American Indians in 1716

At the beginning of the eighteenth century, Indian nations were interacting with many European nations which had invaded the Americas and had claimed for themselves Indian land. These nations included England, France, Spain, Holland, and Sweden. The century was characterized by European exploration to establish their ownership claims and to search for riches, the establishment of European colonies, and development of the fur trade.


In New Mexico, the Ute and Comanche visited several Spanish settlements. The Spanish feared that the Indians were checking out their defenses. In a preemptive strike, Spanish soldiers attacked a Comanche and Ute village in the San Antonio mountains. Many of the captured Indians were sold as slaves.

In 1680, the Pueblos in New Mexico had revolted against the Spanish and driven them out of the region. Unfortunately, a decade later the Spanish had returned and a number of Tewa fled from their pueblo in New Mexico and sought refuge among the Hopi in Arizona. Here they had established the pueblo of Hano on First Mesa. In 1716, a Spanish army under Governor Felix Martinez invaded the Hopi territories in Arizona in an attempt to make the Tewa refugees return to their pueblos in New Mexico. At First Mesa in Arizona, the Tewa in the village of Hano refused the Spanish request. Feeling that the climb to the top of the mesa to capture the Tewas would be costly, Martinez ordered his soldiers to destroy the Tewa crops and to kill Tewa livestock.

In New Mexico, some of the people who had fled from Jemez Pueblo following the Pueblo Revolt of 1696 returned to the village from Walpi Pueblo in Hopi country.

In Arizona, the Sobaípuri cut their ties with the Hopi with whom they had traded during trade fairs on the San Pedro River.

In Texas, a Spanish missionary party of 75 people, including 6 Querétan missionaries, reached the site of the abandoned Mission of San Francisco de los Texas. Four leagues inland from this site they established the Mission of San Francisco de los Neches. This mission was intended to serve the Neches, Nabedache, Nacogdoches, and Nacono. Eight or nine leagues northeast of the new mission, they also established another mission for the Hainai which was called the Mission of Nuestra Señora de la Purisima Concepción. A third mission, Nuestra Señora de Guadalupe, was established for the Nacogdoche and Nacao. A fourth mission, San José de los Nazones, was established for the Nasoni and Nadaco.

In Alabama, the Spanish government sent agents to the Lower Creek towns in an attempt to entice them to resettle in north Florida. Archaeologist Brent Richards Weisman, in his book Unconquered People: Florida’s Seminole and Miccosukee Indians, reports:

“Spanish timing was perfect: the Lower Creeks were still on the move following their failed attempt to drive the British out of Carolina in the Yamasee War.”


In Mississippi, the French, in retaliation for the killing of four traders, sent a force against the Natchez. The French demanded that the Natchez give them the heads of those responsible for the deaths of the traders. Natchez leader Petit Soleil returned with only three heads. The French then killed four Natchez hostages.


English colonists in South Carolina, with their allies the Cherokee and the Creek, attacked the Yamasee.

In Massachusetts, the Nantucket complained to the General Court about the injustice and oppression which they suffered from their English neighbors. They asked that the island be placed in another county so that their legal conflicts with the English could be heard elsewhere. The Court responded by having two judges on the mainland hear their disputes.

American Indians in 1616

During the first part of the seventeenth century, the European invasion of North America was making the transition from exploration to colonization and exploitation. In his book Laboring in the Fields of the Lord: Spanish Missions and Southeastern Indians , archaeologist Jerald Milanich describes the reasons for the European expansion:

“The driving force behind these initiatives was a desire for wealth: precious stones or metals, fertile lands suitable for productive plantations, human populations to be sold into slavery, and animals and plants that could be hunted or harvested and exported.”

Briefly described below are some of the Indian events of 1616.


One of the few Indian women whose name is known to most Americans is Pocahontas, a Powhatan woman. In 1616, the English colonist John Rolfe took Pocahontas to England where she was used as a part of the Virginia Company’s campaign to gain support for their American colonies. In his book Lies My Teacher Told Me: Everything Your American History Textbook Got Wrong, historian James W. Loewen points out:

“Pocahontas stands as the first and almost the last Native to be accepted into British-American society, which we may therefore call ‘white society’, through marriage.”

He goes on to point out that after Pocahontas interracial couples are accepted in Native society, but not in Anglo society.


One of the items of European technology which provided Europeans with military superiority was the gun. In 1616, the English instructed some Powhatan warriors in the use of the new snaphance muskets which used a flint on steel ignition. According to historian Ian Steele, in his book Warpaths: Invasions of North America:

“This musket instruction was Opechancanough’s price for allowing any Christian instruction.”

Opechancanough, who was probably Pocahontas’ uncle, was one of the important Native leaders at this time.


The English colonists in Jamestown, Virginia found that their food crops were low because they had been energetically promoting the raising of tobacco instead of food crops. They sent for their annual tribute of corn from the Chickahominy. The Indians claimed that they had already paid the tribute. The next day, the English opened fire and killed 20-40 Indians.

