A CENTURY OF DISHONOR
A SKETCH
OF THE UNITED STATES GOVERNMENT'S DEALINGS
WITH SOME OF THE INDIAN TRIBES
BY HELEN JACKSON (H. H.),
AUTHOR OF "RAMONA," "VERSES," "BITS OF TRAVEL,"
"BITS OF TRAVEL AT HOME," "BITS OF TALK ABOUT HOME MATTERS,"
"BITS OF TALK FOR YOUNG FOLKS," "NELLY'S SILVER MINE,"
H. H.'S CAT STORIES, ETC.
"_Every human being born upon our continent, or who comes here
from any quarter of the world, whether savage or civilized, can go
to our courts for protection—except those who belong to the tribes
who once owned this country. The cannibal from the islands of the
Pacific, the worst criminals from Europe, Asia, or Africa, can appeal
to the law and courts for their rights of person and property—all,
save our native Indians, who, above all, should be protected from
wrong._" GOV. HORATIO SEYMOUR
NEW EDITION, ENLARGED BY THE ADDITION OF THE REPORT OF
THE NEEDS OF THE MISSION INDIANS OF CALIFORNIA
BOSTON
ROBERTS BROTHERS
1889
_Copyright, 1885_,
BY ROBERTS BROTHERS.
University Press:
JOHN WILSON AND SON, CAMBRIDGE.
CONTENTS.
PAGE
PREFACE, BY BISHOP WHIPPLE v
INTRODUCTION, BY PRESIDENT JULIUS H.
SEELYE 1
CHAPTER I.
INTRODUCTORY 9
CHAPTER II.
THE DELAWARES 32
CHAPTER III.
THE CHEYENNES 66
CHAPTER IV.
THE NEZ PERCÉS 103
CHAPTER V.
THE SIOUX 136
CHAPTER VI.
THE PONCAS 186
CHAPTER VII.
THE WINNEBAGOES 218
CHAPTER VIII.
THE CHEROKEES 257
CHAPTER IX.
MASSACRES OF INDIANS BY WHITES 298
I. The Conestoga Massacre 298
II. The Gnadenhütten Massacre 317
III. Massacres of Apaches 324
CHAPTER X.
CONCLUSION 336
APPENDIX.
I. THE SAND CREEK MASSACRE 343
II. THE PONCA CASE 359
III. TESTIMONIES TO INDIAN CHARACTER 374
IV. OUTRAGES COMMITTED ON INDIANS BY WHITES 381
V. EXTRACTS FROM THE REPORT OF THE
COMMISSION SENT TO TREAT WITH THE SIOUX
CHIEF SITTING BULL, IN CANADA 386
VI. ACCOUNT OF SOME OF THE OLD GRIEVANCES OF
THE SIOUX 389
VII. LETTER FROM SARAH WINNEMUCCA, AN
EDUCATED PAH-UTE WOMAN 395
VIII. LAWS OF THE DELAWARE NATION OF INDIANS 396
IX. ACCOUNT OF THE CHEROKEE WHO INVENTED THE
CHEROKEE ALPHABET 404
X. PRICES PAID BY WHITE MEN FOR SCALPS 405
XI. EXTRACT FROM TREATY WITH CHEYENNES IN
1865 406
XII. WOOD-CUTTING BY INDIANS IN DAKOTA 407
XIII. SEQUEL TO THE WALLA WALLA MASSACRE 407
XIV. AN ACCOUNT OF THE NUMBERS, LOCATION, AND
SOCIAL AND INDUSTRIAL CONDITION OF EACH
IMPORTANT TRIBE AND BAND OF INDIANS
WITHIN THE UNITED STATES 411
XV. REPORT ON THE CONDITION AND NEEDS OF THE
MISSION INDIANS OF CALIFORNIA 458
PREFACE.
I have been requested to write a preface to this sad story of "A Century
of Dishonor." I cannot refuse the request of one whose woman's heart has
pleaded so eloquently for the poor Red men. The materials for her book
have been taken from official documents. The sad revelation of broken
faith, of violated treaties, and of inhuman deeds of violence will bring
a flush of shame to the cheeks of those who love their country. They
will wonder how our rulers have dared to so trifle with justice, and
provoke the anger of God. Many of the stories will be new to the reader.
The Indian owns no telegraph, employs no press reporter, and his side of
the story is unknown to the people.
Nations, like individuals, reap exactly what they sow; they who sow
robbery reap robbery. The seed-sowing of iniquity replies in a harvest
of blood. The American people have accepted as truth the teaching that
the Indians were a degraded, brutal race of savages, whom it was the
will of God should perish at the approach of civilization. If they do
not say with our Puritan fathers that these are the Hittites who are to
be driven out before the saints of the Lord, they do accept the teaching
that manifest destiny will drive the Indians from the earth. The
inexorable has no tears or pity at the cries of anguish of the doomed
race. Ahab never speaks kindly of Naboth, whom he has robbed of his
vineyard. It soothes conscience to cast mud on the character of the one
whom we have wronged.
The people have laid the causes of Indian wars at the door of the Indian
trader, the people on the border, the Indian agents, the army, and the
Department of the Interior. None of these are responsible for the Indian
wars, which have cost the United States five hundred millions of dollars
and tens of thousands of valuable lives. In the olden time the Indian
trader was the Indian's friend. The relation was one of mutual
dependence. If the trader oppressed the Indian he was in danger of
losing his debt; if the Indian refused to pay his debts, the trader must
leave the country. The factors and agents of the old fur companies tell
us that their goods were as safe in the unguarded trading-post as in the
civilized village. The pioneer settlers have had too much at stake to
excite an Indian massacre, which would overwhelm their loved ones in
ruin. The army are not responsible for Indian wars; they are "men under
authority," who go where they are sent. The men who represent the honor
of the nation have a tradition that lying is a disgrace, and that theft
forfeits character. General Crook expressed the feeling of the army when
he replied to a friend who said, "It is hard to go on such a campaign."
"Yes, it is hard; but, sir, the hardest thing is to go and fight those
whom you know are in the right." The Indian Bureau is often unable to
fulfil the treaties, because Congress has failed to make the
appropriations. If its agents are not men of the highest character, it
is largely due to the fact that we send a man to execute this difficult
trust at a remote agency, and expect him to support himself and family
on $1500 a year. The Indian Bureau represents a system which is a
blunder and a crime.
The Indian is the only human being within our territory who has no
individual right in the soil. He is not amenable to or protected by law.
The executive, the legislative, and judicial departments of the
Government recognize that he has a possessory right in the soil; but his
title is merged in the tribe—the man has no standing before the law. A
Chinese or a Hottentot would have, but the native American is left
pitiably helpless. This system grew out of our relations at the first
settlement of the country. The isolated settlements along the Atlantic
coast could not ask the Indians, who outnumbered them ten to one, to
accept the position of wards. No wise policy was adopted, with altered
circumstances, to train the Indians for citizenship. Treaties were made
of the same binding force of the constitution; but these treaties were
unfilled. It may be doubted whether one single treaty has ever been
fulfilled as it would have been if it had been made with a foreign
power. The treaty has been made as between two independent sovereigns.
