[K] From The International Review, May, 1874.
[L] The doctrine of a _vanishing_ Indian nationality was strongly
insisted on by Mr. Justice McLean in his opinion in Worcester vs. the
State of Georgia:--
"If a tribe of Indians shall become so degraded or reduced in numbers as
to lose the power of self-government, the protection of the local law,
of necessity, must be extended over them. The point at which this
exercise of power by a State would be proper need not now be considered,
if, indeed, it be a judicial question.... But, if a contingency shall
occur which shall render the Indians who reside in a State incapable of
self-government, either by moral degradation or a reduction of their
numbers, it would undoubtedly be in the power of a State government to
extend over them the aegis of its laws."--6 _Peters_, pp. 593-4.
If, as would appear, Mr. Justice McLean by this intends that a State may
exercise such discretion so long as the United States continue to
recognize the tribal organization, however feeble or corrupt it may in
fact be, the doctrine is flatly contradicted by that of the Supreme
Court in the Kansas Indians.--5 _Wallace_, 737.
[M] We are aware that this is a heavy charge; but it is justified by the
facts. The recital is incomplete. The decision in the United States
_vs._ Rogers is not referred to. This case is, as it was treated by the
Supreme Court in the Cherokee Tobacco, of the highest importance.
The recital is inaccurate. An opinion is given at length as that of Kent
in Jackson vs. Goodell, 20 Johnson, 193. This is a case in the Supreme
Court of New York, Chief-Justice Spencer delivering the opinion, Kent
having been previously appointed chancellor. The expressions quoted by
the Committee are to be found in Goodell vs. Jackson, in error to the
Court of Appeals, 20 Johnson, 693. The recital is inconsequential, as
will appear by what is said further in the text.
[N] "We think it too firmly and clearly established to admit of dispute,
that the Indian tribes residing within the territorial limits of the
United States are subject to their authority; and where the country
occupied by them is not within the limit of one of the States, Congress
may by law punish any offence committed there, whether the offender be a
white man or an Indian."--_Taney, Chief-Justice._
In the Cherokee Tobacco, the court, quoting from Chief-Justice Taney the
sentence just preceding, and a similar utterance of Chief-Justice
Marshall, remarks, "Both these propositions are so well settled in our
jurisprudence, that it would be a waste of time to discuss them, or to
refer to further authorities in their support."
[O] Throughout the whole course of this discussion on the constitutional
relations of the Indians, we should indicate as subject to possible
exception the tribes found upon soil ceded by Mexico. It is claimed,
that, as Mexico never treated the Indians within its jurisdiction other
than as a peculiar class of citizens, all the members of those tribes
became citizens of the United States by virtue of the provisions of the
Treaty of Guadalupe Hidalgo, 1848.
[P] "Although the Committee have not regarded the questions proposed for
their consideration by this resolution as at all difficult to answer,
yet respect for the Senate, which ordered the investigation, and the
existence of some loose popular notions of modern date in regard to the
power of the President and Senate to exercise the treaty-making power in
dealing with the Indian tribes, have induced your Committee to examine
the questions thus at length, and present extracts from treaties, laws,
and judicial decisions; and your Committee indulge the hope that a
reference to these sources of information may tend to fix more clearly
in the minds of Congress and the people the true theory of our relations
to these unfortunate tribes."--_Report_, p. 11. It would, perhaps, have
been fortunate had the Committee found the questions difficult.
[Q] See Annual Report, Board of Indian Commissioners, 1872, p. 12.
Constant efforts are made to break the force of such comparisons as
these, by asserting that the progress of the Indian Territory in
industry and the arts of life is due to white men incorporated with the
Creeks, Cherokees, and Choctaws. If this be true, it would seem that
white men, when brought under Indian laws, and adopted into Indian
families, exhibit qualities superior to those which they develop when
controlling themselves, and organizing their own forms of industry and
of government. This suggests the inquiry, whether it might not be well
to turn over two or three Territories that might be named, to the
Indians, with liberty to pick out white men for adoption and for
instruction, in the hope that these communities might in time be brought
up to the condition of that of which the Indians have had sole control
for forty years.