The History of “Competency” as a Tool to Control Native American Lands

David Bartecchi, Village Earth

In a previous post I provided some basic facts and statistics on land for the Pine Ridge Indian Reservation. However, provided such information, people often ask:

WHY are nearly 65% (1,170,546 acres) of allotted lands on Pine Ridge being leased out when so many tribal members would prefer to live on and utilize their lands themselves?

I asked myself the same question a few years back and started doing some research. I eventually came across a series of Annual Reports issued by the various superintendents of the Pine Ridge Agency to the Secretary of the Interior between 1910 and 1934. In these reports I kept coming across mention of Indian “competency” in reference to allotted lands. I soon discovered a trend in the use of this term with the various amendments to the General Allotment Act 0f 1887 (also known as the Dawes Act). Below is an attempt to share some of these findings.

HOW WAS “COMPETENCY” USED TO ALIENATE LANDS FROM NATIVE AMERICANS ON THE PINE RIDGE INDIAN RESERVATION?

United States policy towards Native Americans during the first part of the century was focused on the cultural and economic assimilation of Native Americans into the majority culture. Furthermore there was a great deal of pressure to open up Indian lands to white settlers. “By the 1880’s settlers had filed upon most of the arable land in the West under the Homestead Act and other federal statutes. Indian reservation land then, in a sense, comprised the agrarians’ last frontier” (Gibson, 1988: p 227). Furthermore, the practice of communally managed lands by tribes was viewed as a non-productive and irrational use of resources. To address these interests, in 1887 the U.S. congress passed General Allotment Act (GAA) also known as the Dawes Severalty Act. The purpose of the act was to liquidate Indian land holdings by dividing the land up into 160-acre allotments to heads of households. After all the allotments were issued remaining lands in the West, which totaled over 60,000,000 acres, was opened up to homesteaders (Gibson, 1988). The wording of the Act of 1887 reads:

“That all allotments set apart under the provisions of this act shall be selected by the Indians, heads of families selecting for their minor children, and the agents shall select for each orphan child, and in such manner as to embrace the improvements of the Indians making the selection.” (emphasis mine)

What is important to note is the rhetoric used to classify who is to receive allotments in this Act, in this case the classification of ‘heads of families’ and ‘orphans’ because the remainder of this post will focus on how this rhetoric has changed over time to increase the power of the state over these lands, favoring some individuals, and excluding others.

The first change in the classificatory rhetoric occurred with the passing of the Act of February 28, 1891. This Act amended the GAA to give the Secretary of the Interior the power to determine whether an allottee is ‘capable’ of occupying or improving his allotment. The Act reads:

“That whenever it shall be made to appear to the Secretary of the Interior that, by reason of age or other disability, any allottee under the provisions of said act, or any other act or treaty can not personally and with benefit to himself occupy or improve his allotment or any part thereof the same may be leased upon such terms and conditions as shall be proscribed by such Secretary…” (emphasis mine)

Just nine years later, in the Act of May 31st, 1900, the classification became even more ambiguous when ‘inability’ was added along with ‘age’ and ‘disability.’

“Be it enacted, etc., * * * That whenever it shall be made to appear to the Secretary of the Interior that, by reason of age, disability, or inability, any allottee of Indian lands can not personally, and with benefit to himself, occupy or improve his allotment or any part thereof, the same may be leased upon such terms, regulations, and conditions as shall be prescribed by the Secretary for a term not exceeding five years, for farming purposes only.” * * * (emphasis mine)

The ambiguous rhetoric of ‘age,’ ‘other disability,’ and now ‘inability’ gives the Secretary of Interior the ability to determine the fate of lands legally allotted to individual Indians.

This line of discourse became even more ambiguous and exclusionary fifteen years later in 1906 with the passing of the Burk Act, also known as the forced patenting act. This Act further amended the GAA to give the Secretary of the Interior the power to issue allotees a patent in fee simple to people classified ‘competent and capable.’ The criteria for this determination is unclear but meant that allotees deemed ‘competent’ by the Secretary of the Interior would have their land taken out of trust status, subject to taxation, and could be sold by the allottee. The act reads:

“..the Secretary of the Interior may, in his discretion, and he is hereby authorized, whenever he shall be satisfied that any Indian allottee is competent and capable of managing his or her affairs at any time to cause to be issued to such allottee a patent in fee simple, and thereafter all restrictions as to sale, incumbrance, or taxation of said land shall be removed.” (emphasis mine)

The use of competence opens up the categorization making it much more subjective and thus increasing the exclusionary power of the Secretary of Interior. With a careful analysis of the annual reports from the Pine Ridge Agency is clear that the determination of competence was based on the level of cultural assimilation represented in way people dress, how they wear their hair, and how they speak. However, based on the assumptions about race and culture during this time period, these were objective standards in the eyes of the colonial agents.

