The proper treatment of the Indian question requires that we deal with
the issues arising out of the peculiar relations of the aboriginal
tribes of the continent to the now dominant race, in much the same
spirit--profoundly philanthropic at bottom, but practical, sceptical,
and severe in the discussion of methods and in the maintenance of
administrative discipline--with which all Christian nations, and
especially the English-speaking, nations, have learned to meet the
kindred difficulties of pauperism. It is in no small degree the lack of
such a spirit in the conduct of Indian affairs, which has rendered the
efforts and expenditures of our government for the advancement of the
race so ineffectual in the past; and for this the blame attaches mainly
to the want of correct information and of settled convictions respecting
this subject, among our people at large. So long as the country
fluctuates in an alternation of sentimental and brutal impulses,
according as the wrongs done to the Indian or the wrongs done by him are
at the moment more distinctly in mind, it cannot be wondered at that
Congress should be reluctant to undertake the re-organization of the
Indian service on any large and lasting plan, or that the Indian Office
should hesitate to cut out for itself more work than it can look to make
up in the interval between sessions.
What, to take a recent and memorable instance, would have been the fate
of any scheme of Indian legislation which was at its parliamentary
crisis when the murder of Gen. Canby occurred? The work of years might
well have been undone under the popular excitement attendant upon that
atrocious deed. Yet it would be quite as rational to denounce the
established systems for the care and control of the insane, and to turn
all the inmates of our asylums loose upon the community because one
maniac had in an access of frenzy murdered his keeper, as it would have
been to abandon the established Indian policy of the government, the
only fault of which is that it is incomplete, on account of any thing
that Capt. Jack and his companions might do in their furious despair.
The more atrocious their deed, the more conspicuous the justification of
the system of care and control from which this one small band of
desperadoes had for the moment broken free to work such horrid mischief.
Yet there is much reason to believe, that, had the Indian service at
that time depended, as every service must once a year come to depend, on
the votes of Congressmen, it would have failed, temporarily at least,
for the want of them. Nor is it only acts of exceptional ferocity on the
part of marauding bands, which have sufficed to check all the gracious
impulses of the national compassion. The reasons which have existed in
the public mind in favor of the Indian policy of the government have not
always been found of a sufficiently robust and practical nature to
withstand the weariness of sustained effort, and the inevitable
disappointments of sanguine expectation; and thus the service has at
times suffered from the general indifference scarcely less than from the
sharpest revulsions of public feeling.
Much has been said within the past three years, of the Indian policy of
the administration; and, if by this is meant that the policy of the
government in dealing with the Indians has become more and more one of
administration, and less and less one of law, the phrase, with the
exception of an article too many, is well enough. As matter of fact, the
sole Indian policy of the United States deserving the name was adopted
early in the century; and it is only of late years that it has been
seriously undermined by the current of events; while it is within the
duration of the present administration that the blow has been struck by
legislation, at the already tottering structure, which has brought it
nearly to its fall.
To throw upon a dozen religious and benevolent societies the
responsibility of advising the executive in the appointment of the
agents of the Indian service is not a policy. To buy off a few bands,
more insolent than the rest, by a wholesale issue of subsistence and the
lavish bestowal of presents, without reference to the disposition of the
savages to labor for their own support, and even without reference to
the good or ill desert of individuals,--this, though doubtless expedient
in the critical situation of our frontier population, is the merest
expediency, not in any sense a policy. Yet the two features specified
have been the only ones that have been added to the scheme of Indian
control during the continuance of the present administration; while, on
the other side, an irreparable breach has been effected in that scheme
by the action of powerful social forces, as well as by the direct
legislative contravention of its most vital principle.
From the earliest settlement of the country by the whites, down to 1817,
the Colonies, and afterwards the thirteen States, met the emergencies of
Indian contact as they arose. The parties to negotiation were often
ill-defined, and the forms of procedure much as happened. Not only did
each Colony, prior to 1774, conduct its own Indian relations, generally
with little or no reference to the engagements or the interests of its
white neighbors; but isolated settlements and even enterprising
individuals made their own peace with the savages, or received the soil
by deed from its native proprietors. Nor on the part of the Indians was
there much more regard for strict legitimacy. Local chieftains were not
infrequently ready to convey away lands that did not belong to them; and
when a Colony grown powerful wished a pretext for usurpation, almost any
Indian would do to make a treaty with or get a title from. It is
scarcely necessary to say of negotiations thus conducted, that they
embraced no general scheme of Indian relations; that they aimed
invariably at the accomplishment of immediate and more or less local
objects, and often attained these at the cost of much embarrassment in
the future, and even at the expense of neighboring settlements and
colonies.
Throughout the history of Colonial transactions, we find few traces of
any thing like impatience of the claims of the Indians to equality in
negotiation and in intercourse. Neither the power nor the character of
the aborigines was then despised as now. Strong in his native illusions,
his warlike prestige unbroken, the Indian still retained all that
natural dignity of bearing which has been found so impressive even in
his decline. The early literature of the country testifies to the
disposition of the people to hold the more romantic view of the Indian
character, even where the animosities of race were deadliest; nor does
it seem that the general sentiment of the Colonies regarded the
necessity of treating on equal terms with the great confederacies of
that day as in any degree more derogatory than the civilized powers of
Europe in the same period esteemed the necessity of maintaining
diplomatic relations with the great Cossack power of the North. Indeed,
the treaty with the Delawares in 1778 actually contemplated the
formation of a league of friendly tribes under the hegemony of the
Delawares, to constitute the fourteenth State of the confederation then
in arms against Great Britain, with a proportional representation in
Congress. And this was proposed, not by men accustomed to see negroes
voting at the polls, and even sitting in the Senate of the United
States, but by our conservative and somewhat aristocratic ancestors.
