Part 7
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."[L] 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[M] 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[N]; 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.[O]
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.
This comprises all that is essential in this connection. The _indicia_ gathered from particular acts of the government, or from the phraseology of individual treaties, really add nothing to the above.
We believe the following propositions to be consistent with the facts of history and with the latest judicial decisions.
1. The exclusion by the Constitution of "Indians not taxed" from the basis of representation was in no sense a guaranty to the Indian tribes of their political autonomy, but was a provision in the interest of an equitable apportionment of political power among the States, some States having many Indians within their limits, others few or none.
2. The self-government enjoyed by the Indian tribes under the Constitution of the United States, as under the European powers, has always been a government by sufferance, by toleration, by permission. The United States, for their own convenience, have allowed this self-government, because to reduce the savages to the condition of submitting to civilized laws would have involved a great expense of blood and treasure; while through the tribal organization a much better government, for the purposes of the civilized power if not for the welfare of the Indians themselves, could be obtained, than through an administration which should disregard that organization. But this toleration of savage self-government worked no prejudice to the sovereignty of the United States.
3. The decay of a tribe in numbers and in cohesion, no matter to what extent carried, does not bring the members of such tribe within the municipal jurisdiction of the State wherein they are found, so long as the tribal organization continues to be recognized by the National Government. See the Kansas Indians, 5 Wallace, 737.
4. Congress is constitutionally competent to extend the laws of the United States at once over every Indian tribe within the Territories, if not within the States of the Union, even though treaties may guarantee to individual tribes complete and perpetual political independence; the breach of faith involved in the latter case being matter for possible conscientious scruples on the part of legislators, not for judicial cognizance. See 11 Wallace, 616; 2 Curtis, 454; 1 Woolworth, 155.
We have thought it important thus to review the doctrine of the Report of the Senate Judiciary Committee, because, from the high standing of the Committee, from the assumption which the Report[P] makes of completeness in the citation of "treaties, laws, and judicial decisions" pertinent to the subject, on the express ground of a desire to enlighten, not only Congress, but the country, in respect to our Indian relations, and from the wide circulation given to the Report, as compared with that obtained by an ordinary decision of the Circuit or Supreme Court of the United States, the Report has apparently come to be accepted by Congress and the country as an authoritative exposition of the history and law of the subject although, in the very month in which it was submitted to Congress, the Supreme Court, in the Cherokee Tobacco, pronounced a doctrine which cuts up that of the Report, root and branch.
Such being the constitutional competence of Congress to deal with the Indians, without restraint either from the self-government hitherto permitted them, or from treaties to which the United States are a party, it is for Congress to decide, firstly, what the good faith of the nation requires, and, secondly, what course will best accomplish the social and industrial elevation of the native tribes, with due consideration had for the interests of the present body of citizens.
How, then, stands the matter with the faith of the nation? By the Report on Indian Affairs for 1872, there appear (p. 16) to be in the neighborhood of 120,000 Indians with whom the United States have no treaty relations. These certainly can have no claims to exemption from direct control, whenever the United States shall see fit to extend its laws over them, either to incorporate them in the body of its citizenship, or to seclude them for their own good. There are, again, as nearly as we can determine by a comparison of treaties with the Reports of the Indian Office, about 125,000 Indians with whom the United States have treaties unexpired, but to whom no distinct guaranty or promise of autonomy has been made. Examination of these treaties reveals nothing which should prevent the United States from establishing a magistracy and a code of laws for the government of these tribes, according to principles suited to their present condition, yet tending to raise them to a higher social and industrial condition. On the other hand, the perpetual interdiction of all white persons upon the reservations of these tribes, except "such officers, agents, and employees of the government as may be authorized to enter upon Indian reservations in discharge of duties enjoined by law," would seem to preclude the possibility of these regions ever being opened to settlement, and the Indians thereon resolved into the body of citizens on equal terms. But, as matter of fact, not even such treaty provisions need, with intelligent and firm but kindly management, greatly or long embarrass the government in the adjustment of the Indian question according to either principle which may be adopted, seclusion or citizenship. Few of these tribes but are obliged, even now, to seek from the United States more aid than they are entitled to by treaty; while it is certain that in the near future most, if not all, will be thrown in comparative helplessness upon our bounty. The United States being the sole party to which they can cede their lands (8 Wheaton, 543), and the sale of the great body of these lands being their only resource, the government will have the opportunity, not only without fraud or wrong to this people, but for their highest good, and indeed for their salvation from the doom otherwise awaiting them, to cancel the whole of these ill-considered treaties, leaving the natives where they ought to be,--subject to direct control by Congress. We repeat, there need never be any difficulty in securing, at the right time and in the right way, the relinquishment of lands or privileges from the Indians. They are, unfortunately, only too ready to sacrifice the future to present indulgence; while the government on its part can always afford to pay them far more for their lands than their lands are worth to them. Under this relation of the parties in interest, and with the pressure of actual want, due to the inability of the natives properly to cultivate what they possess, the United States may at an early date, with good faith and judicious management, easily secure the relinquishment of every franchise that stands in the way of a satisfactory adjustment of the difficulty.
There is still a third body of Indians, about 55,000 in number, occupying chiefly the regions known as the Indian Territory, and representing the tribes which were the subjects of the colonization policy of Pres. Monroe, to whom the United States have plighted their faith that no foreign authority shall ever be extended over them without their consent. These are not beggarly and vagabond Indians, to whom the offer of subsistence would be sufficient to obtain the relinquishment of their franchises, or the cession of their lands. They are self-supporting, independent, and even wealthy. Their cereal crops exceed those of all the Territories of the United States combined. In the number and value of horses and cattle, they are surpassed by the people of but one Territory; in expenditures for education, by the people of no Territory.[Q] If these people ever relinquish their autonomy, it will be because they desire the privileges of American citizens. This may well be in the immediate future, and surely will be, sooner or later, unless they are made to fear the violence and greed of their white neighbors. Meanwhile, they should be honorably protected in the enjoyment of their treaty rights. They have already advanced so far in civilization as to secure their own future, as against any thing but squatter and railroad rapacity; and their fate does not properly form a part of the Indian problem of the present day.