Although this act gives power to the allottee decide whether to keep or sell the land, provided the harsh economic reality of the time, lack of access to credit and markets, liquidation of Indian lands was almost inevitable. It was know by the department of interior that virtually 95% of fee patented land would eventually be sold to whites (Robertson, 2002). The following passage from the 1913 annual report from the Pine Ridge agency reveals how the eventual dispossession of land after issuing a fee patent was an expected outcome and even considered a ‘valuable lesson’ by the department of Interior’s reservation superintendent.

“It is still the conviction of this office that the issue of a patent in fee for a portion of an Indian’s land who is judged as being competent or near-competent, is the proper procedure in dealing with the land question among the Indians…Even if the proceeds derived from the dispossession of the land are squandered he still has plenty of land left and he may have learned a few lessons that will prove of value in the future.” (Dapartment of the Interior, Annual Report of the Pine Ridge Agency, SD, August 1, 1913)

On June 25th, 1910, (coincidentally, the 34th anniversary of the Battle of the Greasy Grass where General Custer and 260 of his men where killed by Crazy Horse and his band of Lakota warriors) even the heir
s of deceased allotees became the subjects of this exclusionary discourse. The Act of June 25th 1910 further amends the GAA to give the Secretary of the Interior the power to sell the land of deceased allotees or issue patent and fee to legal heirs. This decision is based on a vague determination made by the Secretary of whether the legal heirs are ‘competent’ or ‘incompetent’ to manage their own affairs.

“If the Secretary finds the legal heirs competent to manage their own affairs, and that the lands are capable of partition, he may convey the lands to the heirs and issue them patents-in-fee. If the legal heirs are incompetent, the Secretary is authorized to sell the lands.”

As we can see from the annual reports from the Pine Ridge Agency for that same summer, no time was wasted in this effort.

“During the present summer eighty-six pieces of inherited and non-competent land were advertised for sale.’ (Dapartment of the Interior, Annual Report of the Pine Ridge Agency, SD, August 1, 1910)

The ambiguous designation of ‘competent’ and ‘non-competent’ was not only used by the state to control Indian lands it was also used to determine how to distribute annuities guaranteed to the Lakota living on Pine Ridge.

“Our records show that 2294 of the Pine Ridge Indians have received their pro rata shares of tribal trust funds. 1009 received their shares as competents and 1285 as incompetents, incapable of performing manual labor on account of physical disabilities. In the case of the former, the money is paid to them direct to be expended as they may see fit. As the amount is only, in round numbers, $130.00, it is generally expended in living expenses. The money of the incompetents is deposited as Individual Indian Bank Accounts and expended, in the great majority of cases, for medical attention and monthly pensions. (Department of the Interior, Annual Report of the Pine Ridge Agency, SD, August , 1915)

Note that more than half (56%) of the Lakota living on Pine Ridge were classified as “non-competent” and thus did not directly receive their annuity payments. Rather the administration of the Pine Ridge Agency would use the money “for medical attention and monthly pensions.” However, In 1996, the largest class-action lawsuit ever launched against the government, Cobell vs. Norton, was filed on behalf of 300,000 trust-fund beneficiaries who offered to settle for no less than 27 billion dollars.

Furthermore, according the GAA, these individuals also could not occupy their allotted lands, be issued fee patents, or inherit land. However, if the Secretary of the Interior deemed you ‘competent’ you would be issued a fee patent and forced to pay taxes to the State and as the records indicate, 95% likely to be forced to sell you land to white farmers and ranchers.

The policy on Pine Ridge during the first quarter of the 20th century was to assimilate Indians into the market system and ‘rationalize’ the use of Indian lands – moving Indians away from subsistence production to production for wages. To these ends policies were implemented to restrict subsistence production, the classification of ‘competent’ and ‘non-competent’ where employed to facilitate this effort. In the passage below from the 1910 Pine Ridge agency annual report, Indians classified as non-competent were required to apply for a permit from his district’s farm agent to be allowed to slaughter one of his cows.

“Stock raising is primarily the livelihood of the people of this reservation and it is to their herds that they must look for support through summer and winter and through wet years and dry years. From the office standpoint, the great task connected with this industry is in keeping the people from disposing of their entire holding for feasting or other similar purposes, with an utter contempt for a source of living on the morrow. To regulate this tendency, no Indian, classed as a non-competent, is allowed to dispose of his stock without first obtaining a permit form his Additional Farmer. Violations of this rule are punished by fine or imprisonment in the Agency guard house.”(emphasis mine)

Note the passage “…no Indian, classed as a non-competent, is allowed to dispose of his stock…” this would indicate that non-competent Indians are in fact capable of performing manual labor and in some instance, have land on which they are raising cattle. The prevalence of ‘non-competent’ Indians raising stock is unclear, yet it does appear to be a big enough issue that the agents from the department of Interior felt the need to regulate it.

