A People Without Law

I.

IN saying “ A People without Law 舠 I mean our Indians. He who tries to fix and express their legal status finds very soon that he is dealing chiefly with their political condition, so little of any legal status at all have Indians. But we must at once discriminate and remind ourselves that there are different sorts of Indians. What makes any of them peculiar, in a legal point of view, is the fact that they belong to a separate political body, and that our government mainly deals with them, not as individuals, as it does with you and me, but in a lump, as a people or tribe.

When an Indian has detached himself from his own people, and adopted civilized ways of life, and resides among us, he at once becomes, by our present law, a citizen like the rest of us. There are many Indians in the country who have done this. We may set them one side. There are even many Indians in tribes who are our fellow-citizens. In the language of Judge Curtis in the Dred Scott case, “ By solemn treaties large bodies of Mexican and North American Indians have been admitted to citizenship of the United States.” The Pueblo Indians, for instance, have been judicially declared by the courts of New Mexico to be, in this way, citizens of the United States, although, oddly enough, we keep agents among them. In such cases, the tribal relation, while it is of course a matter of much social importance, is of no legal significance at all; it is like being a Presbyterian, or a member of the Phi Beta Kappa, or a Freemason ; and each Indian, however little he knows it, holds a direct relation of allegiance to the United States. Again, there are Indians in the separate States, as in Massachusetts, Maine, and New York, who, although in tribes, have never held any direct relations with the United States, but have been governed as subjects by these States. The problem of this class of people has been slowly and quietly working out under the control of the separate States, without any interference from the general government, until, in some cases, politically and legally speaking, they are not Indians. In Massachusetts, in 1869, every Indian in the State was made a citizen of the State, and it is supposed, I rather think correctly, that they have thus become citizens of the United States. It would not have been so if the general government had entered into relations with them before this declaration. Then the assent of the United States would have been required to make them citizens of that government. But whether citizens of the United States or not, they are citizens and voters in Massachusetts, and might determine the election of a President of the United States by their votes. In the States of Maine and New York the courts still call them the " wards of the State,” and as such the States govern them as they think proper, as being subjects, and not citizens.

Leaving these exceptional classes of Indians, what I propose to speak of is the legal status of that less than a quarter of a million of people with whom the United States government holds relations under the clause of the Constitution which gives to Congress the right to 舠 regulate commerce . . . with the Indian tribes,” — the people with whom we carry on war, and who live mainly on reservations secured to them by treaties or otherwise. There are, to be sure, some thousands of tribal Indians who wander about loosely over the plains, but in the main the class that I am to deal with, the class that is intimated when we talk of the “ Indian question,” may be shortly designated as the Reservation Indians. And yet here I must again discriminate. Out of these Reservation Indians we may conveniently set aside the seventy thousand or so who belong among the “civilized tribes” in the Indian Territory, — the Choctaws, Cherokees, and the rest. These are, to be sure, in strictness, Reservation Indians, and their legal status is highly interesting; a time is coming when it will require the close attention of statesmen, but it does not so much press upon public attention just now. These people govern themselves with a good degree of success ; they have constitutions and laws closely modeled upon ours, and have made much progress in the ways of civilized life. As regards their political relation to us, they rest, so far, in a good deal of security on the peculiarly solemn guarantees with which our government accompanied its settlement of them on their lands. But, as I have intimated, the time will probably come when, with or without their consent, there must be a readjustment of our relations with them. In looking ahead, we must contemplate an ultimate absorption of that region into the Union. Already, lately, there has taken place, in some measure, an extension over it of federal courts and federal law. If, then, we deduct these 舠 civilized Indians,” there remain somewhere between 130,000 and 180,000 others, whom I am calling Reservation Indians, either living on reservations or candidates for that sort of life ; and it is these whose case I wish to consider. In this statement the Alaska Indians are not included. They are too little known, and their relations to the other inhabitants of that country and to our government too little ascertained, to make it practicable to consider them.

I am speaking of " Reservation Indians. 舡 but what are Indian reservations? They are tracts of land belonging to the United States which are set apart for the residence of Indians. This is done in various ways,舒by treaty, by a law, by an executive order. Often the reservation is a region given to the Indians in exchange for their ancestral home and hunting-ground; sometimes it is a diminished part of this ancestral ground. The Indians, in most cases, are recognized as having a legal right to the occupation of this land. They do not generally own the fee of it; that is in the government. If the tribe should become extinct or abandon the land, the title would rest wholly in the United States. Their title is the same that they were recognized as having in the soil which they originally occupied and ranged over when the Europeans came here, — a right of occupancy merely, yet a right recognized by the courts so long, at any rate, as it is recognized by the political department. This right is merely tribal; the individual does not own land or have any legal right in it. On these reservations the Indians keep up, in point of theory and in the main, their separate national housekeeping, make their own laws, govern themselves. They owe no allegiance to us; each Indian owes allegiance to his tribe and its chiefs. With these separated people, as I said, we carry on war, and until lately we have concluded treaties. Such was the way, also, of our English ancestors.