The English were unaware of the fact that they had been manipulated into this incident by Opechancanough who had advised the Chickahominy to resist the English demands and who had told the English that the Chickahominy were killing English cattle and swine.


As contact with the Europeans intensified, so did the diseases which they brought with them. These diseases—smallpox, cholera, influenza, measles, and others—were new to the Indian populations.

The first of three epidemics struck the Indians of New England. It is estimated that 75% of the population died between 1616 and 1619. The epidemics swept from Cape Cod to the Kennebec River in Maine. The epidemics started after an English party wintered at the mouth of the Saco River.

It is estimated that prior to the epidemics, there were 24,000 people living in Indian communities affiliated with the Wampanoag confederacy led by Massasoit.

In Massachusetts, the Massachusett were nearly exterminated.

It is not known what the actual disease was that caused this epidemic. Various writers have suggested bubonic plague, smallpox, and hepatitis A. There is strong evidence supporting all of these theories.

Spanish Mission:

In Georgia, the Spanish mission Santa Isabel de Utinahica was serving the Timucua.


In Florida, Timucua chief Enecape gained control of the villages which had been in an alliance under chief Outina. Archaeologist Jerald Milanich, in his book Laboring in the Fields of the Lord: Spanish Missions and Southeastern Indians, reports:

“This power shift was probably a result of disease-related population decimation in the northern sector of the alliance, that portion closest to the sixteenth century European settlements at St. Augustine and Ft. Caroline.”

The Spanish sometimes referred to this alliance as the Agua Dulce (Sweet Water) Indians.


Who Owns the Land?

When the Europeans first blundered into the Americas, they found a land that was already occupied and developed. In 1532, Spanish judge Francisco de Vitoria declared that non-Christians could own property and therefore Indians may have title to their land. After the creation of the United States at the end of the eighteenth century, the issue of the ownership of Indian lands continued to be debated in the court system.


The English adopted the concept of vacuum domicilium which meant that if they felt that the lands were “vacant”—lacking land development (meaning fenced fields) and permanent structures (meaning English-style buildings)—then they could be occupied and possessed without any concern for actual Indian ownership or use of the land. From the English viewpoint, only land that is tilled, fenced, and built upon was owned.

In listing the legal fictions that form the basis of American law regarding American Indians, attorney Walter Echo-Hawk, in his book In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided, includes these:

Native land is wasteland or a savage wilderness that no one owns, uses, or wants and is available for the taking by colonists—therefore any aboriginal interests in the land are extinguished as soon as British subjects settle the area.

Native peoples have no concept of property, do not claim any property rights, or are incapable of owning land.

 Christians have a right to take land from non-Christians because heathens lack property rights.

There is an assumption that the European use of the land had a higher value than Native use. Anthropologist Samuel Wilson, in his book The Emperor’s Giraffe and Other Stories of Cultures in Contact, reports:

“The idea that Europeans might put the land to higher use required downplaying how the native people were using it.”

Since the Natives were already farming the land, particularly the best land, this meant that the English had to construct stereotypes of the Indians which portrayed them as nomadic hunters who did not modify or improve the land.

One of the common misconceptions is that Indian nations had no concept of land ownership at this time. Law professor Rebecca Tsosie, in her chapter in American Indian Nations: Yesterday, Today, and Tomorrow, writes:

“While it is true that no Native people employed the concept of ‘fee simple’ or maintained written land titles prior to the arrival of the Europeans, there is a rich tradition of ‘rights’ and ‘responsibilities’ that accompanies Native narratives about the land. In the broader sense of ‘ownership,’ Native peoples most definitely maintained political and cultural claims to their ancestral lands.”

Preparing the Lawsuit:

In 1763, the British Crown had issued a decree which prohibited non-Indian settlement west of the Appalachians. Ignoring this decree, many Americans, including George Washington, had speculated in land in the western region. While British law held that these land purchases were illegal, after the formation of the United States questions about legal titles were clouded. Did Indians and/or Indian nations have the right to sell their land to speculators, or did the United States now own this land and Indians simply held an occupancy right?

Attorney Robert Goodloe Harper set out to clarify the land speculators’ title through the court system. To do this he contrived a controversy which he could bring to the Supreme Court. Walter Echo-Hawk reports:

“First, he selected all of the players in the lawsuit—not only the plaintiff, who Harper would represent, but he also hand-picked the defendant and hired the defendant’s attorneys who were paid by the land companies and told what to do throughout the litigation.”

Thomas Johnson was selected as plaintiff because of his close ties to people admired by Supreme Court Chief Justice Marshall. The defendant—called “pretend defendant” by Walter Echo-Hawk—was William McIntosh (M’Intosh). Walter Echo-Hawk writes:

“M’Intosh was picked because of his willingness to collude and play ball with the law.”

With regard to arguing the case before the Supreme Court, Walter Echo-Hawk writes:

“Harper selected the great Daniel Webster—the most eloquent and powerful orator of the day—as his co-counsel to assist in arguing the case on behalf of Johnson, and then he picked less-qualified attorneys to argue M’Intosh’s case, paid them, and told them what to say.”