As noted earlier, the other aspect of the policy during the first part of the 20th century was to liquidate the lands either by claiming that the allottee was ‘non-competent’ or forcing a fee-patent on it. However, at about 1927 this policy changed and appeared to be more geared towards preserving Indian lands. The Act of February 26, 1927 gives the Secretary of the Interior the power to cancel any patent in fee on unsold land and issue new trust patents, removing any obligation to pay taxes and also preventing the allottee from selling their land.

“…the Secretary of the Interior is, on application of the allottee or his or her Indian heirs, hereby authorized, in his discretion, to cancel patents in fee so far as they cover such unsold lands not encumbered by mortgage, and to cause new trust patents to be issued therefore, to the allottees or their Indian heirs, of the form and legal effect as provided by the Act of February 8, 1887 (24 Stat. 388)…”

Leading up to the Act of 1927 the value of farm and ranch lands decreased on the Pine Ridge Reservation as they did across the country during the 1920’s. As the Indians and Federal Government could no longer receive income from leasing their lands to white farmers and ranchers, more emphasis was placed on preserving lands and less emphasis was placed on producing for the market as even established off-reservation farmers in the area were incapable of doing this successfully. In fact, administrators of the reservation encouraged subsistence production by providing seeds for gardens and building root cellars to families.

“Since the issuance of circular 1649 in December 1920, there have been but few patents in fee issued to the Pine Ridge Indians. The provisions of this circular are to the effect that an Indian should have qualifications similar to the average white man in order to receive patents. There are a few of our Indians who can measure up to this standard…Careful observation of the results on the Pine Ridge reservation show that less than five percent of the Indians who receive patents retain their lands; the other ninety five percent dispose of them just as soon as they can…Land is the basic wealth in any community and it is very clear that when an Indian squanders his land he is absolutely without a place of refuge.” (Department of the Interior, Annual Report of the Pine Ridge Agency, SD, September 1922)

Forty seven years after the passing of the General Allotment Act in 1934, the Wheeler-Howard Act was signed into law which made it so Indian lands could no longer be sold to non-tribal members, thus protecting them from being alienated to white farmers and ranchers. Despit
e this, the classifications of competent and non-competent are still used today to determine whether someone is able to occupy or lease their land. According to the Bureau of Indian Affairs 1998 Code of Federal Regulation, factors determining competency include:

“the amount of the applicant’s indebtedness to the tribe, the United States Government, and to others; whether he is a public charge or a charge to friends and relatives, or will become such a charge, by reason of being classed as competent; and whether the applicant has demonstrated that he possesses the ability to take care of himself and his property, to protect the interests of himself and his family, to lease his land and collect the rentals therefrom, to lease the land of his minor children, to prescribe in lease agreements those provisions which will protect the land from deterioration through overgrazing and other improper practices, and assume full responsibility for obtaining compliance with the terms of any lease.(Code of Federal Regulation, Title 25, Vol 1, Sec 153.4)

The remnants of these classifications can also be found in the current code of the Internal Revenue Service, however, as can be seen in the excerpts below, they are undergoing further modification to conceal their racist tone.

“The term “competent” denotes an Indian’s ability to hold fee simple title to trust land. This status generally subjects income “directly derived” from the land to federal income tax. The term “competent” is sometimes interchanged with the term “unrestricted”.”

“Non-competent is used to denote an Indian’s inability to hold fee simple title to trust land. This status generally exempts income “directly derived” from the land from federal income tax. The term “non-competent” is sometimes interchanged with the word “restricted”.”

“NOTE: This term should never be confused with “incompetent”, which refers to one’s inadequacy for a particular purpose.” (2004 IRS Website: FAQs regarding Competent vs. Non-competent)

The last excerpt from the website reveals the irony of history when it comes to racist discourse. With a careful analysis of the history of this discourse it is clear that this rhetoric has been cleverly changed and is now represented as historical fact (e.g. restricted) rather than a racist category (e.g. non-competent).

REFERENCES CITED

Berkhofer, Rovert F Jr.
1988 White Conceptions of Natives. In “Handbook of North American Indians” Vol. 04, pp. 522-547. Ed. Wilcomb E. Washburn.

Gibson, Arrell M.
1988 Indian Land Transfers. In “Handbook of North American Indians” Vol. 04, pp. 211-229. Ed. Wilcomb E. Washburn.

Phillips, Neson and Cynthia Hardy
2002 Discourse Analysis: Investigating Processes of Social Construction. Thousand Oaks: Sage Publications

Robertson, Paul
2001 The Power of the Land: Identity, Ethnicity, and Class Among the Oglala Lakota. Routledge.

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