Sometimes each party has been ignorant of the wishes of the other; for
the heads of both parties to the treaty have been on the interpreter's
shoulders, and he was the owned creature of corrupt men, who desired to
use the Indians as a key to unlock the nation's treasury. Pledges,
solemnly made, have been shamelessly violated. The Indian has had no
redress but war. In these wars ten white men were killed to one Indian,
and the Indians who were killed have cost the Government a hundred
thousand dollars each. Then came a new treaty, more violated faith,
another war, until we have not a hundred miles between the Atlantic and
Pacific which has not been the scene of an Indian massacre.
All this while Canada has had no Indian wars. Our Government has
expended for the Indians a hundred dollars to their one. They recognize,
as we do, that the Indian has a possessory right to the soil. They
purchase this right, as we do, by treaty; but their treaties are made
with _the Indian subjects_ of Her Majesty. They set apart a _permanent_
reservation for them; they seldom remove Indians; they select agents of
high character, who receive their appointments for life; they make fewer
promises, but they fulfil them; they give the Indians Christian
missions, which have the hearty support of Christian people, and all
their efforts are toward self-help and civilization. An incident will
illustrate the two systems. The officer of the United States Army who
was sent to receive Alaska from the Russian Government stopped in
British Columbia. Governor Douglas had heard that an Indian had been
murdered by another Indian. He visited the Indian tribe; he explained to
them that the murdered man was a subject of Her Majesty; he demanded the
culprit. The murderer was surrendered, was tried, was found guilty, and
was hanged. On reaching Alaska the officer happened to enter the Greek
church, and saw on the altar a beautiful copy of the Gospels in a costly
binding studded with jewels. He called upon the Greek bishop, and said,
"Your Grace, I called to say you had better remove that copy of the
Gospels from the church, for it may be stolen." The bishop replied, "Why
should I remove it? It was the gift of the mother of the emperor, and
has lain on the altar seventy years." The officer blushed, and said,
"There is no law in the Indian country, and I was afraid it might be
stolen." The bishop said, "The book is in God's house, and it is His
book, and I shall not take it away." The book remained. The country
became ours, and the next day the Gospel was stolen.
Our Indian wars are needless and wicked. The North American Indian is
the noblest type of a heathen man on the earth. He recognizes a Great
Spirit; he believes in immortality; he has a quick intellect; he is a
clear thinker; he is brave and fearless, and, until betrayed, he is true
to his plighted faith; he has a passionate love for his children, and
counts it joy to die for his people. Our most terrible wars have been
with the noblest types of the Indians, and with men who had been the
white man's friend. Nicolet said the Sioux were the finest type of wild
men he had ever seen. Old traders say that it used to be the boast of
the Sioux that they had never taken the life of a white man. Lewis and
Clarke, Governor Stevens, and Colonel Steptoe bore testimony to the
devoted friendship of the Nez Percés for the white man. Colonel Boone,
Colonel Bent, General Harney, and others speak in the highest praise of
the Cheyennes. The Navahoes were a semi-civilized people.
Our best friends have suffered more deeply from our neglect and violated
faith than our most bitter foes. Peaceable Indians often say, "You leave
us to suffer; if we killed your people, then you would take care of us."
Our Indian wars have not come wholly from violated faith. In time of
peace it has been our policy to establish "almshouses" to train and
educate savage paupers. We have purchased paint, beads, scalping-knives,
to deck warriors, and have fed them in idleness at the agency. Around
this agency and along the border were gathered influences to degrade the
savage, and sink him to a depth his fathers had never known. It has only
needed a real or a fancied wrong to have this pauperized savagery break
out in deeds of blood. Under President Grant a new departure was taken.
The peace policy was little more than a name. No change was made in the
Indian system; no rights of property were given; no laws were passed to
protect the Indians. The President did take the nomination of Indian
agents from politicians, who had made the office a reward for political
service. He gave the nomination of Indian agents to the executive
committees of the missionary societies of the different churches. Where
these Christian bodies established schools and missions, and the
Government cast its influence on the side of labor, it was a success.
More has been done to civilize the Indians in the past twelve years than
in any period of our history. The Indian Ring has fought the new policy
at every step; and yet, notwithstanding our Indian wars, our violated
treaties, and our wretched system, thousands of Indians, who were poor,
degraded savages, are now living as Christian, civilized men. There was
a time when it seemed impossible to secure the attention of the
Government to any wrongs done to the Indians: it is not so to-day. The
Government does listen to the friends of the Indians, and many of the
grosser forms of robbery are stopped. No permanent reform can be secured
until the heart of the people is touched. In 1862 I visited Washington,
to lay before the Administration the causes which had desolated our fair
State with the blood of those slain by Indian massacre. After pleading
in vain, and finding no redress, Secretary Stanton said to a friend,
"What does the Bishop want? If he came here to tell us that our Indian
system is a sink of iniquity, tell him we all know it. Tell him the
United States never cures a wrong until the people demand it; and when
the hearts of the people are reached the Indian will be saved." In this
book the reader will find the sad story of a century—no, not the whole
story, but the fragmentary story of isolated tribes. The author will
have her reward if it shall aid in securing justice to a noble and a
wronged race. Even with the sad experiences of the past we have not
learned justice. The Cherokees and other tribes received the Indian
Territory as a compensation and atonement for one of the darkest crimes
ever committed by a Christian nation. That territory was conveyed to
them by legislation as strong as the wit of statesmen could devise. The
fathers who conveyed this territory to the Cherokees are dead. Greedy
eyes covet the land. The plans are laid to wrest it from its rightful
owners. If this great iniquity is consummated, these Indians declare
that all hope in our justice will die out of their hearts, and that they
will defend their country with their lives.
The work of reform is a difficult one; it will cost us time, effort, and
money; it will demand the best thoughts of the best men in the country.
We shall have to regain the confidence of our Indian wards by honest
dealing and the fulfilment of our promises. Now the name of a white man
is to the Indians a synonyme for "liar." Red Cloud recently paid a visit
to the Black Hills, and was hospitably entertained by his white friends.
In bidding them good-bye he expressed the hope that, if they did not
meet again on earth, they might meet beyond the grave "in a land where
white men ceased to be liars."
Dark as the history is, there is a brighter side. No missions to the
heathen have been more blessed than those among the Indians. Thousands,
who were once wild, painted savages, finding their greatest joy in deeds
of war, are now the disciples of the Prince of Peace. There are Indian
churches with Indian congregations, in which Indian clergy are telling
the story of God's love in Jesus Christ our Saviour. Where once was only
heard the medicine-drum and the song of the scalp-dance, there is now
the bell calling Christians to prayer, and songs of praise and words of
prayer go up to heaven. The Christian home, though only a log-cabin, has
taken the place of the wigwam; and the poor, degraded Indian woman has
been changed to the Christian wife and mother. With justice, personal
rights, and the protection of law, the Gospel will do for our Red
brothers what it has done for other races—give to them homes, manhood
and freedom.