The Lawsuit:

Before the Supreme Court, Harper and his team argued that any British prohibition of land sales had been invalid as the Indian tribes owned the land. McIntosh’s attorneys, coached by Harper, argued only that land sales had been barred by British law.

While this case involved American Indians and its outcome would impact the lives of Indian people for the next two centuries, there were no Indians in the courtroom and it is doubtful that any Indians even knew it was being argued. Harper described Indians as “savage tribes” and the attorneys for McIntosh saw them as “an inferior race of people, without the privileges of citizens.”

Walter Echo-Hawk writes:

“Everyone’s use of racial invectives in Johnson leaves us to ponder the Court’s ability to render an impartial decision concerning Indian land rights. The avowed racist views expressed by the Court and the parties assured that those rights would not be represented.”

In the 1823 decision Johnson and Graham’s Lessee versus McIntosh the Supreme Court declared that the United States has the power to extinguish the Indian right of occupancy and that absolute ultimate ownership of the land lies with the United States. The case involved valid title to the land: Johnson claimed that title comes from the Piankshaw while McIntosh claimed that title comes from the federal government. In his book Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands, law professor Lindsay Robertson reports:

“The indigenous owners were converted into tenants on their lands and denied the right to sell their ‘leases’ on the open market.”

Law professor Bruce Duthu, in his book American Indians and the Law, writes:

“The case required a ruling on the nature of Indian property interests to determine which of the non-Indian parties held superior title to the lands in dispute.”

The Court found that the Discovery Doctrine gave sovereignty to England and then to the United States. Indian tribes, under this Doctrine, have a right of occupancy to the land. Christian nations, such as England and the United States, have superior rights over the inferior culture and inferior religion of the Indians. In reviewing the long history of land claims, Chief Justice John Marshall wrote:

“It has never been contended that the Indian title amounted to nothing. Their right of possession has never been questioned.”

According to the Court:

“The tribes of Indians inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country, was to leave the country a wilderness.”

Indians, found the Court, had been compensated for their lands by having Christianity and civilization bestowed upon them.

With regard to the sovereignty of Indian nations, the Court declared:

“They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it.”

In their book Tribes, Treaties, and Constitutional Tribulations, legal historians Vine Deloria and David Wilkins summarize McIntosh this way:

“the culture and religions of indigenous peoples was judged inferior to that of Europeans, civilization and Christianity were offered them as compensation for their lands, discovery gave title to a government against other Europeans, the Indians were still the rightful owners of the land, but their sovereignty was reduced by the European agreement to restrict the sale of land to the discovering country.”

Steven Newcomb, Director of the Indigenous Law Institute, in a column in Indian Country Today, writes of the legal doctrine expressed in McIntosh:

“Based on this bizarre theory, our very existence as Indians is now assumed to be subordinate to, ruled by, and possessed as property by, the political and legal successor of the first Christian ‘discoverers,’ namely, the United States.”

Newcomb also writes:

“From the perspective of Western Christendom, it was the ‘god-given’ right of all Christian sovereigns to locate and dominate (“possess”) all non-Christian lands on the planet.”

Richard West and Kevin Gover, in an article in The Impact of Indian History on the Teaching of United States History, see Justice Marshall’s decision as practical:

“The title of every landowner in the country would have been clouded had the Court failed to acknowledge the discovery doctrine.”

With regard to the importance of McIntosh, attorney Glenn Morris, in a column in Indian Country Today, writes:

Johnson v. M’Intosh is the opinion upon which the entirety of federal Indian law (and U.S. property law) is constructed. Every destructive opinion by the Supreme Court, every destructive policy of Congress or the president to this day, is made possible because of Johnson v. M’Intosh.”

With regard to Chief Justice John Marshall’s opinion, Walter Echo-Hawk writes:

“The bulk of his opinion went on to strip the legal title to land away from American Indian tribes in North America and to justify what amounted to judicial theft of Indian land.”

Georgia, the Cherokee, and the Execution of Corn Tassel

The United States has never been particularly comfortable with the idea of Indian nations and Indian people within its territorial boundaries. Like the British before them, the United States viewed Indians as impediments to “progress” who needed to be removed to make way for non-Indian economic development. At the beginning of the nineteenth century, President Thomas Jefferson recommended that all Indians be removed from the United States and given reservations west of the Mississippi River. In 1830, this recommendation was translated into reality with the passage of the Indian Removal Act. In Georgia, the greed for Cherokee land, coupled with racism, resulted in the execution of Corn Tassel, a Cherokee man.

What Came Before:

In 1827, the state of Georgia passed a series of resolutions to take control of Indian lands within the state. The resolutions insisted that the Cherokee had no legitimate claims to land within the state and declared that Georgia law was to apply to the Cherokee. Theda Perdue and Michael Green, in their book The Columbia Guide to American Indians of the Southeast, report:

“Denouncing the Cherokee constitution as outrageous and claiming that the establishment of a sovereign Cherokee republic was unconstitutional, the legislature announced that Georgia had sovereignty over all the lands within its boundaries and asserted that it could take possession of the country occupied by Indians whenever and by whatever means it pleased.”

