American Indian Heritage Month: Commemoration vs. Exploitation
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Wardship Doctrine

Title: John Marshall
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Wardship, in American Indian law and policy, is a legal doctrine, sometimes said to be based on opinions by U.S. Supreme Court Chief Justice John Marshall, that Native Americans live in "dependent domestic nations" and are therefore wards of the federal government. The Bureau of Indian Affairs was initially established to hold Indians' land and resources "in trust." Wardship status rationalized the establishment of Indian reservations and schools to assimilate Native Americans into mainstream U.S. culture. The concept of wardship also lay behind the storage of thousands of Native skeletal remains and burial artifacts in many federal and state research institutions. The idea of Native sovereignty in modern times has been developed in large part in opposition to wardship doctrines. Native Americans reacted to a social-control system that was so tight that in many cases (for example, if a will affected the status of allotted land) individual actions of Native American people were subject to approval by the Secretary of Interior.

The assertion of states' rights over Native territory in the southeastern United States provided the legal grist for an 1832 Supreme Court decision written by Chief Justice John Marshall. In Worcester v. Georgia, Justice Marshall wrote that inhabitants of Native nations had assumed a relationship of "pupilage" in their relations with the United States. Using this doctrine, which has no constitutional basis, the executive branch of the U.S. government, principally through the Bureau of Indian Affairs, has created a superstructure of policies and programs that has had a vast impact on individual Native Americans and their governments. Through the use of the plenary power of Congress, such policies as allotment divested much of the Indian estate between 1854 and 1934.

A concept of wardship also has been used since the midnineteenth century to construct for American Indians a cradle-to-grave social control system that was described during the midtwentieth century by the legal scholar Felix Cohen: 

Under the reign of these magic words ["wardship" and "trust"] nothing Indian was safe. The Indian's hair was cut, his dances forbidden, his oil lands, timber lands, and grazing lands were disposed of by Indian agents and Indian commissioners for whom the magic word "wardship" always made up for lack of statutory authority . . .

While Chief Justice Marshall's opinions have been used as a legal rationale for government policies that have treated American Indians as "wards," in the opinion of Robert C. Coulter, executive director of the Indian Law Resource Center, "There is nothing in the rulings of the Marshall Court [which] even remotely suggested that the United States could unilaterally impose a guardian-ward relationship on Indians, that it held trust title to Indian lands, or that, as trustee, it could dispose of lands without Indian consent."

Wardship as historically practiced by the Bureau of Indian Affairs differs markedly from the legal status of non-Native wards. Under most conditions, wardship is viewed as a temporary condition, with established standards for cession. Civil guardianship and custody law must allow people who have been deprived of their civil rights the means of regaining them in accordance with the due process clause of the U.S. Constitution. As developed by the BIA, however, Indian wardship has no standard for cession, and no ending date. An Indian is defined as a ward regardless of his or her accomplishments or other actions.

Bruce E. Johansen

Further Reading
Barsh, Russel, and James Henderson. 1980. The Road: Indian Tribes and Political Liberty. Berkeley: University of California Press.; Cohen, Felix. 1960. The Legal Conscience: The Selected Papers of Felix S. Cohen. Edited by Lucy Kramer Cohen. New Haven, CT: Yale University Press.

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