dependency. For those who can show the combination of the required minimum inherited Indian blood and membership in a rich tribe the inherited rights tend to make a rentier class: Those who receive a share of:

 

                        (a) Rents from gambling casinos, billboards, resorts or farms;

                        (b) Investment income from timber sales and oil or mining royalties;

                        (c) Portfolio returns from accumulated income that has been invested;

                        (d) Claims proceeds from cities and states;

                        (e) Payments from private entities, such as boat docks and marinas located on shores to which treaty fishing rights attach; or

                        (f) Profits from stores that sell tax-free cigarettes or fireworks (forbidden as dangerous off the reservation).

                       

            Among Americans whose judgment deserves respect, few think that Indians are not yet far enough removed from the level of civilization on which they formerly lived to be able to stand on their own feet. They can perform adult roles and need not be protected from themselves by remaining under the guardianship of Uncle Sam.

                       

            The certain flow of inherited money demeans, weakens and corrupts those who receive it. An analogy may be seen in those whose prosperous parents or grandparents make them beneficiaries of lifetime income from trusts. With nothing either required or expected of them, denied power and responsibility, facing a never-ending flight of future checks, they receive security and scorn. As a self-fulfilling prophesy, one treated as a child behaves as a child. The combination of an assured, unearned income, no necessity to work and the vocational contempt that those who provided the income imply - and observers display - probably has made as many men alcoholics as have heredity, convivial customs and sustained stress.

                                                           

            Exercise of the privileges and preferences leads to socially harmful practices.  Examples are: (1) the sale of tax-free cigarettes - harmful to health; (2) sale of dangerous fireworks - risk of injury; (3) display of giant billboards - environmental harm, and (4) commercial gambling near where people live - supports some criminals and parasites and, more important, tends further to impoverish the poor; in the checkout line for groceries, look at the obvious economic status of those who buy the lottery tickets.

 

             Except for the direct subsidies and tax benefits, these practices are undertaken because they are profitable; and all are profitable because the surrounding American communities, deeming them against the public interest, restrict or forbid them. Economic privileges and exemptions for those who may not need them not only tend to corrupt those who get them but also are unfair to those who must pay for them (BIA, Indian Health Service and other programs and tax preferences).

           

            Voluntary segregation - free association - tends to be harmless, of course, and is a valuable right. However, when caused by public policy, segregation in itself tends to harm both groups that are separated from each other. Even without privilege or preference, segregated programs do harm. Sobering experience already has taught us that policies of "separate but equal" treatment tend not to be equal, and that inequality tends to be unfair to at least one group. Reflection on this question should be made unnecessary by our experience with Jim Crow.

           

            The policies of preference and segregation rest on two notions, one illogical and one absurd. First, the illogical. These preference policies depend on a belief that injustices committed against Indians' ancestors by some of the non-Indian Americans' ancestors who came from across the sea can and should be atoned by preferential treatment to those who carry some of those Indian ancestors’ blood. The mistreatment through the 17th-19th centuries is not regarded as roughly offset by the knowledge, technology, beliefs, products and services provided by one group and adopted or used by the other. One set of descendants is regarded as having inherited an entitlement, and the other set of descendants is regarded as having inherited a burden of debt - owed by Americans whose ancestors came from Europe, Africa, Asia and Latin America. In response to demands to be paid for their ancestors' mistreatment, non-Indians might reply: "We inflicted injustice for over a century, and imposed mistakes for longer than that. We took much of the land where your ancestors had been living. But in exchange we provided you with civilization, which you have accepted in ready abandonment of the Stone Age, in which your ancestors had lived for a long time. Was that a bad bargain?"

 

            Many Americans are disgusted by a practice of measuring a person's rights and privileges by proportions of inherited blood. The notion of a favored race violates American ideals. Those who support this policy seek to defend their position by arguing that because the ancestors of the favored race were mistreated by some of the ancestors of others living today, one set of descendants is obligated to pay the other set. On this ground, should Jews be paid by gentiles because the Jews' ancestors had been persecuted? If not, why not? Because the Jews were not persecuted severely enough or for enough centuries?            

           

            The other notion, the policy encouraging segregation, is absurd. It expresses the illusion, shared by many Indians and non-Indians, that Indians can and should live in their manner of long ago. The real world of their past, before their lives were touched by arrivals from abroad, is one they would not want and one to which the rest of us would not wish upon them. Those who support these policies seem to imagine a return to a romantic world that never was and never could be.

 

            Those captivated by that illusion may take pleasure from holding in their mind's eye the spectacle of quaint folk among tipis and wigwams. Dressed in moccasins, fringed deerskin and feathered bonnets, carrying an occasional dead animal and holding handmade baskets filled with nutritious roots, they stand around in mystical communion with their spirit world, their faces expressing wistful melancholy. Such an imagined sight gives a gratifying sense of connection with our (human) race's distant past, resembling what some people may feel on entering a grove of old growth cedars.