Georgia denied the validity of treaties with the United States that recognized tribal sovereignty and land rights. Georgia also demanded that the federal government honor the Compact of 1802 and remove the Cherokee from Georgia.

President Adams warned Georgia that these actions violated the treaties between the United States and the Indians. Furthermore, the United States, according to the President, would use military force to uphold these treaties. In response, Georgia called up its militia and occupied some Creek towns. The federal government backed down from any confrontation.

In 1828, the Georgia House of Representatives passed a resolution requesting the governor to ask the president of the United States to remove all Indians from the state.

In 1828, the state of Georgia also adopted legislation which extended state control over all Cherokee lands within the state. The new legislation declared all Cherokee laws to be null and void and prohibited Indians from testifying against non-Indians. As a result, groups of non-Indians invaded Cherokee country, taking Cherokee cattle and horses, assaulting those who resisted, and taking possession of Cherokee homes. According to the law, all Cherokee were to leave the state by 1830 unless they were given permission to stay by the Georgia legislature.

The following year, the state of Georgia enacted legislation which declared

“that no Indian or descendant of an Indian residing within the Creek or Cherokee nations of Indians, shall be deemed a competent witness in any court of this state to which a white person may be a party.”

Anthropologist Charles Hudson, in his book The Southeastern Indians, describes the result:

“In effect, this gave the whites – any white – a license to steal and do mayhem.”

In preparation for removal, President Andrew Jackson in 1830 ordered federal troops to be withdrawn from Cherokee lands in Georgia, leaving the Cherokee at the mercy of state residents at the time when Georgia was surveying the lands to open them for non-Indian settlement. At this same time, the Georgia Guard was created. Walter Echo-Hawk, in his book In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided, reports:

“To enforce Georgia’s growing body of anti-Cherokee laws, a special paramilitary force was created—the infamous Georgia Guard. Its mission was to enforce state law within the Cherokee Nation, arrest violators, ‘protect’ Cherokee gold mines, and otherwise harass and intimidate the Indians.”

In a report for the Niles Weekly Register, Colonel Gold (whose daughter was married to Elias Boudinot, the editor of the Cherokee Phoenix) reported that the Cherokee afford

“strong evidence that the wandering Indian has been converted into the industrious husbandman; and the tomahawk and rifle are exchanging for the plough, the hoe, the wheel, and the loom, and that they are rapidly acquiring domestic habits, and attaining a degree of civilization that was entirely unexpected, from the natural disposition of these children of the forest.”

The Cherokee National Council met in New Echota even though state law forbade it. The council unanimously adopted resolutions protesting removal.

The Cherokee sent a delegation to Washington, D.C. to present their grievances against the state of Georgia. The delegation included Richard Taylor, John Ridge, and William Shorey Coodey. In Washington, however, the Secretary of War refused to recognize them as a legally constituted delegation as they had not come with authority to discuss a removal treaty.

In Washington, D.C. President Andrew Jackson delivered a special message to the Senate. In his book Indian Removal: The Emigration of the Five Civilized Tribes, Grant Foreman reports:

“He frankly announced himself as the champion of Georgia in her controversy with the Indians and as frankly disclaimed any intention to enforce the treaties made by the government with these Indians for their protection, wherein they conflicted with the pretensions of Georgia.”

In 1830, the Georgia state governor issued a proclamation prohibiting Indians from taking any more gold from their lands. According to the proclamation, the state had the right to all gold and silver found on Indian lands.

Corn Tassel:

To deal with the state of Georgia, Cherokee chief John Ross hired the Georgia law firm of Underwood and Harris and the Baltimore law firm of William Wirt. Wirt was a former attorney general and was described as “the country’s greatest expert in Indian law.” Wirt urged the Cherokee to file a case which would test their rights in the Supreme Court.

The test case involved Corn Tassel (Corn Tassels) who killed another Indian on Cherokee land. In spite of Cherokee jurisdiction, Corn Tassel was tried in a County Superior Court, found guilty, and sentenced to hang. Attorney Walter Echo-Hawk reports:

“He was prosecuted under a set of state laws enacted to harass, intimidate, and drive the Cherokee Nation out of Georgia. The Georgians wanted Cherokee land. And they wanted the Cherokee to leave.”

The case was appealed and a panel of state judges found that the state had full criminal and civil jurisdiction over the Indian tribes within their boundaries. Furthermore, the panel found that the British prior to the American Revolution had held title to the land by right of discovery. In the appeal, the Cherokee argued that the extension of Georgia laws over the Cherokee was unconstitutional as this violated the Treaty of Hopewell which was the supreme law of the land. The state, on the other hand, asserted that the treaty was void because the federal government had no right to treat with Indians within the limits of the state. According to the state, the Cherokee held no political or property rights and that Indian tribes were inferior. Walter Echo-Hawk reports:

“Their Tassels opinion espoused a dark southern view of Indian rights—an amoral world where aboriginal affairs are governed exclusively by the states without federal interference, in which Indians are an underclass; a place where treaties are void and tribes hold no political, property, or human rights.”

