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posals were that there is no demand on For, with the abolition of Mods., either the part of undergraduates for a short- scholarship must be provided for in the ened course ; that the vast majority do final school, to the detriment of ancient not want, and are not fit, to specialize; history and philosophy, or three coördiand that specialists are a small propor nate schools must ultimately be estabtion among honor men. A shorter time lished, and the student take his degree as before Mods. would deprive able but a specialist in one. There would be few ill-trained men of any chance of com genuine students in the fourth year, as peting with those who had been fortu is proved by the fact that at Cambridge nate enough to get better school training the average number of candidates durIdling might be prevented by reducing ing the last eight years for the second the number of set books, and making part of the tripos is eighteen, for the the amount of sight work larger. If the first part one hundred. student were to read in masses, as at The conservative opinion seems to Cambridge, he would find the freedom have prevailed ; at any rate, the curricustimulating and delightful, and for such lum for the present remains unchanged, a feasting in classical literature five and the tendency to specialism has not terms would scarcely be found too long. yet seriously begun to encroach upon an The one-examination system is condu- educational system which Plato and cive to idleness and to the breaking up Comte would be at one in commending of the school of Literæ Humaniores. for its abstraction and generality.

S. E. Winbolt.

BEYOND THE DAY.

BEYOND the common daylight gleam
High brightnesses, and where they beam
The soul will be. A strange noon star
Allures. We take our way afar.

Voices familiar to the ear
Now speak in vain, - it does not hear ;
There's sweeter calling from afar,
Where blissful burns the mystic star.

Erelong returned, we may not say
What land we found beyond the day ;
What voice did call we may not tell ;
But land and voice,

we know them well.

And some new flower we back may bring,
Some new pure melody may sing,

Which men seeing and hearing say,
“Truly his soul has been away."

John Vance Cheney.

A PEOPLE WITHOUT LAW.

II.

the tribal autonomy ;” and so it was, in

the logic of it. But the step was not THREE important statutes about the then followed up, for it did not repreIndians remain to be mentioned, one of sent any clear determination of Congress which was incorporated in the Revised to end the old methods; and this strange Statutes.

notion of refusing to make treaties with (a.) A statute of March 3, 1871, a people with whom we continue to go to reads : “No Indian nation or tribe war has remained on our statute book within the territory of the United States as another of the many anomalies that shall be acknowledged or recognized as mark our Indian policy. Is it not plain, an independent nation, tribe, or power however, that if we abandon the policy with whom the United States may con- of treaties with Indians we should give tract by treaty,” — saving, however, the up the practice of war with them? Our ,

? obligation of previous treaties. This was arrangements with them are now called enacted twenty years ago. Did it abol- agreements; but this gives them no ish the existence of these separate polit- added sanction; they are still to be dealt ical powers, nations, or tribes ? No, we with on the analogy of treaties. all know that they have continued and (6.) The second statute to which I rebeen recognized just as before. Did it fer is that of March 3, 1885. It followed abolish the carrying on of war with the up timidly the logic of the law of 1871, Indians ? No, we remember the horri- though for only a step or two; but it ble events of last winter, and a recent marked the greatest advance yet reached judicial decision in South Dakota, that in the process of assuming the direct the Indian known as “ Plenty Horses” government of the Indians. The law was not guilty of homicide in killing a provides that thereafter Indians should white man during those troubles, because be punished for committing upon Indiit was an act of war. Do we then carry ans or others any one of seven leading on war with Indians and not make trea- crimes (murder, manslaughter, assault ties with them ? Yes. A strange and with intent to kill, rape, arson, burglary, absurd situation, is it not? Yet we do or larceny): if in a Territory (whether make 66

agreements” with them as with on or off a reservation), under the terria separate people ; and the chief result torial laws and in the territorial courts ; of this law is, and was intended to be, and if in a State and on a reservation, that it is no longer the President and then under the same laws and in the Senate (the treaty-making power) that same courts as if the act were done in a conclude these measures, but the legis- place within the exclusive jurisdiction of lative body, Congress. This statute was the United States. This is a very imthe result of a struggle on the part of portant statute. In principle it claims the House of Representatives to share for the United States full jurisdiction in these proceedings, and was forced over the Indians

upon their reservations, upon the Senate on the last day of a whether in a state or Territory. Heretosession by putting it into an appropria- fore, the laws, for example the statute of tion bill. It was thought at the time 1817 and the renewals of it, had excepted by so competent an observer as General the acts of Indians committed upon their Walker, formerly Commissioner of In- fellows within the Indian country. The dian Affairs, to be “a deadly blow at acts of Indians against white persons or