 

            A like approach based on nostalgia might undertake to deal with impoverished occupants of a logging town, around which the forest is gone, by encouraging them to stay there, supported by subsidies augmented by revenue from tourists who come to watch locals dressed in stagged tin pants, taking snoose and doing adagio movements with peaveys, crosscut saws and double-bitted axes.

 

            On a vacation trip, one may enjoy the Colonial Williamsburg restoration or the Isle of Marken, the recreated village on the Zuyder Zee where all are dressed like figures in a Vermeer and are making cheese or sweeping immaculate steps. Likewise, the China Folk Culture Villages, a theme park over the border from Hong Kong, where folk pretending to be members of ethnic minorities sit around in mock-ups of ethnic homes. But the people one sees in these theme parks are working as actors, and when their stint is done they doff their costumes and rejoin the surrounding community. By contrast, the romanticized Indians are expected to live the part.

 

            Some non-Indians seek guilt-relieved multiculturalism by the imagined prospect of Indians living as picturesque curiosities. This yearning is easier to indulge than facing Afro-Americans who may be shunned as menacing, if only by rudeness, or Jews who are insufficiently pathetic and may discourage one by superior attainments. Possessors of such an attitude may feel charmed to sponsor patronizing segregation in the tone of Tom Lehrer's patter song: "Take an Indian To Lunch."

 

            The notion is illusory that Indians can be enabled, or even compelled, to live like Adam and Eve, Tarzan, Rousseau's Noble Savage, Bomba the Jungle Boy or Rima, the jungle girl in Hudson's Green Mansions. Those who support policies pressing Indians to do so indulge in selfish sentimentality, recalling hippies of thirty years ago who asserted their liberation from what they felt to be an oppressive and stifling society by migrating to unoccupied rural haunts where they sought - briefly - to "live off the land."

 

            Present day Indians (like every one else) lack both capacity and inclination to live as hunters and gatherers in a culture that knows nothing else. Little support may be expected for a return to polygamy and slavery, or for sadism as entertainment and revenge. Public enthusiasm is lacking for religious ceremonies calling for human sacrifice (e.g., the Pawnee); for hours of darkness in irrational fear of demons and rational fear of being scalped in the night; for a lifestyle in which men engage in hunting and war, while women do the work; for summers eaten by mosquitoes and winters enduring hunger, wet, cold, boredom and smoke.

 

            The rest of us might reflect how we might feel if others pressed us to live as our ancestors did only three centuries ago - no paved roads, no travel but by foot or, for those who could afford it, by horse or sailboat, no refrigeration, plumbing, central heating, raincoats, forks, coffee, tea, chocolate or votes for any but white men who owned some real estate; also, strenuous outdoor manual labor for most, a 35-year average life expectancy and government headed by a distant king. And with all that, most settlers’ quality of life three centuries ago was enviable by contrast with that of Indians. 

           

            An argument for these current policies might be conceived, despite their violation of American principles, if they only succeeded. But they have been applied for long and have failed.

 

             American Blacks have done better though treated worse. Although the Indians' tribal organizations were battered, with some tribes extirpated and others disbanded, many remain as corporate entities, and most Americans with significant fractions of Indian blood know their tribal ancestry. Many in the west still live on the lands where their forebears roamed. By contrast, the Blacks' tribal organization was disintegrated before they arrived. Not only does no tribal identity remain among them, Blacks have lost knowledge of their distant ancestors' tribes. Most American Blacks having been descended from people living here for as many generations as the Bible records from David back to Abraham, regard themselves, understandably, as native Americans.

 

            American Blacks inherited nothing from ancestral tribal connection or by reason of race. Black men were called "bucks," not "braves." No image of a Black man has been put on our nickel and our one-cent piece. Americans do not disclose with pride that they have a Black ancestor as they do of an Indian. Non-Black Americans have not named children after admired Blacks, as they have for admired Indians, as did the parents of William Tecumseh Sherman. Orations have not hailed the noble Black man. Poets have not written in honor of Black leaders, as Whitman did of Osceola and Longfellow of the imagined Hiawatha. No Black names were given to cities (Seattle, Pontiac, Keokuk, Osceola, SingSing, Red Cloud), counties or states. No sports teams were named the Washington Blackskins or the Dartmouth, Cleveland or Stanford Blacks. No fraternal order of Blackmen was formed. No popular song was called "Negro Love Call." Not until recently have some white youths chosen Blacks among their heroes, yet for centuries some Indians (e.g., Uncas, Logan) have been idealized as heroes among non-Indians. No one speaks the African counterparts of leaving the war path for a powow to make medicine, smoke a peace pipe, bury the tomahawk and feed the pappoose. Some settlers whose character and ability were admired by the others thought well enough of Indian life to go and live among them (e.g., Sam Houston). Yet despite all that, why have Indians achieved so little in American society in contrast to Blacks, who impressed the settlers so much less? Was Parkman right in characterizing the Indians as resembling stone in being hard but brittle? How far is the difference attributable to public policies?

 

            Yet despite - and inde