H. B. WHIPPLE, _Bishop of Minnesota_.
NEW YORK, _November 11th, 1880_.
INTRODUCTION.
The present number of Indians in the United States does not exceed three
hundred thousand, but is possibly as large now as when the Europeans
began the settlement of the North American continent. Different tribes
then existing have dwindled, and some have become extinct; but there is
reason to believe that the vast territory now occupied by the United
States, if not then a howling wilderness, was largely an unpeopled
solitude. The roaming wild men who met the new discoverers were,
however, numerous enough to make the Indian problem at the outset a
serious one, while neither its gravity nor its difficulty yet shows
signs of diminution.
The difficulty is not because the Indians are wild and savage men, for
such men have in the past history of the human race been subdued and
civilized in unnumbered instances, while the changes which in our time
have been wrought among the cannibals of the South Sea and the
barbarians of South Africa, and among the wildest and most savage of the
North American Indians themselves, show abundantly that the agencies of
civilization, ready to our hand are neither wanting nor weak.
The great difficulty with the Indian problem is not with the Indian, but
with the Government and people of the United States. Instead of a
liberal and far-sighted policy looking to the education and civilization
and possible citizenship of the Indian tribes, we have suffered these
people to remain as savages, for whose future we have had no adequate
care, and to the consideration of whose present state the Government has
only been moved when pressed by some present danger. We have encroached
upon their means of subsistence without furnishing them any proper
return; we have shut them up on reservations often notoriously unfit for
them, or, if fit, we have not hesitated to drive them off for our
profit, without regard to theirs; we have treated them sometimes as
foreign nations, with whom we have had treaties; sometimes as wards, who
are entitled to no voice in the management of their affairs; and
sometimes as subjects, from whom we have required obedience, but to whom
we have recognized no obligations. That the Government of the United
States, which has often plighted its faith to the Indian, and has broken
it as often, and, while punishing him for his crimes, has given him no
status in the courts except as a criminal, has been sadly derelict in
its duty toward him, and has reaped the whirlwind only because it has
sown the wind, is set forth in no exaggerated terms in the following
pages, and ought to be acknowledged with shame by every American
citizen.
It will be admitted now on every hand that the only solution of the
Indian problem involves the entire change of these people from a savage
to a civilized life. They are not likely to be exterminated. Unless we
ourselves withdraw from all contact with them, and leave them to roam
untrammeled over their wilds, or until the power of a Christian
civilization shall make them consciously one with us, they will not
cease to vex us.
But how shall they become civilized? Civilization is in a most important
sense a gift rather than an acquisition. Men do not gain it for
themselves, except as stimulated thereto by some incitement from above
themselves. The savage does not labor for the gratifications of
civilized life, since he does not desire these. His labors and his
desires are both dependent upon some spiritual gift, which, having
kindled him, quickens his desires and calls forth his toil. Unless he
has some help from without, some light and life from above to illumine
and inspire him, the savage remains a savage, and without this all the
blandishments of the civilization with which he might be brought into
contact could no more win him into a better state than could all the
light and warmth of the sun woo a desert into a fruitful field. When
English missionaries went to the Indians in Canada, they took with them
skilled laborers who should teach the Indians how to labor, and who, by
providing them at first with comfortable houses, and clothing, and food,
should awaken their desires and evoke their efforts to perpetuate and
increase these comforts. But the Indian would not work, and preferred
his wigwam, and skins, and raw flesh, and filth to the cleanliness and
conveniences of a civilized home; and it was only as Christian
influences taught him his inner need, and how this could be supplied,
that he was led to wish and work for the improvement of his outer
condition and habits of life. The same is true everywhere. Civilization
does not reproduce itself. It must first be kindled, and can then only
be kept alive by a power genuinely Christian.
But it is idle to attempt to carry Christian influences to any one
unless we are Christian. The first step, therefore, toward the desired
transformation of the Indian is a transformed treatment of him by
ourselves. In sober earnest, our Government needs, first of all, to be
Christian, and to treat the Indian question as Christian principles
require. This means at the outset that we should be honest, and not talk
about maintaining our rights until we are willing to fulfil our
obligations. It means that we should be kind, and quite as eager to give
the Indian what is ours as to get what is his. It means that we should
be wise, and patient, and persevering, abandoning all makeshifts and
temporary expedients, and setting it before us as our fixed aim to act
toward him as a brother, until he shall act as a brother toward us.
There is no use to attempt to teach Christian duty to him in words till
he has first seen it exemplified in our own deeds.
The true Christian principle of self-forgetful honesty and kindness,
clearly and continuously exhibited, is the first requisite of true
statesmanship in the treatment of the Indian question. This would not
require, however, the immediate entrance of the Indian upon all the
privileges of citizenship and self-direction. Christianized though he
might be, he would need for a longer or shorter time guardianship like a
child. A wise care for his own interests could not be expected of him at
the outset, and the Government should care for him with wise
forethought. Obedience to the law should be required of him, and the
protection of the law afforded him. The jurisdiction of the courts and
the presence of the Government should be felt in the Indian Territory
and upon every Indian reservation as powerfully as in the most
enlightened portions of the land. The court should go as early as the
school, if not before, and is itself an educational agency of
incalculable importance.
When the Indian, through wise and Christian treatment, becomes invested
with all the rights and duties of citizenship, his special tribal
relations will become extinct. This will not be easily nor rapidly done;
but all our policy should be shaped toward the gradual loosening of the
tribal bond, and the gradual absorption of the Indian families among the
masses of our people. This would involve the bringing to an end of the
whole system of Indian reservations, and would forbid the continued
isolation of the Indian Territory. It is not wise statesmanship to
create impassable barriers between any parts of our country or any
portions of our people.
Very difficult questions demanding very careful treatment arise in
reference to just this point. Certain Indian tribes now own certain
Indian reservations and the Indian Territory, and this right of property
ought to be most sacredly guarded. But it does not, therefore, follow
that these Indians, in their present state, ought to control the present
use of this property. They may need a long training before they are wise
enough to manage rightfully what is nevertheless rightfully their own.
This training, to which their property might fairly contribute means,
should assiduously be given in established schools with required
attendance.
If the results thus indicated shall gradually come to pass, the property
now owned by the tribes should be ultimately divided and held in
severalty by the individual members of the tribes. Such a division
should not be immediately made, and, when made, it should be with great
care and faithfulness; but the Indian himself should, as soon as may be,
feel both the incentives and the restraints which an individual
ownership of property is fitted to excite, and the Government, which is
his guardian, having educated him for this ownership, should endow him
with it. But until the Indian becomes as able as is the average white
man to manage his property for himself, the Government should manage it
for him, no matter whether he be willing or unwilling to have this done.
A difficulty arises in the cases—of which there are many—where treaties
have been made by the Government of the United States with different
Indian tribes, wherein the two parties have agreed to certain definitely
named stipulations. Such treaties have proceeded upon the false
view—false in principle, and equally false in fact—that an Indian tribe,
roaming in the wilderness and living by hunting and plunder, is a
nation. In order to be a nation, there must be a people with a code of
laws which they practise, and a government which they maintain. No vague
sense of some unwritten law, to which human nature, in its lowest
stages, doubtless feels some obligation, and no regulations
instinctively adopted for common defence, which the rudest people herded
together will always follow, are enough to constitute a nation. These
Indian tribes are not a nation, and nothing either in their history or
their condition could properly invest them with a treaty-making power.