Wirt appealed to Chief Justice John Marshall who granted a writ of error and ordered the state to appear before the Supreme Court in Washington. Instead of complying, The Georgia legislature was called into special session and voted to defy the writ and to hang Corn Tassel. Governor Gilmor told the legislature that the Supreme Court had no jurisdiction to intrude on Georgia and he promised to disregard orders from the Court. Walter Echo-Hawk reports:

“Since Corn Tassels’s appeal to the United States Supreme Court had been granted, his execution should have been stayed. However, defiant and fearful Georgia could never allow the high court to review the state’s spurious race laws.”

Two days later Corn Tassel was hung. Walter Echo-Hawk reports:

“Corn Tassels had to die posthaste so Georgia could safely evade federal judicial review and continue its repugnant policies without outside interference from Washington do-gooders.”

Ancient America: Idaho, 6000 BCE to 3000 BCE

The present-day state of Idaho is a totally arbitrary area defined by political concerns unrelated to American Indian history. With regard to American Indian cultures, Idaho straddles two distinct culture areas: (1) the Plateau in the north and (2) the Great Basin in the south. The climatic changes from 6000 BCE to 3000 BCE impacted the Indian people in these two areas differently. In the Plateau area, this period is called the Middle Period by archaeologists. Briefly described below are some of the archaeological sites which date to this era.

Owl Cave: by 6000 BCE, Indian people were using Owl Cave as a site for the systematic killing of buffalo. According to archaeologist B. Robert Butler in the Handbook of North American Indians:

“Apparently, each of the Owl Cave kills resulted from a well-planned and coordinated undertaking in which herds of 30 or more Bison antiquus were induced or driven into the cave, dispatched with spear thrust into the body cavities, and then systematically butchered.”

The now extinct Bison antiquus is generally considered to be the ancestor to the modern Bison bison bison. This extinct species was 15% to 25% larger than the modern bison.

Centennial Mountains: by 6000 BCE, Indian people were hunting and gathering in the Centennial Mountains where they left behind hundreds of camp sites.

Quarry Sites: by 5800 BCE, Indian people were using a number of quarry sites along the upper Salmon and Pahsimeroi rivers. These are located at an elevation of 7,800 feet. Since not all stone can be used for making stone tools, sites where good stone can be easily obtained were very important.

Bernard Creek Rockshelter: by 5250 BCE, Indian people occupied the Bernard Creek Rockshelter in Hells Canyon.

Birch Creek: by 5200 BCE, Indian people were now living in the Birch Creek area. The climate at this time was arid and the lakes in the area had been reduced to intermittent marshes.

Kirkwood bar site: by 5100 BCE, Indian people were now living at the Kirkwood bar site in Hells Canyon.

DeMoss site: by 5000 BCE, Indian people had established a cemetery at the DeMoss site in the south-central portion of the state.

Root Plants: by 4400 BCE, the Indian people in the eastern Plateau Area (this would include what is today northern Idaho) were using root plants. Earth ovens were being used in processing these plant foods. By 3500 BCE, camas was in regular use in this area.

Village: by 4050 BCE, the Nez Perce established a village site on the Clearwater River. Economic activities at this time included salmon fishing.

Little Salmon River: about 4015 BCE, 22 people were buried at an Indian graveyard near the Little Salmon River.

Island Park Reservoir: by 4000 BCE, Indian people began to live in the Island Park Reservoir area.

Weiser River: about 3840 BCE, two women, and four children were buried in a mass grave near the mouth of the Weiser River.

Challis: by 3380 BCE, near present-day Challis, Indian people began using a buffalo jump to kill buffalo.

Burials: by 3200 BCE, in southwest Idaho, Indian people were buried with elaborate grave goods, including red ochre, olivella shells, large biface points, dog skulls, pipes, hematite crystals, and tools.

Corn Creek: by 3000 BCE, Indian people began living in the Corn Creek area.

The 14th Amendment

Following the Civil War in 1868, the United States adopted the Fourteenth Amendment as one of the Reconstruction Amendments. It was intended to deal with issues regarding the rights of former slaves.

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Following the adoption of this amendment, there were a few people who felt that it might be applied to American Indians and give them U.S. citizenship. Indians were born in the United States and under U.S. jurisdiction. Citizenship for Indians had several implications: (1) it might give them voting rights; (2) it would give them homestead rights; and (3) it would provide them with certain legal protections, such as the right to a trial. Well-aware that the amendment had been intended for former African American slaves, however, most people, particularly government officials, did not feel that Indian people were included in this amendment.

