Part 6

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." 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 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; 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.

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.