And yet when exigencies have seemed to require, we have treated them as
nations, and have pledged our own national faith in solemn covenant with
them. It were the baldest truism to say that this faith and covenant
should be fulfilled. Of course it should be fulfilled. It is to our own
unspeakable disgrace that we have so often failed therein. But it
becomes us wisely and honestly to inquire whether the spirit of these
agreements might not be falsified by their letter, and whether, in order
to give the Indian his real rights, it may not be necessary to set aside
prerogatives to which he might technically and formally lay claim. If
the Indian Territory and the Indian reservations have been given to
certain tribes as their possession forever, the sacredness of this
guarantee should not shut our eyes to the sacredness also of the real
interests of the people in whose behalf the guarantee was given. We
ought not to lose the substance in our efforts to retain the shadow; we
ought not to insist upon the _summum jus_, when this would become the
_summa injuria_.
Of course the utmost caution is needed in the application of such a
principle. To admit that a treaty with the Indians may be set aside
without the consent of the Indians themselves, is to open the door again
to the same frauds and falsehoods which have so darkly branded a
"Century of Dishonor." But our great trouble has been that we have
sought to exact justice from the Indian while exhibiting no justice to
him; and when we shall manifest that all our procedure toward him is in
truth and uprightness, we need have no fear but that both his conscience
and his judgment will in the end approve.
JULIUS H. SEELYE.
AMHERST COLLEGE, _December 10, 1880_.
AUTHOR'S NOTE.
All the quotations in this book, where the name of the authority is not
cited, are from Official Reports of the War Department or the Department
of the Interior.
The book gives, as its title indicates, only a sketch, and not a
history.
To write in full the history of any one of these Indian communities, of
its forced migrations, wars, and miseries, would fill a volume by
itself.
The history of the missionary labors of the different churches among the
Indians would make another volume. It is the one bright spot on the dark
record.
All this I have been forced to leave untouched, in strict adherence to
my object, which has been simply to show our causes for national shame
in the matter of our treatment of the Indians. It is a shame which the
American nation ought not to lie under, for the American people, as a
people, are not at heart unjust.
If there be one thing which they believe in more than any other, and
mean that every man on this continent shall have, it is "fair play." And
as soon as they fairly understand how cruelly it has been denied to the
Indian, they will rise up and demand it for him.
H. H.
A CENTURY OF DISHONOR.
CHAPTER I.
INTRODUCTORY.
The question of the honorableness of the United States' dealings with
the Indians turns largely on a much disputed and little understood
point. What was the nature of the Indians' right to the country in which
they were living when the continent of North America was discovered?
Between the theory of some sentimentalists that the Indians were the
real owners of the soil, and the theory of some politicians that they
had no right of ownership whatever in it, there are innumerable grades
and confusions of opinion. The only authority on the point must be the
view and usage as accepted by the great discovering Powers at the time
of discovery, and afterward in their disposition of the lands
discovered.
Fortunately, an honest examination of these points leaves no doubt on
the matter.
England, France, Spain, little Portugal—all quarrelling fiercely, and
fighting with each other for the biggest share in the new continent—each
claiming "sovereignty of the soil" by right of priority of discovery—all
recognized the Indians' "right of occupancy" as a right; a right
alienable in but two ways, either by purchase or by conquest.
All their discussions as to boundaries, from 1603 down to 1776,
recognized this right and this principle. They reiterated, firstly, that
discoverers had the right of sovereignty—a right in so far absolute that
the discoverer was empowered by it not only to take possession of, but
to grant, sell, and convey lands still occupied by Indians—and that for
any nation to attempt to take possession of, grant, sell, or convey any
such Indian-occupied lands while said lands were claimed by other
nations under the right of discovery, was an infringement of rights, and
just occasion of war; secondly, that all this granting, selling,
conveying was to be understood to be "subject to the Indians' right of
occupancy," which remained to be extinguished either through further
purchase or through conquest by the grantee or purchaser.
Peters, in his preface to the seventh volume of the "United States
Statutes at Large," says, "The history of America, from its discovery to
the present day, proves the universal recognition of these principles."
Each discovering Power might regulate the relations between herself and
the Indians; but as to the existence of the Indians' "right of
occupancy," there was absolute unanimity among them. That there should
have been unanimity regarding any one thing between them, is remarkable.
It is impossible for us to realize what a sudden invitation to greed and
discord lay in this fair, beautiful, unclaimed continent—eight millions
of square miles of land—more than twice the size of all Europe itself.
What a lure to-day would such another new continent prove! The fighting
over it would be as fierce now as the fighting was then, and the "right
of occupancy" of the natives would stand small chance of such unanimous
recognition as the four Great Powers then justly gave it.
Of the fairness of holding that ultimate sovereignty belonged to the
civilized discoverer, as against the savage barbarian, there is no
manner nor ground of doubt. To question this is feeble sentimentalism.
But to affirm and uphold this is not in any wise to overlook the lesser
right which remained; as good, of its kind, and to its extent, as was
the greater right to which, in the just nature of things, it was bound
to give way.
It being clear, then, that the Indians' "right of occupancy" was a right
recognized by all the great discovering Powers, acted upon by them in
all their dispositions of lands here discovered, it remains next to
inquire whether the United States Government, on taking its place among
the nations, also recognized or accepted this Indian "right of
occupancy" as an actual right. Upon this point, also, there is no doubt.
"By the treaty which concluded the War of our Revolution, Great Britain
relinquished all claims not only to the government, but to the
proprietary and territorial rights of the United States whose boundaries
were fixed in the second Article. By this treaty the powers of the
government and the right to soil which had previously been in Great
Britain passed definitely to these States. We had before taken
possession of them by declaring independence, but neither the
declaration of independence nor the treaty confirming it could give us
more than that which we before possessed, or to which Great Britain was
before entitled. It has never been doubted that either the United States
or the several States had a clear title to all the lands within the
boundary-lines described in the treaty, subject only to the Indian right
of occupancy, and that the exclusive right to extinguish that right was
vested in that government which might constitutionally exercise it."[1]
Footnote 1:
Peters, United States Statutes at Large, vol. vii.
"Subject to the Indian right of occupancy." It is noticeable how
perpetually this phrase reappears. In their desire to define, assert,
and enforce the greater right, the "right of sovereignty," the makers,
interpreters, and recorders of law did not realize, probably, how
clearly and equally they were defining, asserting, and enforcing the
lesser right, the "right of occupancy."
Probably they did not so much as dream that a time would come when even
this lesser right—this least of all rights, it would seem, which could
be claimed by, or conceded to, an aboriginal inhabitant of a country,
however savage—would be practically denied to our Indians. But if they
had foreseen such a time, they could hardly have left more explicit
testimony to meet the exigency.