In 1870, the Senate Judicial Committee inquired into the effect of the Fourteenth Amendment on Indian tribes. The Committee declared that the Amendment was intended to eliminate the phrase “three-fifths of all other persons” which had described slaves in the Constitution and therefore does not change the status of Indians. The Committee concluded:

“To maintain that the United States intended, by a change of its fundamental law, which was not ratified by these tribes, and to which they were neither requested nor permitted to assent, to annual treaties then existing between the United States as one party, and the Indian tribes as the other parties respectively, would be to charge upon the United States repudiation of national obligations, repudiation doubly infamous from the fact that the parties whose claims were thus annulled are too weak to enforce their just rights, and were enjoying the voluntarily assumed guardianship and protection of this Government.”

In 1871, a federal district court in Oregon, in the case of McKay v. Campbell, ruled that the Fourteenth Amendment had not made Indians citizens.

One of the reasons that Indians were not considered U.S. citizens is that they were citizens of Indian nations and therefore, according to this line of reasoning, not under U.S. jurisdiction. However, not all Indians lived on reservations, and many of those who were living in urban areas no longer maintained any tribal connections. In 1873, a Washington territorial district court ruled that Indians could not become citizens by simply severing tribal connections. According to the court, citizenship for Indians required a naturalization act by Congress. In addition, the court ruled that the Fourteenth Amendment did not apply to tribal Indians.

In 1860, Congress had passed the Homestead Act which provided for the transfer of ownership of 80 acres of unoccupied public land in exchange for a nominal fee after five years of residence. Only U.S. citizens and aliens who were eligible to become citizens could apply for homesteads. Indians were not eligible to acquire homesteads as they were not citizens nor could they become citizens. In 1874, the Secretary of the Interior ruled that the Fourteenth Amendment did not give any land rights – such as homesteading – to civilized Indians since they had not been citizens when the Amendment had been passed. The Secretary ruled that only an act of Congress could give the benefits of the land laws to Indians.

Finally, in 1884 a case testing the Fourteenth Amendment and American Indians came before the U.S. Supreme Court. John Elk was a Ponca who had left the jurisdiction of his tribe and moved to Omaha, Nebraska. He owned a home, paid taxes, and was a member of the state militia. In Elk versus Wilkins the Supreme Court declared that Indi­ans were not citizens under the Fourteenth Amendment. While recog­nizing that Indians were born in the United States in a geographi­cal sense, they were not citizens just as children born within the United States of ambassadors or other public ministers of foreign nations were not citizens. According to the court, Indian tribes were

“alien nations, distinct political communities, with whom the United States might and habitually did deal, as they thought fit…The members of these tribes owed immediate allegiance to their several tribes, and were not a part of the people of the United States.”

The Court declared that citizenship must be directly bestowed upon the Indians by the United States. David Wilkins, in a column in Indian Country Today, writes:

“For the court, the only way for even solitary, urban-based American born Indians to become citizens under the 14th Amendment was to be naturalized by a treaty provision or congressional statute.”

According to historian Laurence Hauptman, in his book Tribes and Tribulations: Misconceptions about American Indians and their Histories:

“In the twilight zone of Indian existence, the Elk decision literally made the Indian a legal alien in his native land.”

Congress responded by passing a series of acts granting citizenship to Indians (see Indians 301: American Indian Voting Rights). In 1924 and again in 1940 Congress passed acts giving citizenship to all Indians. A number of states ignored both of these acts.

Ancient America: Idaho Prior to 6000 BCE

Archaeologists often refer to the era prior to 6000 BCE in North America as Paleo-Indian. This appears to have been a time when the people specialized in the hunting of big game. At this time, the Plateau area—roughly the area between the Rocky Mountains and the Cascade Mountains, had emerged from the effects of glacial ice.

Writing about the Southern Plateau in the Handbook of North American Indians, Kenneth Ames, Don Dumond, Jerry Galm, and Rick Minor report:

“People appear to have moved frequently; there is no evidence of dwellings or structures of any kind during this period, as there is also no evidence of food storage. Hunter-gatherers under these conditions can be expected to have quite low population densities.”

In looking at the earliest history of American Indians in what is now the state of Idaho, there are two major cautions: (1) Idaho is a totally arbitrary area defined by much later political concerns unrelated to American Indian history, and (2) the archaeological record is far from complete. There are large temporal gaps in our understanding of this early time period. Briefly described below are some of the archaeological sites from this time period.

American Falls: about 28,000 BCE (Before Current Era), Indian people near the American Falls on the Snake River were killing bison. Note: this early date is controversial and not accepted by most archaeologists.

Wilson Butte Cave: by 13,000 BCE, Indian people began using the Wilson Butte Cave in southern Idaho as a shelter. They were using bifacially worked points and blades.

Intermountain Stemmed Point Tradition: by 11,500 BCE, a hunting camp was established by Indians using what archaeologists call the Intermountain Stemmed Point Tradition.

Hatwai: by about 10,900 BCE, Indian people were fishing with nets at the Hatwai site (10NP143).

Burial: about 10,600 BCE, a young woman (17-21 years of age) died near the Snake River in the south-central part of the state. She was buried with a large stemmed biface, an eyed needle, a badger baculum, and a bone artifact. She was 5’2” tall and had regularly faced hunger as she was growing up. Salmon had provided some of the protein (possibly 10%) in her diet. Her diet also included processed meat, such as pemmican.