But after the establishment of our national independence, incidental to
which had been the destruction of the warlike power of the "Six
Nations," the nearest and most formidable of all the confederacies known
to Colonial history, we note a louder tone taken--as was natural
enough--with the aboriginal tribes, a greater readiness to act
aggressively, and an increasing confidence in the competency of the
white race to populate the whole of this continent. Earlier Indian wars
had been in a high sense a struggle for life on the part of the infant
settlements: they had been engaged in reluctantly, after being postponed
by every expedient and every artifice; but the conquest of the territory
north-west of the Ohio appears to have been entered upon more from a
statesmanlike comprehension of the wants of the united and expanding
republic, than from the pressure of immediate danger. It was but natural
that the concentration of the fighting power of the States, the
consciousness of a common destiny, and the cession of the western
territory to the general government, should create an impatience of
Indian occupation which neither the separate Colonies nor the States,
struggling for independence, had felt. Yet even so we do not find that,
from 1783 to 1817, the United States did much more than meet the
exigency most nearly and clearly at hand.
In the latter year, however, the negotiations for a removal of the
Cherokees west of the Mississippi, although commenced under strong
pressure from the much-afflicted State of Georgia, and at the time
without contemplation of an extension of the system to tribes less
immediately in the path of settlement, mark the beginnings of a distinct
Indian policy. In 1825 the scheme for the general deportation of the
Indians east of the Mississippi was fairly inaugurated in the presidency
of Mr. Monroe; Mr. Calhoun, his secretary of war, proposing the details
of the measure. In 1834 the policy thus inaugurated was completed by
the passage of the Indian Intercourse Act, though large numbers still
remained to be transported West.
The features of this policy were first, the removal of the tribes beyond
the limits of settlement; second, the assignment to them in perpetuity,
under solemn treaty sanctions, of land sufficient to enable them to
subsist by fishing and hunting, by stock-raising, or by agriculture,
according to their habits and proclivities; third, their seclusion from
the whites by stringent laws forbidding intercourse; fourth, the
government of the Indians through their own tribal organizations, and
according to their own customs and laws.
This policy, the character and relations of the two races being taken
into account, we must pronounce one of sound and far-reaching
statesmanship, notwithstanding that an advance of population altogether
unprecedented in history has already made much of it obsolete, and
rendered necessary a general re-adjustment of its details.
The first event which impaired the integrity of the scheme of President
Monroe was the flight of the Mormons, under the pressure of social
persecution, across the Plains in 1847. The success of this people in
treating with the Indians has often been noted, and has been made the
occasion of many unjust reflections upon the United States, as if a
popular government, giving, both of necessity and of choice, the largest
liberty to pioneer enterprise, could be reasonably expected to preserve
peaceful relations with remote bands of savages as effectively as a
political and religious despotism, keeping its membership compact and
close in hand. But, while the Mormons have certainly been successful in
maintaining good terms with the natives of the plains, it is not so
certain that their influence upon the Indians has been advantageous to
the government, or to the white settlers not of the church. It clearly
has been for their interest to attach the natives to themselves rather
than to the government; it clearly has been in their power to direct a
great many agencies to that end; and it will probably require more faith
in Mormon virtue than the majority of us possess to keep alive much of a
doubt that they have actually done so. We certainly have the opinion of
many persons well informed that it has been the constant policy of the
Latter-Day Saints to teach the Indians to look to them rather than to
the government as their benefactors and their protectors; to represent,
as far as possible through agents and interpreters in their interest,
the goods and supplies received from the United States as derived from
the bounty of the church; to stir up, for special purposes or for
general ends, troubles between the natives and the encroaching whites,
east, west, and south; and, finally, so to alienate from the government
and attach to themselves the Utes, Shoshones and Bannocks, as to assure
themselves of their aid in the not improbable event of a last desperate
struggle for life with the power of the United States.
The next event historically which tended to the disruption of the policy
of seclusion was the discovery of gold upon the Pacific slope, which in
three years replaced the few insinuating priests and indolent
_rancheros_, who had previously formed the white population of the
coast, with a hundred thousand eager gold-hunters. That the access of
such a population--bold, adventurous, prompt to violence, reckless, and
too often wantonly unjust and cruel--should stir up trouble and strife
with the sixty thousand natives, upon whom they pressed at every point
in their eager search for the precious metals, was a thing of course.
The Oregon War followed, and occasional affairs like that at Ben
Wright's Cave, leaving a heritage of hate from which such fruits as the
recent Modoc War are not inaptly gathered.
In 1855-6 occurred the great movement, mainly under a political impulse,
which carried population beyond the Missouri. In two or three years the
tribes and bands which were native to Kansas and Nebraska, as well as
those which had been removed from States east of the Mississippi, were
suffering the worst effects of white intrusion. Of the Free-State party,
not a few zealous members seemed disposed to compensate themselves for
their benevolent efforts on behalf of the negro by crowding the Indian
to the wall; while the slavery propagandists steadily maintained their
consistency by impartially persecuting the members of both the inferior
races.
