II.

THREE important statutes about the Indians remain to be mentioned, one of which was incorporated in the Revised Statutes.

(a.) A statute of March 3, 1871, reads: "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," - saving, however, the obligation of previous treaties. This was enacted twenty years ago. Did it abolish the existence of these separate political powers, nations, or tribes? No, we all know that they have continued and been recognized just as before. Did it abolish the carrying on of war with the Indians? No, we remember the horrible events of last winter, and a recent judicial decision in South Dakota, that the Indian known as "Plenty Horses was not guilty of homicide in killing a white man during those troubles, because it was an act of war. Do we then carry on war with Indians and not make treaties with them? Yes. A strange and absurd situation, is it not? Yet we do make" agreements" with them as with a separate people; and the chief result of this law is, and was intended to be, that it is no longer the President and Senate (the treaty-making power) that conclude these measures, but the legis lative body, Congress. This statute was the result of a struggle on the part of the House of Representatives to share in these proceedings, and was forced upon the Senate on the last day of a session by putting it into an appropriation bill. It was thought at the time by so competent an observer as General Walker, formerly Commissioner of Indian Affairs, to be "a deadly blow at

the tribal autonomy;" and so it was, in the logic of it. But the step was not then followed up, for it did not represent any clear determination of Congress to end the old methods; and this strange notion of refusing to make treaties with a people with whom we continue to go to war has remained on our statute book as another of the many anomalies that mark our Indian policy. Is it not plain, however, that if we abandon the policy of treaties with Indians we should give up the practice of war with them? Our arrangements with them are now called agreements; but this gives them no added sanction; they are still to be dealt with on the analogy of treaties.

(b.) The second statute to which I refer is that of March 3, 1885. It followed up timidly the logic of the law of 1871, though for only a step or two; but it marked the greatest advance yet reached in the process of assuming the direct government of the Indians. The law provides that thereafter Indians should be punished for committing upon Indians or others any one of seven leading crimes (murder, manslaughter, assault with intent to kill, rape, arson, burglary, or larceny): if in a Territory (whether on or off a reservation), under the territorial laws and in the territorial courts; and if in a State and on a reservation, then under the same laws and in the same courts as if the act were done in a place within the exclusive jurisdiction of the United States. This is a very important statute. In principle it claims for the United States full jurisdiction over the Indians upon their reservations, whether in a State or Territory. Heretofore, the laws, for example the statute of 1817 and the renewals of it, had excepted the acts of Indians committed upon their fellows within the Indian country. The acts of Indians against white persons or

of whites against Indians had been dealt with, but the internal economy of Indian government was not invaded in its dealing or refusing to deal with the relations of members of the tribe to one another. The constitutionality, even, of such legislation as this of 1885 had been denied. Judges had been careful to avoid asserting this full power in cases where the reservation was in a State. Thus the Supreme Court of the United States, in 1845, in holding good the law of 1817, which punished (in this particular case) the act of a white man against a white man in the Indian country, among the Cherokees, said: "Where the country occupied by them is not within the limits of one of the States; Congress may by law punish any offense committed there, no matter whether the offender be a white man or an Indian." In 1834 Mr. Justice McLean had denied the power of Congress to legislate in this way for an Indian reservation in a State, while admitting it in a Territory; and in December, 1870, the judiciary committee of the Senate of the United States even went so far as to say, “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." But the air was at last cleared in 1886, when the Supreme Court of the United States had to deal with the indictment, under this statute, of one Indian for the murder of another Indian on a reservation in the State of California. It was laid down in this case, one of the landmarks of our Indian law, that the government of the United States has full power, under the Constitution, to govern the Indians as its own subjects, if it sees fit to do so, and to such partial or full extent as it sees fit; that nothing in the tribal relation or in any previous recognition of it by the United States cuts down this legislative power; that this is so not merely in the 1 Walker, The Indian Question, 125.

Territories, but on reservations within the States. The case, as I said, arose on a reservation in the State of California. "This proposition itself," said the court, with no dissent, speaking through Mr. Justice Miller (that is, the proposition to punish under the laws of a Territory and by its courts a tribal Indian who commits a crime upon another tribal Indian on a reservation in a Territory), "is new in legislation of Congress. . . . The second, which applies solely to offenses ... committed within the limits of a State and... of a reservation, . . . is a still further advance as asserting this jurisdiction over the Indians within the limits of the States of the Union. . . . After an experience of a hundred years of the treaty-making system of government, Congress has determined upon a new departure, to govern them by acts of Congress. It seems to us that this is within the competency of Congress."

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ences to be drawn from the nature of the situation, namely, that the Indians are a decayed power, residing upon our soil and under the protection of the general government, a people who must be governed by somebody, and whom, so long as their separate political existence is recognized by the United States, nobody but the United States has any right to govern.

"The Constitution," says

the court, "is almost silent in regard to the relations of the government . . . to the numerous tribes of Indians within its borders. . . . While we are not able 2 United States v. Kagama, 118 U. S., 375.