Shoup Rockshelter: by 10,460 BCE, Indian people were occupying the Shoup Rockshelter near Salmon, Idaho.

Owl Cave: by 10,250 BCE, Indian people were occupying Owl Cave. By 8850 BCE, Indian people living at Owl Cave were butchering and eating mammoth.

By 6000, BCE, Indians were using Owl Cave as a site for the systematic killing of buffalo. According to archaeologist B. Robert Butler in the Handbook of North American Indians:

“Apparently, each of the Owl Cave kills resulted from a well-planned and coordinated undertaking in which herds of 30 or more Bison antiquus were induced or driven into the cave, dispatched with spear thrust into the body cavities, and then systematically butchered.”

Cooper’s Ferry Site: about 10,050 BCE, a group of hunting people left a cache of tools in a circular pit at one of their regular camp sites along the lower Salmon River Canyon. The site is located on a small alluvial terrace about ten meters above the confluence of Rock Creek and the lower Salmon River. The tools included stone points and scrapers. Some of the tools had been used and then reworked to renew their cutting surfaces. Caching of equipment for future use was relatively common among nomadic peoples. In an article in American Antiquity, Loren Davis, Alex Nyers, and Samuel Willis write:

“In this manner, equipment manufactured for tasks that are specific to a particular time and place are stored in a designed holding facility. Equipment caches might also play a role as insurance or backup systems, where additional stores of tools are placed at strategic locations in the landscape as a low-cost, embedded aspect of moving in a landscape.”

They also write:

“Overall, the creation and use of equipment caches is intended to help solve problems of logistical mobility and improve efficiency in resource exploitation.”

By 10,020 BCE, Indian people at the Cooper’s Ferry site were using a variety of stemmed points, including those which archaeologists classify as Lind Coulee, Windust, and Cascade.

By 9400 BCE, Indian people with a Western Stemmed Tradition technology occupied the Cooper’s Ferry Site. Many archaeologists feel that the people who used the Western Stemmed Tradition technology were different from those who used Clovis technology.

By 9000 BCE, Indians from the Cooper’s Ferry Site were hunting in the Beaverhead Mountains. They were using Lind Coulee type spear points. Roy Carlson, in the Indian Art Traditions of the Northwest Coast, writes:

“The Lind Coulee Tradition is characterized by large stemmed projectile points, chipped stone crescents, and large steep scrapers.”

Bison and Veratic Rockshelters: by 8390 BCE Indian people at the Bison Rockshelter and the Veratic Rockshelter were using stone points which are pressure-flaked and fluted.

We’eptes Pa’axat: by 8200 BCE, Indian people were occupying the We’eptes Pa’axat (Five Eagles) site near present-day Lenore, Idaho. The site was being used intermittently for hunting and processing deer and mountain sheep as well as for manufacturing stone tools.

Redfish Overhang: by 8150 BCE, Indian people began to occupy the Redfish Overhang near Stanley, Idaho.

Note: the information in parenthesis following the name of the site is the Smithsonian Designation System. In this system of recording archaeological sites, the first number refers to the state; this is followed by letters which refer to the county; and then a number indicating its order in being recorded. Thus 5LP 10, means that the site is in Colorado (5th state when the states are listed alphabetically), La Plata County (LP), and was the 10th site recorded in La Plata county in the State Archaeologist’s office.

Ancient America: Nebraska Prior to 6000 BCE

Archaeologists often refer to the era prior to 6000 BCE in North America as Paleo-Indian. This appears to have been a time when the people specialized in the hunting of big game. Briefly described below are a few of the archaeological sites in Nebraska which date to before 6000 BCE.

La Sena Site: By 17,000 BCE, Indian people were butchering mammoth at the La Sena Site (25FT177) on the shore of Medicine Creek Reservoir in Frontier County. In a chapter in Medicine Creek: Seventy Years of Archaeological Investigations, archaeologists Steven Holen and David May write:

“We have suggested that humans were responsible for the high-velocity impact fractures on thick cortical bone and for the bone flaking.”

Jensen Site: By 11,000 BCE, Indian people were butchering mammoth at the Jensen site.

Allen Site: By 9000 BCE, Indian people had occupied the Allen site (25FT50). In his chapter in Medicine Creek: Seventy Years of Archaeological Investigations, archaeologist Douglas Bamforth reports:

“One striking aspect of the Allen site collection is the number of formal diversity of bone tools it contains.”

Among these tools are needles in varying thicknesses which suggest a variety of kinds of sewing. Animal remains include bison, deer, antelope, jackrabbit, cottontail, and prairie dog. In an article in Mammoth Trumpet, George Wisner reports:

“From the data emerges a portrait of small family groups, dating back as far as the Folsom age, tapping into a variety of resources in well-wooded and moist drainages.”

