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4 TRIBAL WATER MANAGEMENT HANDBOOK . .. . I I I I I I . I I I I I I I I I This initial chapter will trace the main developments in federal Indian policy. It also will attempt to place Indian water issues in context by assessing the preeminent role thaI tribal management of water resources will play in the future. 1-2. LAYING THE FOUNDATION: THE LAWS AND COURT OPINIONS OF THE LAST TWENTY.FIVE YEARS Until approximately the end of the Civil War, federal Indian policy generally recognized the right of Indian tribes to remain separate. Indian treaties essentially guaranteed that tribes would possess in perpetuity sufficient land and resources to continue to be self-sustaining. Similarly, the treaties were intended to guarantee tribes that they would not be subject to incursions by the laws of the Slates. The treaties also recognized a duty of protection in the federal government, and coun decisions upheld a broad federal power over Indian affairs. Thus, the treaties amounted to a promise of a measured separatism: tribes would not be entirely separate nations within the larger country, but they would be substantially independent governments and free to govern themselves, outside of state law, according to their own traditions. Ultimately, the treaties promised that Indian reservations would be pennanent homelands. Federal Indian policy changed during the late nineteenth century. The idea of separatism waned, and on various fronts, the government pursued the policy of assimilation. The General Allotment (or Dawes) Act of 18871 opened many reservations to homesteading by non-Indians. Another leading example of the assimilationist policy was the creation of Indian boarding schools. The schools were established to instruct young Indian children in the ways of non-Indians and to hasten their exodus from the reservations. The movement toward assimilation was arrested during the 1930s and 1940s when John Collier was Commissioner of Indian Affairs. The Indian Reorganization Act of 19342 was the most notewonhy legislation adopted during Collier's period. That Act recognized tribal self-government and encouraged tribes to establish fonnal tribal institutions. Such encouragement, however, was shon-lived. The so-called "tennination era" of the 1950s was a bold policy shift revening toward assimilation. Over one hundred Indian reservations were tenninated-broken up and made subject to Slate laws. Tribal governments were disbanded and, in most cases, fonner tribal land was sold to non- Indians. Some reservations remained intact and the federal-tribal relationship was not dissolved, but state law was made applicable to many of these reservations in 1953 under a federal act called "Public Law 280."3 In many ways the tennination era was the most serious threat to tribal self-government in the entire history of federal-tribal relations. The appointment of Dillon S. Meyer as Commissioner of Indian Affairs was indicative of the tone of the era. Meyer was the fonner director of the War Relocation Authority, the detention camp system for Japanese-Americans. The modem era of federal Indian policy and law began sometime in the late 1950s or early 1960s. Indians were encouraged in 1958 when Interior Secretary Fred Seaton publicly announced in a radio address the end of coercive tennination.