Thus far we have shown how, instead of the natural boundary between the
races which was contemplated in the establishment of the Indian policy
of the government under Pres. Monroe, two lines of settlement had, prior
to 1860, been pushed against the Indians,--one eastward from the
Pacific, one westward from the Missouri, driving the natives in many
cases from the soil guaranteed to them by treaty, and otherwise leaving
them at a hundred points in dangerous contact with a border population
not apt to be nice in its sense of justice, or slow to retaliate real or
fancied injuries; while, during the same period, a colony of religious
fanatics, foreign to the faith, and very largely also to the blood, of
our people, was planted in the very heart of the Indian country, with
passions strongly aroused against the government, and with interests
opposed to the peace and security of the frontier.
But it was not until after the Civil War that the progress of events
dealt its heaviest blow at the policy of Indian seclusion. In 1867-8 the
great plough of industrial civilization drew its deep furrow across the
continent, from the Missouri to the Pacific, as a sign of dissolution to
the immemorial possessors of the soil. Already the Pacific Railroad has
brought changes which, without it, might have been delayed for half a
century. Not only has the line of settlement been made continuous from
Omaha to Sacramento, so far as the character of the soil will permit;
but from a score of points upon the railroad population has gone north
and gone south, following up the courses of the streams, and searching
out every trace of gold upon the mountains, till recesses have been
penetrated which five years ago were scarcely known to trappers and
guides, and lodgement has been effected upon many even of the more
remote reservations. The natural effects of this introduction by the
railroad of white population into the Indian country have not yet been
wholly wrought. There are still reservations where the seclusion of the
Indians is practically maintained by the ill-repressed hostility of
tribes; some, where the same result is secured by the barrenness or
inaccessibility of the regions in which they are situated; but it is
evident that the lapse of another such five years will find every
reservation between the Mississippi River and the Rocky Mountains
surrounded, and to a degree penetrated, by prospectors and pioneers,
miners, ranchmen, or traders. Against the intrusion of these classes, in
the numbers in which they are now appearing in the Indian country, the
Intercourse Act of 1834 is wholly ineffective. It was an admirable
weapon against the single intruder: it avails nothing against the
lawless combinations of squatter territories.
While the movements of population have thus in great part destroyed, and
threaten soon utterly to destroy, at once the seclusion in which it was
hoped the native tribes might find opportunity for the development of
their better qualities, and the natural resources to which, in the long
interval that must precede the achievement of true industrial
independence by a people taught through centuries of barbarous
traditions to despise labor, the Indian might look for subsistence,
Congress in 1871 struck the severest blow that remained to be given to
the Indian policy, in its fourth great feature,--that of the
self-government of tribes according to their own laws and customs,--by
declaring that "Hereafter no Indian nation or tribe within the territory
of the United States shall be acknowledged or recognized as an
independent nation, tribe, or power, with whom the United States may
contract by treaty."
In the face of three hundred and eighty-two treaties with Indian tribes,
ratified by the Senate as are treaties with foreign powers, this may
perhaps be accepted as quite the most conspicuous illustration in
history of the adage, "Circumstances alter cases."[L] Since Anthony
Wayne received the cession of pretty much the whole State of Ohio from
the Wyandots, Delawares, and Shawnees, times have indeed changed; and it
is fitting that we should change with them. The declaration of Congress
is well enough on grounds of justice and national honor; but it none the
less aims a deadly blow at the tribal autonomy which was made a vital
part of the original scheme of Indian control. The declaration cited
does not in terms deny the self-sufficiency of the tribe for the
purposes of internal self-government; but the immediate necessary effect
of it is further to weaken the already waning power of the chiefs, while
Congress yet fails to furnish any substitute for their authority, either
by providing for the organization of the tribes on more democratic
principles, with direct responsibility to the government, or by arming
the Indian agents with magisterial powers adequate to the exigency.
Under the traditional policy of the United States, the Indian agent was
a minister resident to a "domestic dependent nation." The Act of March
3, 1871, destroys the nationality, and leaves the agent in the anomalous
position of finding no authority within the tribe to which he can
address himself, yet having in himself no legal authority over the tribe
or the members of it. It is true, that, as matter of fact, agents, some
in greater and some in less degree, continue to exercise control after a
fashion over the movements of tribes and bands. This is partly due to
the force of habit, partly to superior intelligence, partly to the
discretion which the agent exercises in the distribution of the
government's bounty; but every year the control becomes less effectual,
and agents and chiefs complain more and more that they cannot hold the
young braves in check.
The above recital, however tedious, has been necessary in order to set
fairly forth the actual condition of the scheme of seclusion, which is
still, in profession and seeming, the policy of the government. It must
be evident from the recital, that the purposes of this policy are not
being answered, and that the increasing difficulties of the situation in
the wider and closer contact of the two races will soon compel Congress
to review the whole field of Indian affairs, and establish relations,
which, if they cannot in the nature of things be permanent, will at
least have reference to the facts of the present, and the probabilities
of the immediate future. Whenever Congress shall take up in earnest this
question of the disposition to be made of the Indian tribes, its choice
will clearly be between two antagonistic schemes,--seclusion and
citizenship. Either the government must place the Indians upon narrower
reservations, proportioned to their requirements for subsistence by
agriculture, and no longer by the chase,--reservations which shall be
located with the view of avoiding as much as possible the contact of the
races, and working as little hindrance as may be to the otherwise free
development of population; and around these put up the barriers of forty
years ago, re-enforced as the changed circumstances seem to require: or
the government must prepare to receive the Indians into the body of the
people, freely accepting, for them and for the general community, all
the dangers and inconveniences of personal contact and legal equality.