"The United States have unequivocally acceded to that great and broad
rule by which its civilized inhabitants now hold this country. They hold
and assert in themselves the title by which it was acquired. They
maintain, as all others have maintained, that discovery gave an
exclusive right to extinguish the Indian title of occupancy, either by
purchase or conquest, and gave also a right to such a degree of
sovereignty as the circumstances of the people would allow them to
exercise.
"The power now possessed by the United States to grant lands resided,
while we were colonies, in the Crown or its grantees. The validity of
the titles given by either has never been questioned in our courts. It
has been exercised uniformly over territories in possession of the
Indians. The existence of this power must negative the existence of any
right which may conflict with and control it. An absolute title to lands
cannot exist at the same time in different persons or in different
governments. An absolute must be an exclusive title, or at least a title
which excludes all others not compatible with it. All our institutions
recognize the absolute title of the Crown, subject only to the Indian
right of occupancy, and recognize the absolute title of the Crown to
extinguish the right. This is incompatible with an absolute and complete
title in the Indians."[2]
Footnote 2:
Peters.
Certainly. But it is also "incompatible with an absolute and perfect
title" in the white man! Here again, in their desire to define and
enforce the greater right, by making it so clear that it included the
lesser one, they equally define and enforce the lesser right as a thing
to be included. The word "subject" is a strong participle when it is
used legally. Provisions are made in wills, "subject to" a widow's right
of dower, for instance, and the provisions cannot be carried out without
the consent of the person to whom they are thus declared to be
"subject." A title which is pronounced to be "subject to" anything or
anybody cannot be said to be absolute till that subjection is removed.
There have been some definitions and limitations by high legal authority
of the methods in which this Indian "right of occupancy" might be
extinguished even by conquest.
"The title by conquest is acquired and maintained by force. The
conqueror prescribes its limits. Humanity, however, acting on public
opinion, has established as a general rule that the conquered shall not
be wantonly oppressed, and that their condition shall remain as eligible
as is compatible with the objects of the conquest. Usually they are
incorporated with the victorious nation, and become subjects or citizens
of the government with which they are connected. *** When this
incorporation is practicable, humanity demands, and a wise policy
requires, that the rights of the conquered to property should remain
unimpaired; that the new subjects should be governed as equitably as the
old. *** When the conquest is complete, and the conquered inhabitants
can be blended with the conquerors, or safely governed as a distinct
people, public opinion, which not even the conqueror can disregard,
imposes these restraints upon him, and he cannot neglect them without
injury to his fame, and hazard to his power."[3]
Footnote 3:
Peters, United States Statutes at Large, vol. vii.
In the sadly famous case of the removal of the Cherokee tribe from
Georgia, it is recorded as the opinion of our Supreme Court that "the
Indians are acknowledged to have an unquestionable, and heretofore
unquestioned, right to the lands they occupy until that right shall be
extinguished by a voluntary cession to the Government." *** "The Indian
nations have always been considered as distinct independent political
communities, retaining their original natural rights as the undisputed
possessors of the soil, from time immemorial, with the single exception
of that imposed by irresistible power, which excluded them from
intercourse with any other European potentate than the first discoverer
of the coast of the particular region claimed; and this was a
restriction which those European potentates imposed on themselves as
well as on the Indians. The very term 'nation,' so generally applied to
them, means 'a people distinct from others.' The Constitution, by
declaring treaties already made, as well as those to be made, to be the
supreme law of the land, has adopted and sanctioned the previous
treaties with the Indian nations, and consequently admits their rank
among those powers who are capable of making treaties. The words
'treaty' and 'nation' are words of our own language, selected in our
diplomatic and legislative proceedings by ourselves, having each a
definite and well understood meaning. We have applied them to Indians as
we have applied them to other nations of the earth. They are applied to
all in the same sense."[4]
Footnote 4:
Worcester _vs._ State of Georgia, 6 Peters, 515.
In another decision of the Supreme Court we find still greater emphasis
put upon the Indian right of occupancy, by stating it as a right, the
observance of which was stipulated for in treaties between the United
States and other nations.
"When the United States acquired and took possession of the Floridas,
the treaties which had been made with the Indian tribes before the
acquisition of the territory by Spain and Great Britain remained in
force over all the ceded territory, as the law which regulated the
relations with all the Indians who were parties to them, and were
binding on the United States by the obligation they had assumed by the
Louisiana treaty as a supreme law of the land.
"The treaties with Spain and England before the acquisition of Florida
by the United States, which guaranteed to the Seminole Indians their
lands, according to the right of property with which they possessed
them, were adopted by the United States, who thus became the protectors
of all the rights they (the Indians) had previously enjoyed, or could of
right enjoy, under Great Britain or Spain, as individuals or nations, by
any treaty to which the United States thus became parties in 1803. ***
"The Indian right to the lands as property was not merely of possession;
that of alienation was concomitant; both were equally secured,
protected, and guaranteed by Great Britain and Spain, subject only to
ratification and confirmation by the license, charter, or deed from the
government representing the king." ***
The laws made it necessary, when the Indians sold their lands, to have
the deeds presented to the governor for confirmation. The sales by the
Indians transferred the kind of right which they possessed; the
ratification of the sale by the governor must be regarded as a
relinquishment of the title of the Crown to the purchaser, and no
instance is known of refusal of permission to sell, or of the rejection
of an Indian sale.[5]
Footnote 5:
United States _vs._ Clark, 9 Peters, 168.
"The colonial charters, a great portion of the individual grants by the
proprietary and royal governments, and a still greater portion by the
States of the Union after the Revolution, were made for lands within the
Indian hunting-grounds. North Carolina and Virginia, to a great extent,
paid their officers and soldiers of the Revolutionary War by such
grants, and extinguished the arrears due the army by similar means. It
was one of the great resources which sustained the war, not only by
those States but by other States. The ultimate fee, encumbered with the
right of occupancy, was in the Crown previous to the Revolution, and in
the States afterward, and subject to grant. This right of occupancy was
protected by the political power, and respected by the courts until
extinguished." *** "So the Supreme Court and the State courts have
uniformly held."[6]
Footnote 6:
Clark _vs._ Smith, 13 Peters.
President Adams, in his Message of 1828, thus describes the policy of
the United States toward the Indians at that time:
"At the establishment of the Federal Government the principle was
adopted of considering them as foreign and independent powers, and also
as proprietors of lands. As independent powers, we negotiated with them
by treaties; as proprietors, we purchased of them all the land which we
could prevail on them to sell; as brethren of the human race, rude and
ignorant, we endeavored to bring them to the knowledge of religion and
letters."
Kent says: "The European nations which, respectively, established
colonies in America, assumed the ultimate dominion to be in themselves,
and claimed the exclusive right to grant a title to the soil, subject
only to the Indian right of occupancy. The natives 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, though not to dispose of the soil at their own will, except
to the government claiming the right of pre-emption." *** "The United
States adopted the same principle; and their exclusive right to
extinguish the Indian title by purchase or conquest, and to grant the
soil and exercise such a degree of sovereignty as circumstances
required, has never been judicially questioned."