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to see in either of these clauses of the Constitution" (namely, the one relating to the basis of representation, "excluding Indians not taxed," or the clause giving Congress power to regulate commerce with the Indian tribes) "any delegation of power to enact a code of criminal law, . . . [yet] these Indians are within the geographical limits of the United States. The soil and the people within those limits are under the political control [either] of the government of the United States or of the States of the Union. There exist. . . but these two. The territorial governments owe all their power to the statutes of the United States.... [But] Congress has defined a crime committed within the State and made it punishable in the courts of the United States. . . . Congress has done it. It can do it with regard to all offenses to which the federal authority extends. . . . This is within the competency of Congress. These Indian tribes are the wards of the nation. They are... dependent1 on the United States, dependent largely for their daily food, dependent for their political rights. They owe no allegiance to the States and receive from them no protection. Because of the local ill feeling, the people of the States where they are found are often their deadliest enemies. From their very weakness and helplessness, so largely due to the course of dealing of the federal government with them and the treaties in which it has been promised them, arises the duty of protection, and with it the power.... The power of the general government . . . is necessary to their protection as well as to the safety of those among whom they dwell. It must exist in that government because it never has existed anywhere else, because the theatre of its exercise is within the geographical limits of the United States, because it never has been denied,

and because it alone can enforce its laws on all the tribes."

Here, it will be noticed, is a comprehensive and statesmanlike declaration. It covers the entire ground; the government, if it pleases, can go on to extend its law fully over the Indians while they are still a separate people. Observe, now, one thing. The existence of this right and power, and the clear and authoritative declaration of it by the Supreme Court of the United States for the first time in 1886, have brought home to the Congress of the United States and to us all, now within these recent years, a great weight of responsibility. It may have been thought possible before to deny the legal power fully to govern the Indians. It cannot be denied now. Under such circumstances, the mere neglect or refusal to act is itself action, and action of the worst kind.

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(c.) The third and last of these statutes and the last upon which I shall comment - is the General Land in Severalty Law (often known as the Dawes Bill). This was passed in February, 1887, within nine months of the great decision upon which I have just been remarking: the dates are May 10, 1886, and February 8, 1887. But it was pending in Congress at the time of that decision, and had long been pending there under bitter opposition. This great enactment opens the way, within a generation or two, to settle the whole Indian question. Whether it is to be regarded as a good law or a bad one, however, depends on the moderation with which it is administered. The peculiarity of it is not that its methods are new, for similar arrangements had repeatedly been made, for a score of years before, in the case of particular tribes, as the Winnebagoes in 1863, the Stockbridge Munsee Indians in 1871, the Utes in 1880, and the Omahas in 1882. But now, by a general law applicable to all reservations, the President is given power to make almost every Reservation

Indian outside the civilized tribes a landowner in severalty and a citizen of the United States against his will. The The right of citizenship is made to follow the ownership of land.

The scheme of the act is this: Whenever the President thinks that any Indian reservation, or any part of one, is advantageous for agricultural or grazing purposes, he may cause the whole or any part of the reservation to be surveyed and allotted in severalty, in specified amounts, among all the heads of families, single persons, and orphan children of the tribe or band. The Indian heads of families may select for their children, and the Indian agents for the orphans. If in four years from the ordering of an allotment no selection is made in any given case, it may be made by an agent on the order of the Secretary of the Interior. Patents (that is, deeds) are to be issued by the Secretary of the Interior on his approval of the allotments, setting forth that the United States will hold the land in trust for the allottee for twenty-five years, and then convey in fee to him or his heirs, free of all incumbrances. Meantime the allottee cannot convey or incumber the land, and, as it seems, it is not taxable. When these allotments and patents are all made (and perhaps sooner) the Indians are said by the terms of the statute to pass at once from the jurisdiction of the United States to that of the Territory or State in which the reservation is situated, and to become at once citizens of the United States. The construction of the law is doubtful, but it is the view, I believe, of the Indian Bureau at Washington that these results happen not merely when all is done, but man by man, as each has his allotment and his patent. I venture to question the soundness of that view. This statute also provides for allotments, with like results, to tribal Indians not on reservations who may settle upon the public lands. It makes citizens at once of all Indians who leave their tribe and

voluntarily live apart from it, adopting the habits of civilized life. This last class of persons had been declared by the Supreme Court of the United States, in November, 1884, not to be citizens of the United States, in the absence of such legislation. It is important, also, to notice that Indians are stimulated to take their allotments by a clause that this shall be a ground of preference in appointments on the Indian police and other public offices.

But the allotment may leave a surplus of land still belonging to the Indians. The Severalty Act provides that after the lands have been allotted to all the tribe, or sooner if the President thinks it for the interest of the tribe, such portions as they will consent to sell may be purchased by the United States, for the sole purpose of selling it again (in tracts of not over one hundred and sixty acres to any one person) to actual settlers, who are not to have a deed until after five years of occupancy. The money is to be held by the United States for the benefit of the Indians. One observes that this last provision for obtaining the surplus land requires the consent of the tribe; the allotment does not. What happens, then, if this consent is not given? Evidently the tribe and tribal ownership of land may continue for some purposes after all the allotments are made. There are other difficulties in the construction of the act; but these need not detain us.

Now this statute puts it in the power of the President to forward rapidly the absorption of the Indians into our body politic. It does not compel him to do it. How fast he will move we cannot tell; but it is manifestly possible for him to move a great deal faster than is wise. It cannot be well to incorporate into our Western Territories and States the bulk of the Reservation Indians as citizens within any short time. Observe what Senator Dawes said at the Mohonk Conference in October, 1887, soon after the passing of this law: "President