No middle ground is tenable. If substantial seclusion is not to be
maintained, at any cost, by the sequestration of tribes and by the rigid
prohibition of intercourse, it is worse than useless to keep up the
forms of reservations and non-intercourse. Many tribes are already as
fully subject to all the debasing influences of contact with the whites
as they could be if dispersed among the body of citizens; while yet they
are without any of the advantages popularly attributed to citizenship.
It requires no deep knowledge of human nature, and no very extensive
review of Congressional legislation, to assure us that many and powerful
interests will oppose themselves to a re-adjustment of the Indian tribes
between the Missouri and the Pacific, under the policy of seclusion and
non-intercourse. Railroad enterprises, mining enterprises, and land
enterprises of every name, will find any scheme that shall be seriously
proposed to be quite the most objectionable of all that could be
offered: every State, and every Territory that aspires to become a
State, will strive to keep the Indians as far as possible from its own
borders; while powerful combinations of speculators will make their
fight for the last acre of Indian lands with just as much rapacity as if
they had not already, in Western phrase, "gobbled" a hundred thousand
square miles of it.
In addition to the political, industrial, and speculative interests
which will thus oppose the restoration of the policy of Indian seclusion
from the shattered condition to which the events just recited have
reduced it, three classes of persons may be counted on to lend their
support to the plan of introducing the Indians, who have thus far been
treated as "the wards of the nation," directly into the body of our
citizenship. We have, first, those who have become impatient of the
demands made upon the time of Congress and the attention of the people
in the name of the Indians, and who wish, once for all, to have done
with them. Such impatience is neither unnatural nor wholly unreasonable.
It must be confessed that no good work ever made heavier drafts upon the
faith and patience of the philanthropic. What with the triviality of the
Indian character, the absurd punctilio with which, in his lowest estate,
he insists on embarrassing the most ordinary business, and his devotion
to sentiments utterly repugnant to our social and industrial genius;
what, again, with the endless variety of tribal relations and tribal
claims, and the complexity of tribal interests, aggravated by jealousy
and suspicion where no previous intercourse has existed, and by feuds
and traditions of hatred where intercourse has existed,--the conduct of
Indian affairs, whether in legislation or in administration, is in no
small degree perplexing and irritating. The Indian treaties prior to
1842 make up one entire volume of the General Statutes, while the
treaties and Indian laws since that date would fill two volumes of equal
size. It cannot be denied that this is taking a good deal of trouble for
a very small and not very useful portion of the population of the
country: and it is not to be wondered at that many citizens, and not a
few Congressmen, are much disposed to cut the knot instead of untying
it, and summarily dismiss the Indian as the subject of peculiar
consideration, by enfranchising him, not for any good it may do to him,
but for the relief of our legislation.
Next, we have that large and increasing class of Americans, who, either
from natural bias, or from the severe political shocks of the last
twelve years, have accepted what we may call the politics of despair, by
which is meant, not so much a belief in any definite ill fortune for the
Republic, as a conviction that the United States are being borne on to
an end not seen, by a current which it is impossible to resist; that it
is futile longer to seek to interpose restraints upon the rate of this
progress, or to change its direction; that the nation has already gone
far outside the traditional limits of safe political navigation, and is
taking its course, for weal or woe, across an unknown sea, not unlike
that little squadron which sailed out from the Straits of Saltez on the
3d of August, 1492. Many of the persons now holding these views were
formerly among the most conservative of our people; but emancipation,
negro suffrage, and the consolidation of power consequent upon the war,
have wholly unsettled their convictions, leaving them either hopeless of
the Republic, or, as temperament serves, eager to crowd on sail, and
prove at once the worst and the best of fortune. In this despair of
conservative methods, some of these men have acquired an oddly objective
way of looking at their country, which to every man ought to be a part
of himself, and have apparently as much of a curious as of a patriotic
interest in watching the development of the new forms and forces of
national life. Men of this class (and they are not few) are not likely
to hesitate in extending to the Indians citizenship and the ballot. A
little more or less, they think, can make no difference. After negro
suffrage, any thing.
Finally, we have a class of persons, who, from no impatience of the
subject, and from no indifference to the welfare of the aborigines, will
oppose the policy of seclusion, as an anomaly not to be tolerated in our
form of government. These are men who cannot bear, that, from any
assumed necessity or for any supposed advantage, exception should be
made of any class of inhabitants, or in respect to any portion of
territory, to the rule of uniform rights and responsibilities, and of
absolute freedom of movement, contract, and intercourse, the whole
nation and the whole land over. Were the Indians ten times as numerous,
were their claims to consideration stronger by no matter how much, and
were the importance to them of seclusion far more clear than it appears,
these political philosophers would steadily oppose the scheme. They
might regret the mischiefs which would result to the Indian from
exposure to corrupting influences; they might be disposed to favor the
most liberal allowances from the public treasury, in compensation to him
for his lands, and for his industrial endowment: but they would none the
less relentlessly insist that the red man should take his equal chance
with white and black, with all the privileges and all the
responsibilities of political manhood.
