the Indians not members of any of the States; provided, that the legislative right of any State' within its own limits be not infringed or violated."

The Confederation proceeded, of course, like its predecessor the Continental Congress, to make treaties with the Indians as separate people; for example, the treaty with the Cherokees in 1785, at Hopewell, in which it was provided that if an outsider settled on Indian land he should forfeit the protection of the United States, and be subject to punishment by the Indians. In 1786 a formal ordinance was adopted for the regulation of Indian affairs in the territory on the west, lately the west, lately ceded by the States of the Atlantic margin. This region, divided into two departments, was assigned to superintendents acting under the Secretary of War, who were to attend to the regulation of trade with the Indians and the distribution of presents among them, and to report upon any signs of disaffection. Only licensed citizens of the United States could trade with the Indians; but any such citizen who brought a recommendation from the governor of his State, paid fifty dollars, and gave a bond had a right to be licensed.

Now came the organization of the new government, our present United States, in 1787-89. This, while preserving the old names of the "United States " and the "Union," was in reality, as we all know, a very different thing indeed. For certain great purposes it was a nation, gathering into one, for the accomplishment of these purposes, the combined power of all the colonies, and standing, as regards these ends, as a single state covering the entire country; to which, as being in these particulars the supreme state, every citizen had a direct relation and owed sole allegiance. This was not so before. Accordingly, now we not only find the general government endowed, as before, with the power of representing all the country in its rela

tion to the Indian tribes, but we also find a dropping out of the old ambiguous and troublesome clauses about saving the legislative right of the sepa rate colonies. The Constitution of the new government provided that Congress should have power "to regulate commerce with foreign nations, and among the several States and with the Indian tribes." Here, again, as in the two great documents before named, the Declaration of Independence thirteen years before, and the Articles of Confederation eight years before, we remark the importance of the "Indian question " of the period by the express and conspicuous mention of it, and by the cir cumstance that the handling of it is deemed matter of general concern. It was a dealing with separate nations; if not with a foreign people, yet a sepa

rate one.

(3.) In starting now to take a brief survey of the legal position of the Indians under the new Constitution, and of the scope of the power which the nation has over them, let us stop a moment on the threshold and allow ourselves to conjecture what questions might present themselves and what answers would be given. Will the Indian tribes, our ancestors might have asked, remain permanently as separate political bodies? Or will they become broken up and absorbed into our own population? As regards the other anomalous element in our body politic, slaves, the word "slave" had been left out of the Constitution; it was expected that slavery would disappear, and there was an objection in some minds to having any permanent trace of it in the document. As to Indians it was not so; the insertion among the provisions for the basis of representation of the phrase "Indians not taxed" indicated perhaps not merely the recognition of the fact that there were then some Indians who had become embodied among our people, but also an expectation that such a process would go on. Assuming that

it would, how long would it last? And meantime supposing there were war with the Indians and a conquest, what would happen? Was it thought that the Indians might be driven wholly out of our borders, north, or south, or into the unfathomed west beyond the Mississippi? If they were subdued, how would they be governed? Would the United States have free and full power of governing them as it thought wise, as a subject people; or would it be restrained by the Constitution and its amendments, which secured trial by jury and other rights? Apart from war and conquest, would the Indians become enfeebled and lose their power of self-government? Would they ask, or, if they did not ask, would they need to be governed by us? Would they continue to occupy the great tracts which were then recognized as "Indian country," or would new States grow up, and the white people spread over into the Indian land?

Some of these questions undoubted ly presented themselves. Certainly the makers of the Constitution counted upon the growth of new States at the west. Was not the Ordinance of 1787, adopted while the Constitution was making, an express provision for that? Unquestionably they expected, except for the exigencies of war, that the Indians would long continue a separate people, and that so long as they did the right to occupy their lands would remain to them until it was parted with by their own consent. That the Indians were expected to be gradually more or less absorbed into our population we may believe, for that process had long gone on in the colonies. That our ancestors supposed that in one way or another the Indians would ultimately disappear as a separate element we may also believe, for they recognized them as capable of civilization, and laid plans for their education, training, and Christianizing. In July, 1775, Congress had voted money toward the education of certain Indians at "Dr.

Wheelock's school," now Dartmouth College, and in the next year they had made provision for the residence of "ministers and schoolmasters" among the Indians, in order to promote "the propagation of the gospel and the cultivation of the civil arts among them. And

although the experience of the colonies was not calculated to encourage any confident expectation of working out a high form of civilization among the native tribes as a separate population, yet it might well lead to an expectation of a gradual fading out of the peculiarities of tribal life and tribal government, and a gradual subjection of them to the whites; for, as I said, it had been so in the colonies. We may believe, then, that the chance was not wholly overlooked that the general government might, for one reason or another, and for a longer or a shorter time, have to govern the Indians as subjects. If it conquered them in war, it could hardly be doubted that the power to govern them would be the same as if a foreign people were conquered; and if, in the gradual course of events, they should come to be surrounded by our people, and the tribal bond should be enfeebled and tribal government ineffective and the people a source of danger to us, it may well have been expected that our government would take full control of them and govern them.