Kent also says, after giving the Supreme Court decision in the case of
Johnson _vs._ M'Intosh: "The same court has since been repeatedly called
upon to discuss and decide great questions concerning Indian rights and
title, and the subject has of late become exceedingly grave and
momentous, affecting the faith and the character, if not the
tranquillity and safety, of the Government of the United States."
In Gardner's "Institutes of International Law" the respective rights to
land of the Indians and the whites are thus summed up: "In our Union the
aborigines had only a possessory title, and in the original thirteen
States each owned in fee, _subject to the Indian right_, all ungranted
lands within their respective limits; and beyond the States the residue
of the ungranted lands were vested in fee in the United States, _subject
to the Indian possessory_ right, to the extent of the national limits."
Dr. Walker, in his "American Law," makes a still briefer summary: "The
American doctrine on the subject of Indian title is briefly this: The
Indians have no fee in the lands they occupy. The fee is in the
Government. They cannot, of course, aliene them either to nations or
individuals, the exclusive right of pre-emption being in the Government.
Yet they have a qualified right of occupancy which can only be
_extinguished by treaty, and upon fair compensation_; until which they
are entitled to be protected in their possession."
"Abbott's Digest," one of the very latest authorities, reiterates the
same principle: "The right of occupancy has been recognized in countless
ways, among others by many decisions of courts and opinions of
attorney-generals."
It being thus established that the Indian's "right of occupancy" in his
lands was a right recognized by all the Great Powers discovering this
continent, and accepted by them as a right necessary to be extinguished
either by purchase or conquest, and that the United States, as a nation,
has also from the beginning recognized, accepted, and acted upon this
theory, it is next in order to inquire whether the United States has
dealt honorably or dishonorably by the Indians in this matter of their
recognized "right of occupancy."
In regard to the actions of individuals there is rarely much room for
discussion whether they be honorable or dishonorable, the standard of
honor in men's conduct being, among the civilized, uniform, well
understood, and undisputed. Stealing, for instance, is everywhere held
to be dishonorable, as well as impolitic; lying, also, in all its forms;
breaking of promises and betrayals of trust are scorned even among the
most ignorant people. But when it comes to the discussion of the acts of
nations, there seems to be less clearness of conception, less uniformity
of standard of right and wrong, honor and dishonor. It is necessary,
therefore, in charging a government or nation with dishonorable conduct,
to show that its moral standard ought in nowise to differ from the moral
standard of an individual; that what is cowardly, cruel, base in a man,
is cowardly, cruel, base in a government or nation. To do this, it is
only needful to look into the history of the accepted "Law of Nations,"
from the days of the Emperor Justinian until now.
The Roman jurisconsults employed as synonymous, says Wheaton, "the two
expressions, 'jus gentium,' that law which is found among all the known
nations of the earth, and 'jus naturale,' founded on the general nature
of mankind; nevertheless, of these two forms of the same idea, the first
ought to be considered as predominant, since it as well as the 'jus
civile' was a positive law, the origin and development of which must be
sought for in history."
Nations being simply, as Vattel defines them, "societies of men united
together," it is plain that, if there be such a thing as the "law of
nature," which men as individuals are bound to obey, that law is also
obligatory on the "societies" made up of men thus "united."
Hobbes divides the law of nature into that of man and that of States,
saying, "The maxims of each of these laws are precisely the same; but as
States, once established, assume personal properties, that which is
termed the natural law when we speak of the duties of individuals is
called the law of nations when applied to whole nations or States." The
Emperor Justinian said, "The law of nations is common to the whole human
race."
Grotius draws the distinction between the law of nature and the law of
nations thus: "When several persons at different times and in various
places maintain the same thing as certain, such coincidence of sentiment
must be attributed to some general cause. Now, in the questions before
us, that cause must necessarily be one or the other of these two—either
a just consequence drawn from natural principles, or a universal
consent; the former discovers to us the law of nature, and the latter
the law of nations."
Vattel defines the "necessary law of nations" to be the "application of
the law of nature to nations." He says: "It is 'necessary,' because
nations are absolutely bound to observe it. This law contains the
precepts prescribed by the law of nature to States, on whom that law is
not less obligatory than on individuals; since States are composed of
men, their resolutions are taken by men, and the law of nations is
binding on all men, under whatever relation they act. This is the law
which Grotius, and those who follow him, call the Internal Law of
Nations, on account of its being obligatory on nations in the point of
conscience."
Vattel says again: "Nations being composed of men naturally free and
independent, and who before the establishment of civil societies lived
together in the state of nature, nations or sovereign States are to be
considered as so many free persons living together in the state of
nature."
And again: "Since men are naturally equal, and a perfect equality
prevails in their right and obligations as equally proceeding from
nature, nations composed of men, and considered as so many free persons
living together in the state of nature, are naturally equal, and inherit
from nature the same obligations and rights. Power or weakness does not
in this respect produce any difference. A dwarf is as much a man as a
giant; a small republic no less a sovereign State than the most powerful
kingdom."
In these two last sentences is touched the key-note of the true law of
nations, as well as of the true law for individuals—justice. There is
among some of the later writers on jurisprudence a certain fashion of
condescending speech in their quotations from Vattel. As years have gone
on, and States have grown more powerful, and their relations more
complicated by reason of selfishness and riches, less and less has been
said about the law of nature as a component and unalterable part of the
law of nations. Fine subtleties of definition, of limitation have been
attempted. Hundreds of pages are full of apparently learned
discriminations between the parts of that law which are based on the law
of nature and the parts which are based on the consent and usage of
nations. But the two cannot be separated. No amount of legality of
phrase can do away with the inalienable truth underlying it. Wheaton and
President Woolsey to-day say, in effect, the same thing which Grotius
said in 1615, and Vattel in 1758.
Says Wheaton: "International law, as understood among civilized nations,
may be defined as consisting of those rules of conduct which reason
deduces as consonant to justice from the nature of the society existing
among independent nations."
President Woolsey says: "International law, in a wide and abstract
sense, would embrace those rules of intercourse between nations which
are deduced from their rights and moral claims; or, in other words, it
is the expression of the jural and moral relations of States to one
another.
"If international law were not made up of rules for which reasons could
be given satisfactory to man's intellectual and moral nature, if it were
not built on principles of right, it would be even less of a science
than is the code which governs the actions of polite society."
It is evident, therefore, that the one fundamental right, of which the
"law of nations" is at once the expression and the guardian, is the
right of every nation to just treatment from other nations, the right of
even the smallest republic equally with "the most powerful kingdom."
Just as the one fundamental right, of which civil law is the expression
and guardian, is the right of each individual to just treatment from
every other individual: a right indefeasible, inalienable, in nowise
lessened by weakness or strengthened by power—as majestic in the person
of "the dwarf" as in that of "the giant."
Of justice, Vattel says: "Justice is the basis of all society, the sure
bond of all commerce. ***
"All nations are under a strict obligation to cultivate justice toward
each other, to observe it scrupulously and carefully, to abstain from
anything that may violate it. ***
"The right of refusing to submit to injustice, of resisting injustice by
force if necessary, is part of the law of nature, and as such recognized
by the law of nations.