In view of the likelihood that the expediency of Indian citizenship will
thus become at an early date a practical legislative question, it seems
desirable in the connection to state the constitutional relations of the
subject. The judicial decisions are somewhat confused, although, from
the date (1831) of the decision of Chief-Justice Marshall in the
Cherokee Nation vs. the State of Georgia (5 Peters, 1), to that (1870)
of the decision in the Cherokee Tobacco (11 Wallace, 616), there has
been a marked progress (note especially the decision of Chief-Justice
Taney in the United States vs. Rogers, 4 Howard, 567) towards the
stronger affirmation of the complete and sufficient sovereignty of the
United States. Yet in December, 1870, the Judiciary Committee of the
Senate, Carpenter presenting the Report, after an incomplete, and in
some respects an inaccurate and inconsequential[M] recital of judicial
opinions, made the following startling announcement:--
"Inasmuch as the Constitution treats Indian tribes as belonging to the
rank of nations capable of making treaties, it is evident that an act of
Congress which should assume to treat the members of a tribe as subject
to the municipal jurisdiction of the United States would be
unconstitutional and void."
That this is not good law need not be argued, inasmuch as the decisions
previously cited in the United States _vs._ Rogers and in the Cherokee
Tobacco, assert the complete sovereignty of the United States in strong
terms[N]; in the latter, the doctrine being explicitly affirmed, that
not only does the capability of making a treaty with the United States,
which has been held to reside in an Indian tribe, not exempt that tribe
from the legislative power of Congress, but that not even a treaty made
and ratified, among the stipulations of which is such an exemption, even
were that exemption the consideration for cessions the benefit of which
the United States has enjoyed and continues to enjoy, can hinder
Congress from at any time extending its complete legislative control
over the tribe. Considerations of good faith may influence individual
Congressmen in such a case; but the constitutional competence of
Congress in the premises is declared to be beyond question.
Nor is the extraordinary proposition of the Committee's report better in
reason than in law. The argument is in effect this: The United States
makes treaties with foreign nations; the United States cannot legislate
for foreign nations; the United States may make treaties with Indian
tribes: ergo, the United States cannot legislate for Indian tribes.
This course of reasoning implies that the sole objection to the United
States legislating for foreign nations is, that they makes treaties with
them: whereas there are several other good and sufficient objections
thereto. It also implies that the sole consideration for the United
States treating with Indian tribes, called by Chief-Justice Marshall
"domestic dependent nations," is, that they cannot legislate for them:
whereas the real consideration has been one of practical convenience,
not of legislative competence.
We shall best set forth the constitutional relations of this subject by
presenting the premises, whether of fact or of law, upon which all the
judicial decisions relative thereto have been founded.
1. As matter of fact, the European powers engaged in the discovery and
conquest of the New World left with the Indian tribes the regulation of
their own domestic concerns, while claiming the sovereignty of the soil
occupied by them. The Indian tribes thus continued to act as separate
political communities.[O]
2. The Constitution of the United States excludes from the basis of
Congressional representation "Indians not taxed," without further
defining the same.
3. The Congress of the United States has, with a few recent exceptions,
treated Indians in tribal relations as without the municipal
jurisdiction of the United States.
4. The Senate of the United States has confirmed nearly four hundred
treaties, negotiated by the executive, under the general treaty-making
powers conferred by the Constitution, with tribes which embrace about
three-fifths of the present Indian population of the United States. The
House of Representatives has, from the foundation of the government, as
occasion required, originated bills for the appropriation of moneys to
carry out the provisions of such treaties.
This comprises all that is essential in this connection. The _indicia_
gathered from particular acts of the government, or from the phraseology
of individual treaties, really add nothing to the above.
We believe the following propositions to be consistent with the facts of
history and with the latest judicial decisions.
1. The exclusion by the Constitution of "Indians not taxed" from the
basis of representation was in no sense a guaranty to the Indian tribes
of their political autonomy, but was a provision in the interest of an
equitable apportionment of political power among the States, some States
having many Indians within their limits, others few or none.
2. The self-government enjoyed by the Indian tribes under the
Constitution of the United States, as under the European powers, has
always been a government by sufferance, by toleration, by permission.
The United States, for their own convenience, have allowed this
self-government, because to reduce the savages to the condition of
submitting to civilized laws would have involved a great expense of
blood and treasure; while through the tribal organization a much better
government, for the purposes of the civilized power if not for the
welfare of the Indians themselves, could be obtained, than through an
administration which should disregard that organization. But this
toleration of savage self-government worked no prejudice to the
sovereignty of the United States.
3. The decay of a tribe in numbers and in cohesion, no matter to what
extent carried, does not bring the members of such tribe within the
municipal jurisdiction of the State wherein they are found, so long as
the tribal organization continues to be recognized by the National
Government. See the Kansas Indians, 5 Wallace, 737.
4. Congress is constitutionally competent to extend the laws of the
United States at once over every Indian tribe within the Territories, if
not within the States of the Union, even though treaties may guarantee
to individual tribes complete and perpetual political independence; the
breach of faith involved in the latter case being matter for possible
conscientious scruples on the part of legislators, not for judicial
cognizance. See 11 Wallace, 616; 2 Curtis, 454; 1 Woolworth, 155.