Our ancestors had themselves been witnesses to things that would suggest these possibilities. They, as well as we, had had experience of the shoving back of Indians as the whites crowded in, of the gradual surrounding of Indian settlements by whites and their submission to white legislation. They had witnessed in the separate colonies, for example in Virginia and Massachusetts, the same process which we in our day are witnessing on the continental scale. What happened in those colonies is happening now between the Mississippi and the Pacific. How had this matter been dealt with at

the periods of which the framers of the Constitution had knowledge? In Massachusetts, as early as 1693-94, the legislature introduced law among the Indians. "To the intent that the Indians may be forwarded in civility and Christianity," they provided for the appointment of "one or more discreet persons within several parts of this Province to have the inspection and more particular care and government of the Indians in their respective plantations, . . . to have . . . the power of a justice of the peace over them in civil and criminal cases according to the . . . laws of the Province," etc. And in January, 1789, just before the United States Constitution went into operation, a statute of Massachusetts established a board of five overseers of the Marshpee Indians, "with full power... to regulate the police of the said plantation, to establish rules . . for the well ordering and managing the affairs. . . of the said Indians, and the said overseers. . . may appoint... a guardian or guardians to the said Indian and other proprietors to carry into execution their said regulations and orders." These overseers or guardians were authorized to pass upon all contracts, leases, and the like made with the Indians, and to bring actions in their behalf and adjust controversies between them and the whites. They were also to render legal accounts regularly to the governor and council. Under these and like statutes the Indians of Massachusetts were governed entirely, governed not as citizens, but as a subject population; being, in the language of the Supreme Court of Massachusetts, speaking through Mr. Justice Gray in 1871, "not subjected to taxation, nor endowed with the ordinary civil and political rights of citizens, but. . . treated as the wards of the commonwealth." In Virginia, also, before and after the making of the Consti

1 Reenacting the temporary statutes of 1790, 1793, 1796, and 1799, passed for two and three

tution of the United States, where Indian tribes had become reduced to very small numbers, trustees were appointed to sell their land and apply the proceeds for their benefit, while the survivors appear to have sunk into the mass of the free population of the colony.

There is a hint in these things, for, as the reader will observe, I have been speaking of the purposes and expectations of those who framed the Constitution of the United States; of what they meant when they spoke of "Indians not taxed," and of regulating commerce "with the Indian tribes;" and of what they meant by their silence when they said nothing more. In view of the historical facts now mentioned, of the nature of the government which was then created and the powers conferred upon it, we must conclude, I think, that while the United States might, if it saw fit, keep on in the old method of dealing with the Indians as a separate people, it also might, in various contingencies easily possible to foresee, change the plan, and govern the Indians as a subject population in methods suited to their stage of development.

(4.) Let us now turn from the attitude of conjecture and forecast, and trace what has happened in point of fact. In the first place, very many treaties were made, mainly for the purpose of getting and exchanging land. The number, down to 1871, when the making of Indian treaties was abandoned, was a little under four hundred. One tenth of these were made before this century. Passing by these, the details of which are very numerous, I confine myself to the general laws. eral laws. Our present United States took its first permanent step in general legislation about the Indians in the statute of March 30, 1802:1“An Act to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers." Its provisions are largely years, which covered more or less of the same ground.

continued in all later laws. I will give a brief abstract of it, and the reader will notice how closely this statute follows the theory of regarding the Indians as a separate and self-governing people. After providing for marking certain extensive boundary lines previously fixed by treaty between "the United States and various Indian tribes," it forbids our citizens and others from going into this Indian country without a passport, and committing any act against the person or property of Indians in their own country which would be a crime if committed against a citizen of the United States within any State. The offender, if property were taken, was to restore to the Indians twofold. If he could not pay at least the full value, it should be paid out of the treasury of the United States, but only on condition that the Indians abstained from violence in righting themselves. Settlement on Indian lands, and trading without a license from the superintendent appointed by the United States for the particular Indian department, were forbidden; but anybody (limited, by a later statute, to citizens of the United States) giving bond with sureties was to be licensed. The sale of the Indian title to land, except under a treaty or agreement with the United States, was forbidden. In order to promote civilization among friendly tribes, and to secure their continued friendship, the President was authorized to supply them, to a specified amount, with useful domestic animals and implements of husbandry, and goods or money, and to appoint "persons from time to time as temporary agents to reside among the Indians." If Indians should cross the line into any State or Territory of the United States and commit crime or outrage, the injured party or his representatives were to apply to the Indian superintendent or other designated officer and furnish proofs, and this officer was to make demand upon the Indian's nation or tribe for satisfac

