(4 of 5)
It was to protect the Indians against usurpations that Congress in 1790 adopted the so-called Nonintercourse Act. This law provided that no Indian land could change hands without congressional approval. In fact, the act mainly reserved to the Federal Government those further immense acquisitions of Indian territory that would be made in the 19th century. The leader who set the pace and policy for the relentless official land-grabbing that accompanied western expansion was Andrew Jackson. The Tennessean vaulted to the White House on the reputation he had won partly by clearing the Southern states of Indians as a major general of the militia. As President, he continued the work with a determination suggested by his celebrated defiance of a landmark decision of the Supreme Court. In the ruling, Chief Justice John Marshall sought to protect the Cherokee tribe in Georgia against illegal encroachments and abuses by the whites. More broadly, Marshall also established the relationship of Federal Government and Indian as guardian and ward. But this particular law of the land Jackson scorned with his much remembered crack, "John Marshall has made his decision; let him enforce it." Later, Jackson used bribery and troops to acquire the Cherokee lands for the white man, and to drive the Indians across the Mississippi.
In most of the current cases, the Indians do not contend that the property they claim was taken by force or fraud. Instead, they argue that certain voluntary transfers of their land after 1790 never received the congressional ratification required by the old Non-intercourse Act. Because congressional approval is definitely required, and the lack of it is easily proved, the Justice Department has concluded that the Indians have a solid case in law.
Even so, it is impossible to imagine either the courts or Congress actually returning long-populated lands to the Indians. This would entail the dispossession of thousands of innocent owners and the unthinkable unraveling of large segments of ongoing society. At the same time, it is likely that the Indians will receive money for damages, and fair enough. It might even be feasible to award them some symbolic parcels of unpopulated lands.
It is clear, after all, that the Indians have some valid claim on the national conscience. They deserve above all else a chance to reclaim the identity, dignity, pride and esteem that have too often been taken away from them. Indeed, the mood of the Indians suggests that the recovery of such intangibles is not a small item in their renaissance goals. In the land cases, the Indians' willingness to settle out of court, even with the law on their side, forces one to wonder whether the stunning size of the claims has not been intended mainly to arrest the attention of the nation, to prick its conscience, to arouse a more thoughtful response to the larger Indian awakening. If so, the campaign has won a measure of success already. The proof: intervention by President Carter, at Justice's suggestion, in efforts to achieve settlement of the Maine case.