We have thought it important thus to review the doctrine of the Report
of the Senate Judiciary Committee, because, from the high standing of
the Committee, from the assumption which the Report[P] makes of
completeness in the citation of "treaties, laws, and judicial
decisions" pertinent to the subject, on the express ground of a desire
to enlighten, not only Congress, but the country, in respect to our
Indian relations, and from the wide circulation given to the Report, as
compared with that obtained by an ordinary decision of the Circuit or
Supreme Court of the United States, the Report has apparently come to be
accepted by Congress and the country as an authoritative exposition of
the history and law of the subject although, in the very month in which
it was submitted to Congress, the Supreme Court, in the Cherokee
Tobacco, pronounced a doctrine which cuts up that of the Report, root
and branch.
Such being the constitutional competence of Congress to deal with the
Indians, without restraint either from the self-government hitherto
permitted them, or from treaties to which the United States are a party,
it is for Congress to decide, firstly, what the good faith of the nation
requires, and, secondly, what course will best accomplish the social and
industrial elevation of the native tribes, with due consideration had
for the interests of the present body of citizens.
How, then, stands the matter with the faith of the nation? By the Report
on Indian Affairs for 1872, there appear (p. 16) to be in the
neighborhood of 120,000 Indians with whom the United States have no
treaty relations. These certainly can have no claims to exemption from
direct control, whenever the United States shall see fit to extend its
laws over them, either to incorporate them in the body of its
citizenship, or to seclude them for their own good. There are, again, as
nearly as we can determine by a comparison of treaties with the Reports
of the Indian Office, about 125,000 Indians with whom the United States
have treaties unexpired, but to whom no distinct guaranty or promise of
autonomy has been made. Examination of these treaties reveals nothing
which should prevent the United States from establishing a magistracy
and a code of laws for the government of these tribes, according to
principles suited to their present condition, yet tending to raise them
to a higher social and industrial condition. On the other hand, the
perpetual interdiction of all white persons upon the reservations of
these tribes, except "such officers, agents, and employees of the
government as may be authorized to enter upon Indian reservations in
discharge of duties enjoined by law," would seem to preclude the
possibility of these regions ever being opened to settlement, and the
Indians thereon resolved into the body of citizens on equal terms. But,
as matter of fact, not even such treaty provisions need, with
intelligent and firm but kindly management, greatly or long embarrass
the government in the adjustment of the Indian question according to
either principle which may be adopted, seclusion or citizenship. Few of
these tribes but are obliged, even now, to seek from the United States
more aid than they are entitled to by treaty; while it is certain that
in the near future most, if not all, will be thrown in comparative
helplessness upon our bounty. The United States being the sole party to
which they can cede their lands (8 Wheaton, 543), and the sale of the
great body of these lands being their only resource, the government
will have the opportunity, not only without fraud or wrong to this
people, but for their highest good, and indeed for their salvation from
the doom otherwise awaiting them, to cancel the whole of these
ill-considered treaties, leaving the natives where they ought to
be,--subject to direct control by Congress. We repeat, there need never
be any difficulty in securing, at the right time and in the right way,
the relinquishment of lands or privileges from the Indians. They are,
unfortunately, only too ready to sacrifice the future to present
indulgence; while the government on its part can always afford to pay
them far more for their lands than their lands are worth to them. Under
this relation of the parties in interest, and with the pressure of
actual want, due to the inability of the natives properly to cultivate
what they possess, the United States may at an early date, with good
faith and judicious management, easily secure the relinquishment of
every franchise that stands in the way of a satisfactory adjustment of
the difficulty.
There is still a third body of Indians, about 55,000 in number,
occupying chiefly the regions known as the Indian Territory, and
representing the tribes which were the subjects of the colonization
policy of Pres. Monroe, to whom the United States have plighted their
faith that no foreign authority shall ever be extended over them without
their consent. These are not beggarly and vagabond Indians, to whom the
offer of subsistence would be sufficient to obtain the relinquishment of
their franchises, or the cession of their lands. They are
self-supporting, independent, and even wealthy. Their cereal crops
exceed those of all the Territories of the United States combined. In
the number and value of horses and cattle, they are surpassed by the
people of but one Territory; in expenditures for education, by the
people of no Territory.[Q] If these people ever relinquish their
autonomy, it will be because they desire the privileges of American
citizens. This may well be in the immediate future, and surely will be,
sooner or later, unless they are made to fear the violence and greed of
their white neighbors. Meanwhile, they should be honorably protected in
the enjoyment of their treaty rights. They have already advanced so far
in civilization as to secure their own future, as against any thing but
squatter and railroad rapacity; and their fate does not properly form a
part of the Indian problem of the present day.
Excepting thus the present inhabitants of the so-called Indian
Territory, who ought to be excepted from any scheme that embraces the
half-civilized and the wholly savage tribes, we have practically a clear
field for any policy which Congress shall determine to be best suited to
the serious exigency of the situation; for, however easy to dismiss the
subject for a time with ridicule, the task of so disposing a nomad
population of 200,000 to 240,000, as to reduce to a minimum the
obstruction it shall offer to the progress of settlement and of
industry, without leaving the germs of lasting evil to a score of future
States, and at the same time to secure the highest welfare of that
population,--this task is a most serious one, to which the best
statesmanship of the nation may well address itself.
