Notice & Comment

Indian Affairs and Administrative Law, by Craig Green

“It does not seem a great task to attend to the business of directing the management of about three hundred thousand Indians . . . .”

— Dennis Cooley, Commissioner of Indian Affairs, 1866[1]

One of history’s greatest powers is to alienate the present, showing how different life used to be, while implicitly asking whether it might change again.  Using administrative law as an example, historical sources suggest a need to reconsider the marginalization of Federal Indian Law and Native Americans in modern legal culture.[2]  Some readers might question whether issues concerning Native Americans have any relationship with administrative law, but two social groups would disagree: lawyers from America’s first century, and Native Americans from various eras.

To start with the present, newspapers have described extraordinary COVID illnesses and deaths among Native Americans, alongside distorted population counts that cause public health assets to be systematically misallocated.[3]  Environmental and educational failures are also prevalent in Native American communities, accompanied by crises of housing and financial hardship.[4]  When similarly drastic social problems have affected non-Native populations, the governmental response has been characterized as a central issue of administrative law.[5]  Why should circumstances be viewed differently when Native Americans suffer?  Let’s return to that question after a bit of history.

Ten years ago, Samuel Rockwell wrote that ordinary understandings of the administrative state, administrative law, and federal governance are incomplete.  The Interstate Commerce Commission was not the first federal effort to regulate the economy, and nineteenth-century government did not address exclusively ministerial or consensus-oriented goals.  Whenever legal and historical scholars spread such mistaken beliefs about the past, they undervalue the significance of federal administrative law that occurred under the label “Indian Affairs.”[6]

Historians have used budgetary data to estimate that the intermingled costs of regulation, war, sales, and diplomacy concerning Native Americans ranged from 10% of United States expenditures in 1776 to 80% in the 1790s.[7]  Indian Affairs involved governmental institutions “at the federal, state, local, and tribal levels, [including] millions of citizens and noncitizens receiving employment, pensions, education, grants, job training, infrastructure, housing, health care, goods and services, cash payments.”[8]  Accordingly, given the historical influence of Euro-American migration and investment, “[n]o person in North America in the nineteenth century could have avoided regular contact with forms of government, public policy, regulation, and control.”[9]  Many Native American groups experienced interstate government through episodes of violence, exploitation, and displacement.  

No legal expert or historian could be entirely surprised by the federal bureaucracy surrounding Indian Affairs.  Yet those institutional structures and policies have not been treated as integral parts of “administrative law” as a field.  It is worth asking why not, and whether such exclusions matter.

One obvious explanation is race.  Countless mechanisms over time have described Native Americans as categorically separate from other racial groups.  One effect of that racial coding is to separate Indian Affairs from other applications of federal governance.  Native American issues are viewed as diplomatic and military, but not quite as foreign affairs or international wars.  Likewise, entities and policies of Federal Indian Law are manifestly bureaucratic, yet they are excluded from discussions of administrative law.  This represents an inherently racial difference, but it is also a territorial schism that constructed and applied racial distinctions.  Native Americans have frequently been described as living in “Indian Country,” on the “frontier,” or perhaps “out West.”[10]  American lawyers use that same kind of territorial vocabulary to put Native American concerns on their own shelf, as something very different from and less important than purportedly normal governmental concerns.

That kind of artificial separation fails to recognize the displacement and regulation of Native Americans as one of the federal government’s core historical functions.  America is built on land obtained through the process of dispossession, and the American government was built through that same process itself.  With full historical perspective, entities of administrative government were not only linked—as under conventional narratives—with newly complex forms of economic or social life during the twentieth century.  On the contrary, administrative government was from the start a legal mechanism that accomplished a wide variety of the country’s most politically urgent tasks.  To recognize the history of Indian Affairs as an essential part of administrative law offers deeper understanding not only of American governmental history, but also of the violent results that American government produced.[11]

Craig Green is Professor of Law at Temple University Beasley School of Law.

[1] Stephen J. Rockwell, Indian Affairs and the Administrative State in the Nineteenth Century, at vi (2010).

[2] Cf. Judith Resnik, Dependent Sovereigns: Indian Tribes, States, and the Federal Courts, 56 U. Chi. L. Rev. 671 (1989) (criticizing inattention to Native American issues in a different field of law).

[3] E.g., Kate Conger et al., Native Americans Feel Devastated by Illness, but Overlooked in Data, N.Y. Times, July 31, 2020, at A5.

[4] E.g., Priya Krishna, How Native Americans Are Fighting a Food Crisis, N.Y. Times, Apr. 14, at D1.

[5] The New Deal and Great Society are useful examples.  See Daniel T. Rodgers, Atlantic Crossings: Social Politics in a Progressive Age (1998);Julian E. Zelizer, The Fierce Urgency of Now: Lyndon Johnson, Congress, and the Battle for the Great Society (2015).

[6] Rockwell, supra note 1, at 2–5, 15–18 (discussing works by James Q. Wilson, Daniel Carpenter, John Rohr, Alexis de Tocqueville, William Novak, Peter Onuf, Jerry Mashaw, Max Edling, Stephen Skowronek, Theda Skocpol, Richard John, and others).

[7] Id. at 48–49.

[8] Id. at 37.

[9] Id. at 37; see also Gregory Ablavsky, Administrative Constitutionalism and the Northwest Ordinance, 167 U Pa. L. Rev. 1631 (2019); cf. Paul Frymer, Building an American Empire: The Era of Territorial and Political Expansion (2017).

[10] For a strident critique of Euro-Centric language, see James H. Merrell, Second Thoughts on Colonial Historians and American Indians, 69William & Mary Q. 451 (2012).

[11] See John P. Bowes, Land Too Good for Indians: Northern Indian Removal (2016); Claudio Saunt, Unworthy Republic: The Dispossession of Native Americans and the Road to Indian Territory (2020); cf. Jeffrey Ostler, Surviving Genocide: Native Nations and the United States from the American Revolution to Bleeding Kansas (2019).