"In vain would Nature give us a right to refuse submitting to injustice,
in vain would she oblige others to be just in their dealings with us, if
we could not lawfully make use of force when they refused to discharge
this duty. The just would lie at the mercy of avarice and injustice, and
all their rights would soon become useless. From the foregoing right
arise, as two distinct branches, first, the right of a just defence,
which belongs to every nation, or the right of making war against
whoever attacks her and her rights; and this is the foundation of
defensive war. Secondly, the right to obtain justice by force, if we
cannot obtain it otherwise, or to pursue our right by force of arms.
This is the foundation of offensive war."
Justice is pledged by men to each other by means of promises or
contracts; what promises and contracts are between men, treaties are
between nations.
President Woolsey says: "A contract is one of the highest acts of human
free-will: it is the will binding itself in regard to the future, and
surrendering its right to change a certain expressed intention, so that
it becomes, morally and jurally, a wrong to act otherwise.
"National contracts are even more solemn and sacred than private ones,
on account of the great interests involved; of the deliberateness with
which the obligations are assumed; of the permanence and generality of
the obligations, measured by the national life, and including thousands
of particular cases; and of each nation's calling, under God, to be a
teacher of right to all, within and without its borders."
Vattel says: "It is a settled point in natural law that he who has made
a promise to any one has conferred upon him a real right to require the
thing promised; and, consequently, that the breach of a perfect promise
is a violation of another person's right, and as evidently an act of
injustice as it would be to rob a man of his property. ***
"There would no longer be any security, no longer any commerce between
mankind, if they did not think themselves obliged to keep faith with
each other, and to perform their promises."
It is evident that the whole weight of the recognized and accepted law
of nations is thrown on the side of justice between nation and nation,
and is the recognized and accepted standard of the obligation involved
in compacts between nation and nation.
We must look, then, among the accepted declarations of the law of
nations for the just and incontrovertible measure of the shame of
breaking national compacts, and of the wickedness of the nations that
dare to do it.
We shall go back to the earliest days of the world, and find no dissent
from, no qualification of the verdict of the infamy of such acts. Livy
says of leagues: "Leagues are such agreements as are made by the command
of the supreme power, and whereby the whole nation is made liable to the
wrath of God if they infringe it."
Grotius opens his "Admonition," in conclusion of the third book of his
famous "Rights of War and Peace," as follows: "'For it is by faith,'
saith Cicero, 'that not commonwealths only, but that grand society of
nations is maintained.' 'Take away this,' saith Aristotle, 'and all
human commerce fails.' It is, therefore, an execrable thing to break
faith on which so many lives depend. 'It is,' saith Seneca, 'the best
ornament wherewith God hath beautified the rational soul; the strongest
support of human society, which ought so much the more inviolably to be
kept by sovereign princes by how much they may sin with greater license
and impunity than other men. Wherefore take away faith, and men are more
fierce and cruel than savage beasts, whose rage all men do horribly
dread. Justice, indeed, in all other of her parts hath something that is
obscure; but that whereunto we engage our faith is of itself clear and
evident; yea, and to this very end do men pawn their faith, that in
their negotiations one with another all doubts may be taken away, and
every scruple removed. How much more, then, doth it concern kings to
keep their faith inviolate, as well for conscience' sake as in regard to
their honor and reputation, wherein consists the authority of a
kingdom.'"
Vattel says: "Treaties are no better than empty words, if nations do not
consider them as respectable engagements, as rules which are to be
inviolably observed by sovereigns, and held sacred throughout the whole
earth.
"The faith of treaties—that firm and sincere resolution, that invariable
constancy in fulfilling our engagements, of which we make profession in
a treaty—is therefore to be held sacred and inviolable between the
nations of the earth, whose safety and repose it secures; and if mankind
be not wilfully deficient in their duty to themselves, infamy must ever
be the portion of him who violates his faith. ***
"He who violates his treaties, violates at the same time the law of
nations, for he disregards the faith of treaties, that faith which the
law of nations declares sacred; and, so far as dependent on him, he
renders it vain and ineffectual. Doubly guilty, he does an injury to his
ally, and he does an injury to all nations, and inflicts a wound on the
great society of mankind. ***
"On the observance and execution of treaties," said a respectable
sovereign, "depends all the security which princes and States have with
respect to each other, and no dependence could henceforward be placed in
future conventions if the existing ones were not to be observed."
It is sometimes said, by those seeking to defend, or at least palliate,
the United States Government's repeated disregard of its treaties with
the Indians, that no Congress can be held responsible for the acts of
the Congress preceding it, or can bind the Congress following it; or, in
other words, that each Congress may, if it chooses, undo all that has
been done by previous Congresses. However true this may be of some
legislative acts, it is clearly not true, according to the principles of
international law, of treaties.
On this point Vattel says: "Since public treaties, even those of a
personal nature, concluded by a king, or by another sovereign who is
invested with sufficient power, are treaties of State, and obligatory on
the whole nation, real treaties, which were intended to subsist
independently of the person who has concluded them, are undoubtedly
binding on his successors; and the obligation which such treaties impose
on the State passes successively to all her rulers as soon as they
assume the public authority. The case is the same with respect to the
rights acquired by those treaties. They are acquired for the State, and
successively pass to her conductors."
Von Martens says: "Treaties, properly so called, are either personal or
real. They are personal when their continuation in force depends on the
person of the sovereign or his family, with whom they have been
contracted. They are real when their duration depends on the State,
independently of the person who contracts. Consequently, all treaties
between republics must be real. All treaties made for a time specified
or forever are real. ***
"This division is of the greatest importance, because real treaties
never cease to be obligatory, except in cases where all treaties become
invalid. Every successor to the sovereignty, in virtue of whatever title
he may succeed, is obliged to observe them without their being renewed
at his accession."
Wheaton says: "They (treaties) continue to bind the State, whatever
intervening changes may take place in its internal constitution or in
the persons of its rulers. The State continues the same, notwithstanding
such change, and consequently the treaty relating to national objects
remains in force so long as the nation exists as an independent State."
There is no disagreement among authorities on this point. It is also
said by some, seeking to defend or palliate the United States
Government's continuous violations of its treaties with the Indians,
that the practice of all nations has been and is to abrogate a treaty
whenever it saw good reason for doing so. This is true; but the treaties
have been done away with in one of two ways, either by a mutual and
peaceful agreement to that effect between the parties who had made
it—the treaty being considered in force until the consent of both
parties to its abrogation had been given—or by a distinct avowal on the
part of one nation of its intention no longer to abide by it, and to
take, therefore, its chances of being made war upon in consequence.
Neither of these courses has been pursued by the United States
Government in its treaty-breaking with the Indians.
Vattel says, on the dissolution of treaties: "Treaties may be dissolved
by mutual consent at the free-will of the contracting powers."
Grotius says: "If either party violate the League, the other party is
freed; because each Article of the League hath the form and virtue of a
condition."