tion. If this satisfaction were neglected or refused for a year, the President was to be informed, and was to take further steps to secure it. The individual injured was ultimately to be paid by the United States, unless otherwise indemnified; but if he should take the remedy into his own hands by violence, he forfeited this right. Outside territorial courts and United States courts were to have jurisdiction of offenses, under this act. The military might turn out anybody who was unlawfully in the Indian country.

So far no attempt was made to govern the Indians, or to administer justice on their land. Of course the theory was that of a people who did all this for themselves. But in a statute of March, 1817, we see something new. The doing in the Indian country of any act which would be punishable if committed in any place under the exclusive jurisdiction of the United States is made punishable as it would be if committed there, and jurisdiction is given to the superior court of the Territory, or the United States court of the district, into which the offender should first be brought. But offenses of Indians upon Indians are excepted. Here is a beginning of governing the Indian country, for this covers offenses between whites and between Indians and whites. And then comes another recognition of the Indian weakness. By a statute of 1819, "for the purpose of providing against the further decline and final extinction of the Indian tribes adjoining to the frontier settlements of the United States, and for introducing among them the habits and arts of civilization," the President, with the Indians' consent, may employ among them persons to teach them in the mode of agriculture suited to their situation, and their children in reading, writing, and arithmetic. Soon afterwards we find in the statutes a reflection of that terrible pressure of the whites upon the Indians of certain South

ern States which led to driving them across the Mississippi. By a statute of 1830 the sum of $500,000 was appropriated to carry out the plan for removing all Indians, with their consent, from the existing States or organized Territories to the unorganized region west of the Mississippi, with authority solemnly to assure the Indians making the exchange that the United States will forever secure and guarantee to them the country thus given, and, if preferred, will give them a patent for it, the land to revert to the United States if the tribes become extinct or abandon the land.

On June 30, 1834, a revision was passed of the important statute of 1802, already summarized, superseding the chief of the laws above named. It first gave a definition of what was meant by "Indian country," in clumsy phrases which were interpreted by the Supreme Court of the United States in 18771 to mean all the land west of the Mississippi outside of the States of Louisiana and Missouri and the Territory of Arkansas, and the lands east of the Mississippi which now constitute the States of Michigan and Wisconsin. The definition was dropped in the Revised Statutes of 1874, and no other was substituted. The definition of "Indian country" now accepted by the Supreme Court of the United States 2 is "all the country to which the Indian title has not been extinguished, anywhere within the limits of the United States." This includes the country acquired by the United States since 1834, and does not except what is within the boundary of the States unless, as in Colorado, it may have been otherwise provided when they were admitted into the Union. The statute of 1834, after defining the Indian country, reenacted; with modifications, the previous provisions regulating trade and intercourse. There is the same clear theory of recognizing the Indians as a separate people,

1 Bates v. Clark, 95 U. S., 204.

but we find one or two more of those striking changes which mark the inroads upon this theory. Instead of trusting wholly to the Indians to extradite an offending member, we find now that the superintendents, agents, and subagents are to endeavor, by such means as the President may authorize, to arrest and bring to trial (before the outside courts) any Indians committing crimes on the reservation. That is a large discretion. The reader will remember that some crimes on the reservations were forbidden by the statute of 1817. The President may also employ the military in seizing such Indians. The superintendents, agents, and sub-agents are empowered to search for and destroy spirituous liquors, by whomsoever introduced, and to destroy any distillery, though set up by an Indian. provision of 1817 for extending to the Indian country the criminal code of the United States for places under the exclusive jurisdiction of the United States is continued, but excludes, as before, the act of one Indian against another.

The

In 1849 the progress of ideas about the Indians was further marked by transferring the management of Indian affairs from the War Department, where hitherto it had lain, to the newly created Department of the Interior. The care of the Indians was ceasing to be thought of as a matter incidental to foreign affairs or to war. Vast tracts of country and great numbers of Indians had been added to our country by the ending of the Mexican war, and many of these Indians were made citizens by the treaty. People had been flocking to California and the Western plains, and complicating Indian administration still further. After the war of secession, in 1866, provision was made for the enlistment of Indians in our armies as scouts, excellent step lately followed up by the present administration. Other changes were caused by the Pacific Railroad; for 2 Ex parte Crow Dog, 109 U. S., 561.

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