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of whites against Indians had been dealt Territories, but on reservations within the with, but the internal economy of Indian States. The case, as I said, arose on a government was not invaded in its deal- reservation in the State of California. ing or refusing to deal with the rela- “ This proposition itself,” said the court,

, tions of members of the tribe to one with no dissent, speaking through Mr. another. The constitutionality, even, of Justice Miller (that is, the proposition such legislation as this of 1885 had to punish under the laws of a Territory been denied. Judges had been careful to and by its courts a tribal Indian who avoid asserting this full power in cases commits a crime upon another tribal Inwhere the reservation was in a State. dian on a reservation in a Territory)," is Thus the Supreme Court of the United new in legislation of Congress. ... The States, in 1845, in holding good the law second, which applies solely to offenses of 1817, which punished (in this particu . . committed within the limits of a lar case) the act of a white man against a State and ... of a reservation, white man in the Indian country, among still further advance as asserting this the Cherokees, said: “Where the coun- jurisdiction over the Indians within the try occupied by them is not within the limits of the States of the Union. ... limits of one of the States; Congress may After an experience of a hundred years by law punish any offense committed of the treaty-making system of governthere, no matter whether the offender ment, Congress has determined upon a be a white man or an Indian.” In new departure, - to govern them by acts 1834 Mr. Justice McLean had denied of Congress. It seems to us that the power of Congress to legislate in this is within the competency of Conthis way for an Indian reservation in a

gress.” State, while admitting it in a Territory; Not less important than the decision and in December, 1870, the judiciary itself is the principle on which it is put. committee of the Senate of the United In supporting the statute the governStates even went so far as to say, “An ment counsel had relied on the clause in act of Congress which should assume to the Constitution which gives Congress treat the members of a tribe as subject power “to regulate commerce with ... to the municipal jurisdiction of the the Indian tribes.” But the court boldly United States would be unconstitutional rejected this as “a very strained conand void.” 1 But the air was at last struction of this clause,” and rested its cleared in 1886, when the Supreme decision upon no specific provision of Court of the United States had to deal the Constitution, but

the Constitution, but upon the just inferwith the indictment, under this statute, ences to be drawn from the nature of of one Indian for the murder of another the situation, namely, that the Indians Indian on a reservation in the State of are a decayed power, residing upon our California. It was laid down in this soil and under the protection of the gencase, one of the landmarks of our In eral government, a people who must dian law, that the government of the be governed by somebody, and whom, so United States has full power, under the long as their separate political existence Constitution, to govern the Indians as its is recognized by the United States, noown subjects, if it sees fit to do so, and body but the United States has

any right to such partial or full extent as it sees to govern.

- The Constitution,” says fit; that nothing in the tribal relation or the court, “ is almost silent in regard to in any previous recognition of it by the the relations of the government ... to United States cuts down this legislative the numerous tribes of Indians within power; that this is so not merely in the its borders. . . . While we are not able 1 Walker, The Indian Question, 125.

? United States v. Kagama, 118 U. S., 375.

66

to see in either of these clauses of the and because it alone can enforce its laws
Constitution ” (namely, the one relating on all the tribes.”
to the basis of representation, "exclud- Here, it will be noticed, is a compre-
ing Indians not taxed,” or the clause hensive and statesmanlike declaration.
giving Congress power to regulate com- It covers the entire ground; the gov-
merce with the Indian tribes) any ernment, if it pleases, can go on to ex-
delegation of power to enact a code of tend its law fully over the Indians while
criminal law,. .. [yet] these Indians are they are still a separate people. Observe,

.
within the geographical limits of the now, one thing. The existence of this
United States. The soil and the people right and power, and the clear and au-
within those limits are under the politi- thoritative declaration of it by the Su-
cal control (either] of the government preme Court of the United States for
of the United States or of the States of the first time in 1886, have brought
the Union. There exist . . . but these home to the Congress of the United
two. The territorial governments owe States and to us all, now within these
all their power to the statutes of the recent years, a great weight of responsi-
United States. ... [But] Congress has bility. It may have been thought possi-
defined a crime committed within the ble before to deny the legal power fully
State and made it punishable in the to govern the Indians. It cannot be
courts of the United States. Con- denied now. Under such circumstances,
gress has done it. It can do it with re- the mere neglect or refusal to act is it-
gard to all offenses to which the federal self action, and action of the worst kind.
authority extends. ... This is within the (c.) The third and last of these
competency of Congress. These Indian statutes — and the last upon which I
tribes are the wards of the nation. shall comment is the General Land
They are ... dependent on the United in Severalty Law (often known as the
States, dependent largely for their daily Dawes Bill). This was passed in Feb-
food, dependent for their political rights. ruary, 1887, within nine months of the
They owe no allegiance to the States and great decision upon which I have just
receive from them no protection. Be- been remarking: the dates are May 10,
cause of the local ill feeling, the peo- 1886, and February 8, 1887. But it
ple of the States where they are found was pending in Congress at the time
are often their deadliest enemies. From of that decision, and had long been pend-
their very weakness and helplessness, so ing there under bitter opposition. This
largely due to the course of dealing of great enactment opens the way, within
the federal government with them and a generation or two, to settle the whole
the treaties in which it has been pro- Indian question. Whether it is to be
mised them, arises the duty of protection, regarded as a good law or a bad one,
and with it the power. . . . The power however, depends on the moderation with
of the general government ...