Kent says: "The violation of any one article of a treaty is a violation
of the whole treaty. ***
"It is a principle of universal jurisprudence that a compact cannot be
rescinded by one party only, if the other party does not consent to
rescind it, and does no act to destroy it. ***
"To recommence a war by breach of the articles of peace, is deemed much
more odious than to provoke a war by some new demand or aggression; for
the latter is simply injustice, but in the former case the party is
guilty both of perfidy and injustice."
It is also said, with unanswerable irrelevancy, by some who seek to
defend or palliate the United States Government's continuous violation
of its treaties with the Indians, that it was, in the first place,
absurd to make treaties with them at all, to consider them in any sense
as treaty-making powers or nations. The logic of this assertion, made as
a justification for the breaking of several hundred treaties, concluded
at different times during the last hundred years, and broken as fast as
concluded, seems almost equal to that of the celebrated defence in the
case of the kettle, which was cracked when it was lent, whole when
returned, and, in fact, was never borrowed at all. It would be a waste
of words to reason with minds that can see in this position any shelter
for the United States Government against the accusation of perfidy in
its treaty relations with the Indians.
The statement is undoubtedly a true one, that the Indians, having been
placed in the anomalous position as tribes, of "domestic dependent
nations," and as individuals, in the still more anomalous position of
adult "wards," have not legally possessed the treaty-making power. Our
right to put them, or to consider them to be in those anomalous
positions, might be successfully disputed; but they, helpless, having
accepted such positions, did, no doubt, thereby lose their right to be
treated with as nations. Nevertheless, that is neither here nor there
now: as soon as our Government was established, it proceeded to treat
with them as nations by name and designation, and with precisely the
same forms and ratifications that it used in treating with other
nations; and it continued to treat with them as nations by name and
designation, and with continually increasing solemnity of asseveration
of good intent and good faith, for nearly a century. The robbery, the
cruelty which were done under the cloak of this hundred years of
treaty-making and treaty-breaking, are greater than can be told. Neither
mountains nor deserts stayed them; it took two seas to set their bounds.
In 1871, Congress, either ashamed of making treaties only to break them,
or grudging the time, money, and paper it wasted, passed an act to the
effect that no Indian tribe should hereafter be considered as a foreign
nation with whom the United States might contract by treaty. There seems
to have been at the time, in the minds of the men who passed this act, a
certain shadowy sense of some obligation being involved in treaties; for
they added to the act a proviso that it should not be construed as
invalidating any treaties already made. But this sense of obligation
must have been as short-lived as shadowy, and could have had no element
of shame in it, since they forthwith proceeded, unabashed, to negotiate
still more treaties with Indians, and break them; for instance, the
so-called "Brunot Treaty" with the Ute Indians in Colorado, and one with
the Crow Indians in Montana—both made in the summer of 1873. They were
called at the time "conventions" or "agreements," and not "treaties;"
but the difference is only in name.
They stated, in a succession of numbered articles, promises of payment
of moneys, and surrenders and cessions of land, by both parties; were to
be ratified by Congress before taking effect; and were understood by the
Indians agreeing to them to be as binding as if they had been called
treaties. The fact that no man's sense of justice openly revolted
against such subterfuges, under the name of agreements, is only to be
explained by the deterioration of the sense of honor in the nation. In
the days of Grotius there were men who failed to see dishonor in a trick
if profit came of it, and of such he wrote in words whose truth might
sting to-day as, no doubt, it stung then:
"Whereas there are many that think it superfluous to require that
justice from a free people or their governors which they exact daily
from private men, the ground of this error is this: because these men
respect nothing in the law but the profit that ariseth from it, which in
private persons, being single and unable to defend themselves, is plain
and evident; but for great cities, that seem to have within themselves
all things necessary for their own well-being, it doth not so plainly
appear that they have any need of that virtue called justice which
respects strangers."
These extracts from unquestioned authorities on international law prove
that we may hold nations to standards of justice and good faith as we
hold men; that the standards are the same in each case; and that a
nation that steals and lies and breaks promises, will no more be
respected or unpunished than a man who steals and lies and breaks
promises. It is possible to go still farther than this, and to show that
a nation habitually guilty of such conduct might properly be dealt with
therefore by other nations, by nations in no wise suffering on account
of her bad faith, except as all nations suffer when the interests of
human society are injured.
"The interest of human society," says Vattel, "would authorize all the
other nations to form a confederacy, in order to humble and chastise the
delinquent." *** When a nation "regards no right as sacred, the safety
of the human race requires that she should be repressed. To form and
support an unjust pretension is not only doing an injury to the party
whose interests are affected by that pretension; but to despise justice
in general is doing an injury to all nations."
The history of the United States Government's repeated violations of
faith with the Indians thus convicts us, as a nation, not only of having
outraged the principles of justice, which are the basis of international
law; and of having laid ourselves open to the accusation of both cruelty
and perfidy; but of having made ourselves liable to all punishments
which follow upon such sins—to arbitrary punishment at the hands of any
civilized nation who might see fit to call us to account, and to that
more certain natural punishment which, sooner or later, as surely comes
from evil-doing as harvests come from sown seed.
To prove all this it is only necessary to study the history of any one
of the Indian tribes. I propose to give in the following chapters merely
outline sketches of the history of a few of them, not entering more into
details than is necessary to show the repeated broken faith of the
United States Government toward them. A full history of the wrongs they
have suffered at the hands of the authorities, military and civil, and
also of the citizens of this country, it would take years to write and
volumes to hold.
There is but one hope of righting this wrong. It lies in appeal to the
heart and the conscience of the American people. What the people demand,
Congress will do. It has been—to our shame be it spoken—at the demand of
part of the people that all these wrongs have been committed, these
treaties broken, these robberies done, by the Government.
So long as there remains on our frontier one square mile of land
occupied by a weak and helpless owner, there will be a strong and
unscrupulous frontiersman ready to seize it, and a weak and unscrupulous
politician, who can be hired for a vote or for money, to back him.
The only thing that can stay this is a mighty outspoken sentiment and
purpose of the great body of the people. Right sentiment and right
purpose in a Senator here and there, and a Representative here and
there, are little more than straws which make momentary eddies, but do
not obstruct the tide. The precedents of a century's unhindered and
profitable robbery have mounted up into a very Gibraltar of defence and
shelter to those who care for nothing but safety and gain. That such
precedents should be held, and openly avowed as standards, is only one
more infamy added to the list. Were such logic employed in the case of
an individual man, how quick would all men see its enormity. Suppose
that a man had had the misfortune to be born into a family whose name
had been blackened by generations of criminals; that his father, his
grandfather, and his great-grandfather before them had lived in prisons,
and died on scaffolds, should that man say in his soul, "Go to! What is
the use? I also will commit robbery and murder, and get the same gain by
it which my family must have done?" Or shall he say in his soul, "God
help me! I will do what may be within the power of one man, and the
compass of one generation, to atone for the wickedness, and to make
clean the name of my dishonored house!"
What an opportunity for the Congress of 1880 to cover itself with a
lustre of glory, as the first to cut short our nation's record of
cruelties and perjuries! the first to attempt to redeem the name of the
United States from the stain of a century of dishonor!