In characterizing the classes of persons who will naturally be found
among the advocates of the policy of an immediate bestowal of
citizenship upon the Indian tribes, whether they be willing or
unwilling, whether for good or evil, we have in effect stated all the
arguments in favor of that policy; for it is not probable, that, aside
from those who would properly be placed under one or another of the
classes indicated, there are a score of persons reasonably well informed
in Indian affairs, who would so much as affect to believe that such a
course would have other than disastrous consequences to the natives.
The considerations which favor the policy of seclusion with more or less
of industrial constraint are so direct and familiar, and are sustained
by so general a concurrence of testimony and authority, that they will
not require us greatly to protract this paper in their exposition and
enforcement. These considerations are four in number; three of them
having especial reference to the interests of the Indians, the fourth
bearing on the welfare of the States to be formed out of the territory
now roamed over by the native tribes.
First: so long as an Indian tribe is left to its own proper forces and
dispositions, free from all foreign attraction, it is not only easily
governed, but the whole body obeys the recognized law of the community
with almost absolute unanimity. No expressions would be too strong to
characterize the social homogeneity of an Indian tribe, and the complete
domination of the accepted ideas of right and wrong, of honor and
baseness. Public opinion is there conclusive upon every individual; and
the spectacle, seen in every town and village with us, of large numbers
openly practising that which public opinion reprobates, or refusing to
do that which public opinion prescribes, is wholly unknown. We do not
say that this is the most desirable as the ultimate form of society; but
this tyranny of sentiment may and should be made a most powerful
auxiliary for good in the early stages of industrial and social progress
for this people.
Second: it is unfortunately true, that, when the Indian is, by the
powerful attraction of a race which his savage breast never fails to
recognize as superior, released from the control of the public
sentiment which he has been accustomed to obey, he submits himself by
an almost irresistible tendency to the worst and not to the best
influences of civilized society. While there are undeniably exceptions
to this statement, it is supported by such a mass of melancholy evidence
in the history of scores of tribes once renowned for all the native
virtues, that no one has the right to advocate the introduction to such
influences of uninstructed and unprovided tribes, unless he is prepared
to contemplate the ruin of nine-tenths of the subjects of his policy.
Nor is it the worst elements of the Indian which thus submit themselves
to the worst elements of the white community. The very men who bear
themselves most loftily, according to the native standards of virtue,
are quite as likely to fall, under exposure to white contact, as are the
weakest of the tribe. Their familiar attractions all broken, their
immemorial traditions rudely dispelled, their natural leadership
destroyed, the members of a wild tribe, strong and weak together, become
the easy prey of the rascally influences of civilized society.
Third: the experiment of citizenship, except with the more advanced
tribes, is at the serious risk, amounting almost to a certainty, of the
immediate loss to the Indians of the whole of their scanty patrimony,
through the improvident and wasteful alienation of the lands patented to
them, the Indians being left thus without resource for the future,
except in the bounty of the general government or in local charity. On
this point a few facts will be more eloquent than many words.
The United States have by recent treaties or legislative enactments
admitted to citizenship the following Indians,--In Kansas, Kickapoos,
12; Delawares, 20; Wyandots, 473; Pottawatomies, 1,604: in Dakota,
Sioux, 250: in Minnesota, Winnebagoes, 159: in Wisconsin, Stockbridges,
to a number not yet officially ascertained: in Michigan, Ottawas and
Chippewas, 6,039: in the Indian Territory, Ottawas of Blanchard's Fork,
150. Time has not yet been given for the full development of the
consequences of thus devolving responsibility upon these Indians; but we
already have information, official or semi-official, to the effect that
the majority of the Pottawatomie citizens, after selling their lands in
Kansas, have gone to the Indian Territory, and re-associated themselves
as a tribe; that of the Wyandots, considerable numbers have attached
themselves to the re-organized tribe in the Indian Territory; that of
the citizen Ottawas of Blanchard's Fork, nearly all have disposed of
their allotted lands, and are still cared for to some extent by the
government as Indians; that of the Ottawas and Chippewas of Michigan, a
majority certainly, and probably a large majority, have sold the lands
patented to them in severalty,--in many cases the negotiation preceding
the issue of patents, two parties of white sharpers contesting for the
favor of the agent, in the way of early information as to the precise
lands assigned, and the disappointed faction, in at least one instance,
resorting to burglary and larceny for the needed documents.
It will be thus seen, that, of these Indians upon whom the experiment of
citizenship has been tried, more than half, probably at least
two-thirds, are now homeless, and must be re-endowed by the government,
or they will sink to a condition of hopeless poverty and misery.