is neces

which it is administered. The peculiarity sary to their protection as well as to the of it is not that its methods are new, safety of those among whom they dwell. for similar arrangements had repeatedly It must exist in that government because been made, for a score of years before, it never has existed anywhere else, be- in the case of particular tribes, as the cause the theatre of its exercise is within Winnebagoes in 1863, the Stockbridge the geographical limits of the United Munsee Indians in 1871, the Utes in States, because it never has been denied, 1880, and the Omahas in 1882. But 1 The italics are those of the court. There

now, by a general law applicable to is a tacit reference to the famous phrases of an

all reservations, the President is given earlier opinion.

power to make almost

every

Reservation

1

Indian outside the civilized tribes a land- voluntarily live apart from it, adopting owner in severalty and a citizen of the the habits of civilized life. This last United States against his will. The class of persons had been declared by right of citizenship is made to follow the the Supreme Court of the United States, ownership of land.

in November, 1884, not to be citizens The scheme of the act is this: When- of the United States, in the absence of ever the President thinks that any In- such legislation. It is important, also, dian reservation, or any part of one, is to notice that Indians are stimulated to advantageous for agricultural or grazing take their allotments by a clause that purposes,

he may cause the whole or any this shall be a ground of preference in part of the reservation to be surveyed appointments on the Indian police and and allotted in severalty, in specified other public offices.

. amounts, among all the heads of families, But the allotment may leave a surplus single persons, and orphan children of of land still belonging to the Indians. the tribe or band. The Indian heads of The Severalty Act provides that after the families may select for their children, lands have been allotted to all the tribe, and the Indian agents for the orphans. or sooner if the President thinks it for If in four years from the ordering of an the interest of the tribe, such portions as allotment no selection is made in any they will consent to sell may be purgiven case,

it
may

be made by an agent chased by the United States, for the sole on the order of the Secretary of the In- purpose of selling it again (in tracts of terior. Patents (that is, deeds) are to be not over one hundred and sixty acres to issued by the Secretary of the Interior any one person) to actual settlers, who on his approval of the allotments, set- are not to have a deed until after five ting forth that the United States will

years

of
occupancy. The

money

is to be hold the land in trust for the allottee for held by the United States for the benetwenty-five years, and then convey in fee fit of the Indians. One observes that to him or his heirs, free of all incum- this last provision for obtaining the surbrances. Meantime the allottee cannot plus land requires the consent of the convey or incumber the land, and, as it tribe; the allotment does not. What seems, it is not taxable. When these happens, then, if this consent is not given ? allotments and patents are all made (and Evidently the tribe and tribal ownership perhaps sooner) the Indians are said by of land

may

continue for some purposes the terms of the statute to pass at once after all the allotments are made. There from the jurisdiction of the United are other difficulties in the construction States to that of the Territory or State in of the act; but these need not detain us. which the reservation is situated, and to Now this statute puts it in the power become at once citizens of the United of the President to forward rapidly the States. The construction of the law is absorption of the Indians into our body

. doubtful, but it is the view, I believe, of politic. It does not compel him to do it. the Indian Bureau at Washington that How fast he will move we cannot tell ; these results happen not merely when but it is manifestly possible for him to all is done, but man by man, as each has move a great deal faster than is wise. It his allotment and his patent. I venture cannot be well to incorporate into our to question the soundness of that view. Western Territories and States the bulk This statute also provides for allotments, of the Reservation Indians as citizens with like results, to tribal Indians not within any short time. Observe what on reservations who

may
settle
upon

the Senator Dawes said at the Mohonk Conpublic lands. It makes citizens at once ference in October, 1887, soon after of all Indians who leave their tribe and the passing of this law : “ President

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