William & Mary Law Review


"[F]rom the very moment the general government came into existence to this time, it has exercised its power over this unfortunate race in the spirit of humanity and justice, and has endeavoured by every means in its power to enlighten their minds and increase their comforts, and to save them if possible from the consequences of their own vices."

In 1846, in United States v. Rogers, the Supreme Court blithely announced the above vision of the history of Indian-United States relations. The first part of the quote describes Indian people as a race and an inferior one; the second part describes a positive and paternal federal relationship to this race. As even the most casual student of American Indian history knows, this vision was more fantasy than reality, more desire than description. Although such fantasies are commonplace in Indian history, in this case the statement signaled a shift in federal Indian law and policy, heralding a move from viewing Indian tribes as sovereign governments to viewing them as collections of individuals bound together by ethnicity. As governments, tribes posed a legal barrier to federal interference with their members. Although the federal government could wage war against them, could demand unfair agreements from them, and could usurp their property, they were still governments, and thus their members and territory were subject to tribal, not federal, authority. By redefining Indians as individuals joined not by politics but by race, the federal government could assert a new kind of power: the power to breach tribal boundaries and regulate their members in order to "enlighten their minds and increase their comforts" and "save them ... from the consequences of their own vices."2 What "humanity" demanded then was not that tribes be treated, as far as possible, according to the law of nations but that Indians be treated as subjects in need of guidance to fully incorporate into the American mainstream.

The decision of the Supreme Court in United States v. Rogers did not initiate this change. It was instead the product of a growing movement to increase federal power to regulate Indian lives. This movement was tied to such diverse factors as the bureaucratic centralization of the Indian Department, the emergence of the science of ethnology, and the debates over American identity in the face of increasing immigration to the United States and international conflicts over the North American continent. The success of this vision in the Supreme Court was fueled by distortions of law and fact ranging from mischaracterization of the role of white men in Indian country to the fact that the case was moot at the time it was decided. By memorializing the vision of this movement in law, however, the Rogers decision provided it with powerful legal and moral ammunition in ways that continue to resound in the courts and on Indian reservations today. In this Article, I use Rogers as a lens through which to examine the nature and origins of this shift.