Fourth: the dissolution of the tribal bonds, and the dispersing of two
hundred thousand Indians among the settlements, will devolve upon the
present and future States beyond the Missouri an almost intolerable
burden of vagabondage, pauperism, and crime. It is not even essential to
the result of a dispersion of these tribes that the law should pronounce
their dissolution as political communities. Unless the system of
reservations shall soon be recast, and the laws of non-intercourse
thoroughly enforced, the next fifteen or twenty years will see the great
majority of the Indians on the plains mixed up with white settlements,
wandering in small camps from place to place, shifting sores upon the
public body, the men resorting for a living to basket-making, beggary,
and hog-stealing, the women to fortune-telling, beggary, and harlotry;
while a remnant will seek to maintain a little longer, in the mountains,
their savage independence, fleeing before the advance of settlement when
they can, fighting in sullen despair when they must. It is doubtless
true that some tribes could still remain together as social, even after
being dissolved as legal, communities; but the fate we have indicated
would certainly befall by far the greater part of the Indians of the
plains, were the reservation system broken up in their present social
and industrial condition. To believe that a pioneer population of two,
three, or four millions, such as is likely to occupy this region within
the next twenty years, can, in addition to its own proper elements of
disorder, safely absorb such a mass of corruption, requires no small
faith in the robust virtue of our people, and in the saving efficacy of
republican institutions.
This last consideration we have urged, not on behalf of the Indians, but
in the interest of the present white communities beyond the Missouri, to
whom such a dispersion of the tribes would be a far greater burden than
the maintenance of the reservation system in its integrity could
possibly be, and in the interest of a score of States of the Union yet
to be formed out of that territory. Surely it is not in such cement that
we wish to have the foundations of our future society laid.
We conclude, then, that Indian citizenship is to be regarded as an end,
and not as a means; that it is the goal to which each tribe should in
turn be conducted, through a course of industrial instruction and
constraint, maintained by the government with kindness but also with
firmness, under the shield of the reservation system. It is true that
this system can no longer be kept up without sacrifice on our part. In
the days of Pres. Monroe, the sequestration of the Indians involved
only the expense of transporting eighty or ninety thousand persons to a
region not settled, nor then desired for settlement. To-day there is no
portion of our territory where citizens of the United States are not
preparing to make their homes. To cut off a reservation sufficient for
the wants of this unfortunate people in their rude ways of life; to
hedge it in with strict laws of non-intercourse, turning aside, for the
purpose, railway and highway alike; and, upon the soil thus secluded, to
work patiently out the problem of Indian civilization,--is not to be
deemed a light sacrifice to national honor and duty. Yet that the
government and people of the United States cannot discharge their
obligations to the aborigines without pains and care and expense,
affords no reason for declining the task.
The claim of the Indian upon us is of no common character. The advance
of railways and settlements is fast pushing him from his home, and, in
the steady extinction of game, is cutting him off from the only means of
subsistence of which he knows how to avail himself. He will soon be left
homeless and helpless in the midst of civilization, upon the soil that
once was his alone. The freedom of territorial and industrial expansion
which is bringing imperial greatness to the nation, to the Indian
brings wretchedness, destitution, beggary. Surely there is obligation
found, in such considerations as these, to make good in some way to him
the loss by which we so largely gain. Nor is this obligation one that
can be discharged by lavish endowments, which it is of moral certainty
he will squander, or by merely placing him in situations where he might
prosper, had he the industrial aptitudes of the white man, acquired
through centuries of laborious training. Savage as he is by no fault of
his own, and stripped at once of savage independence and savage
competence by our act, for our advantage, we have made ourselves
responsible before God and the world for his rescue from destruction,
and his elevation to social and industrial manhood, at whatever expense
and at whatever inconvenience. The corner-stone of our Indian policy
should be the recognition by government and by the people, that we owe
the Indian, not endowments and lands only, but also forbearance,
patience, care, and instruction.
It is not unusual to sneer at the sentimentality of "the Quakers" and
other active friends of this race. But we may as well remember that
posterity will grow much more sentimental over the fate of the Indian
than any Quaker or philanthropist of to-day. The United States will be
judged at the bar of history according to what they shall have done in
two respects,--by their disposition of negro slavery, and by their
treatment of the Indians. In the one matter, the result is fortunately
secure; nor will it be remembered against us, in diminution of our
honor, that we procrastinated and sought to evade the issue, and for a
time made terms and compromised with wrong. In that, when at last we
were brought face to face with the question, we did the one thing that
was right, and in tears and blood expiated our own and our fathers'
errors, the ages to come will give us no grudging and stinted praise.
Would that we were equally sure that no stain will rest upon our fame
for what shall yet be done or left undone towards the original
possessors of our soil! What is past cannot be recalled; nor has any
thing yet gone into history that need deeply dishonor us as a nation.
Posterity will judge very leniently of all that has been done in heat of
blood, in the struggle for life and for the possession of the soil by
the early Colonists; it will not greatly attribute blame that, in our
industrial and territorial expansion, and a conquest of savage nature
more rapid than is recorded of any other people, savage man has suffered
somewhat at our hands; it will not attempt nicely to apportion the
mutual injuries of the frontier, to decide which was first and which was
worst in wrong, red man or white; it will have ample consideration for
the difficulties which the government has encountered in preserving the
peace between the natives and the bold, rude pioneers of civilization.
But if, when the Indians shall have been thrown helpless upon our mercy,
surrounded and disarmed by the extension of settlement, and impoverished
by the very causes which promote our wealth and greatness, we fail to
make ample provision out of our abundance, and to apply it in all
patience and with all pains, to save alive these remnants of a once
powerful people, and reconcile them to civilization, there is much
reason to fear, that, however successfully we may excuse ourselves to
ourselves by pleading the manifest destiny of the Anglo-Saxon race,
impartial history will pronounce us recreant to a sacred duty.