By about 6300 BCE, Indian people were using the Allen site as a summer camp. They were hunting bison, antelope, deer, rabbit, and birds. They were also eating fresh water mussels and fish. Their tool kit included concave based projectile points, scrapers, lanceolate and ovid bifaces, grinding and abrasive tools, drills, eyed bone needles, and awls.

Red Smoke Site: By 7000 BCE, Indian people occupied the Red Smoke site (25FT42). In her chapter in Medicine Creek: Seventy Years of Archaeological Investigations, archaeologist Ruthann Knudson reports:

“The site appears to reflect flaked stone reduction activities while people were camped at the site, which was adjacent to exposed jasper bedrock.”

The O. V. Clary Site: By 7000 BCE, Indian people had occupied the O. V. Clary site. Archaeologists classify the people who are using this site as Allen Complex foragers using lanceolate projectile points. The site appears to have been used as a residential base camp which was occupied continuously for 5-7 months from mid- to late-summer through late winter or early spring. The site was well-sheltered with easy access to water as well as to brush and wood for fuel and for tool construction.

The primary animal which the people were hunting at this time was the bison. In an article in American Antiquity, archaeologists Matthew Hill, David Rapson, Thomas Loebel, and David May report:

“Bison are interpreted as the focal prey for the duration of the occupation. These animals were likely taken singly during encounter-type hunting within Ash Hollow and the surrounding uplands.”

Note: the information in parenthesis following the name of the site is the Smithsonian Designation System. In this system of recording archaeological sites, the first number refers to the state; this is followed by letters which refer to the county; and then a number indicating its order in being recorded. Thus 5LP 10, means that the site is in Colorado (5th state when the states are listed alphabetically), La Plata County (LP), and was the 10th site recorded in La Plata county in the State Archaeologist’s office.


The Third Seminole War

During the nineteenth century the United States engaged in three wars with the Seminole Indians in Florida: 1816 to about 1824; 1835 to 1842; and 1855 to1858.

Contrary to some popular opinions, there was no traditional overall governmental or political organization among the Seminole at this time. They tended to be politically organized around busk groups, each of which had its own medicine bundle on which the annual busk (green corn) ceremony was focused. Thus the military actions against the U.S. military did not have a single leader or coordinator.

The Third Seminole War (1855-1858) was over American encroachment on Seminole lands. The Seminole who were living in Florida at this time were refugees who had avoided removal to Oklahoma and were living in the Everglades. The war started when Billy Bowlegs retaliated against a crew of surveyors who had looted his camp. Three years later, many of the Seminole accepted the government’s terms of surrender and were removed to Oklahoma. However, some Seminole remained in Florida.

In 1855, army engineers and surveyors were sent into the Great Cypress Swamp to make note of the Seminole villages and their crops. They were under orders not to provoke the Seminole. However, some of the men stole crops and destroyed banana trees belonging to the Seminole under the leadership of Billy Bowlegs. When confronted about these incidents, the army offered neither apology nor compensation. As a result, 40 Seminole warriors began a series of raids known as the Third Seminole War.

The start of the Third Seminole War is summarized by Historian Harry Kersey in his book Pelts, Plumes, and Hides: White Traders Among the Seminole Indians, 1870-1930:

“the Third Seminole War was ignited by an act of flagrant vandalism against Chief Billy Bowlegs, perhaps with the intent of provoking him into an armed response which would justify military intervention.”

On the morning after the vandalism, Mikasuki Seminole warriors attacked the army camp, killing four soldiers and wounding four others. In response the army marched against the Seminole, outnumbering them by about 14 to 1.

In 1856, the Seminole in Indian Territory (Oklahoma) signed a treaty in which they agreed to send a delegation to Florida to persuade the Seminole in Florida to remove to Indian Territory.

In 1857, the American army surprised a small Seminole camp in Lake Okeechobee, capturing several women and children.

After a series of skirmishes, the final fight in the Third Seminole War came in 1857 when the Seminole camp of Billy Bowlegs was burned by the army. In addition, the soldiers took large quantities of corn and rice, as well as some oxen.

In 1858, the Americans met with Seminole leaders Billy Bowlegs and others to discuss an end to the Third Seminole War. The Americans offered Billy Bowlegs $7,500, $1,000 to each of the other Seminole leaders, $500 to each warrior, and $100 to each woman and child. The money was payable when the Seminole boarded the ship at Egmont Key to leave the state. The Seminole held council and agreed to accept the offer.

It is estimated that the United States spent between $20 million and $60 million on this war against the Seminole. The United States used 30,000 regular army troops and volunteers, as well as the Navy and some Marines.


About 200 Seminole remained in Florida after Billy Bowlegs and his people had been removed to Indian Territory. The remaining Seminole withdrew from all willing contact with whites and existed for the next twenty years in relative isolation. The Muskogee band under the leadership of Chipco hid in the Lake Okeechobee area and could not be located by the Americans. Mikasuki leader Sam Jones refused to negotiate and his band remained deep in the Everglades. These two hundred were the cultural and biological ancestors of the Seminoles and Miccosukees of today.