It has turned out, however, for one reason and another, that they succeeded very poorly at making their own laws and governing themselves ; and we did not quite let them alone. We found, for instance, that it would not do to let in outsiders to trade freely with them, and that we must keep ourselves advised as to what they were doing, and whether they were standing to their promises; and so we sent agents among them to represent us in delivering to them the goods and money we owed them, and to protect them against intrusion. We could not allow intoxicating liquors to be sold among them, or firearms. We must, in short, fully 舠regulate commerce” with them. In this way it came about that we really interfered a great deal with the theory of their separate national housekeeping. Yet, further, when wars came, and with them the upsetting of everything and the rearranging by new treaties, of course we interfered still more. As time went by it was perceived that the Indian selfgovernment amounted to little, and we occasionally stepped in with laws to fill the gap. But it is only occasionally and in scraps that we have done this ; for the most part, we still stand by and see them languishing under the decay of their own government, and give them nothing in its place, — no courts to appeal to, and no resort when they are wronged excepting to fight. We keep them in a state of dependence upon the arbitrary pleasure of executive and administrative officials, without the steady security of any system of law.

In such a state of things as this, with a wretched system in existence, and with the need of a change, two courses are open to a good citizen, not exclusive of each other, but yet quite different. One is to endeavor to procure an honest, righteous administration of the existing system while it lasts, the punishment of offenders, the securing of good officials, the dismissal of bad ones, redress for outrages, and the creation of a public sentiment that will help to these ends. The other course is to displace that radically bad element of the existing system, the 舠 lawlessness ” of it, which poisons everything that is done, and disheartens the reformer by supplying new outrages as fast as he can correct the old ones. These two courses, as I said, are not exclusive of each other. He who would, first of all, abolish certain evil features of our present method of dealing with the Indians may well join in the endeavor to mitigate and mend the administration of the present system while it lasts. And yet a persuasion of the need and the possibility of a radical change will surely affect the judgment in determining the relative importance of things ; it will settle the question of emphasis, that most important thing in thought and conduct. I desire at the outset to express a conviction that the chief thing to be done, the thing imperative now, the thing that must not wait, whatever else is postponed, is a radical change in the particular of giving to the Indians courts and a system of law upon their reservations; and also to express the conviction that this is not only a thing so much to be desired, but that it is practicable, if those who are interested in this subject will only insist upon it in this spirit.

(1.) Let us now, in coming to closer quarters with this matter, run over certain facts of the legal and political history of our relation with the Indians. Of the more familiar matters I shall say little, but we will try to observe some of the leading points, — enough of them to come to a fair understanding of the situation.

When the Europeans came hither, in the fifteenth century and later, it was unavoidable that there should be conflicts between them and the people whom they found here. Not only the nature of the situation, but the European ideas of the relation to each other of white men and men of other colors, made it certain that there would be trouble. Had the new-comers all been saints and sages, this would still have happened, for they and the savages did not and could not understand each other. Their purposes crossed. Necessity drove each to acts that seemed hostile to the other. How could the savages fail to regard as enemies the strange people who seized and carried away to an unknown fate their neighbors and friends ; who carried off their stores of food, and stripped the graves of their families? How could they know what the Europeans were at ? And if they did know, how could they help fearing for themselves and their household gods ? The Europeans, however, were not saints and sages, but average men of their time ; and the natives were savages. In war both were ferocious and brutal; and the savages were ferocious and brutal to the last degree. In that famous first letter of Columbus, — lately reprinted in the Latin version of 1493 by Professor Haynes, of Boston, with a scholarly translation,— telling of his earliest discoveries, we read these ominous words;

“ As soon as I had come into this sea I took by force some Indians from the first island.舡 How did the Indians who remained like that ? Somehow or other Columbus carried away nine of them to Spain. Was it likely to be any relief to their families to know that they were destined to be duly baptized at Barcelona? Columbus’s plans contemplated the regular deportation of them as slaves. In the next century, the Spaniards, in their dealings with the Indians, did not at all improve upon Columbus. Of De Soto, in the fourth decade of the sixteenth century, we are told in Miss Fletcher’s Report on Indian Education and Civilization, “ De Soto’s wanderings across the country might be traced by the groans of Indian captives, male and female, reduced to slavery and compelled to bear the burdens of the soldiers ; by the flames of dwellings, the desolation of fields, and the heaps of slain, young and old.”

The English were not so bad, yet the adventurers who sailed along these coasts continued the same work of spreading terror and hatred among the natives. The Englishman Waymouth, sailing up a river of the State of Maine in 1605, " kidnapped and carried away five of the natives.” “ We used little delay,” he says, “ but suddenly laid hands upon them; and it was as much as five or six of us could do to get them into the [boat], for they were strong, and so naked as our best hold was by their long hair on their heads.舡 Nine years later, Thomas Hunt, a shipmaster, carried away seven and twenty Indians from the coast of Massachusetts, and sold them in Spain as slaves. Six years later, in November, 1620, the Mayflower company began its dealing with Indian affairs (while exploring Cape Cod before landing at Plymouth) by repeatedly taking the Indian stores of corn and beans which they had laid away for their own supply ; proposing to themselves, indeed, what the Indians must be pardoned for not appreciating, 舠 so soon as they could meet with any of the inhabitants of that place, to make them large satisfaction.” They seem also to have opened Indian graves, for we are told of the bowls, trays, dishes, knife, pack needle, the “ little bow,” and strings and bracelets of fine white beads that they found in one of them. They were now among the people whose neighbors had been kidnapped by Thomas Hunt. It is not strange, therefore, to read that when they saw some Indians a week later and tried to approach them, these ran away ; and to find that the first actual intercourse between our New England ancestors and the natives was as follows, — I quote from Dr. Palfrey’s History of New England: “The following morning [December 8], at daylight, they had just ended their prayers, and were preparing breakfast at their camp on the beach, when they heard a yell, and a flight of arrows fell among them. The assailants turned out to be thirty or forty Indians, who, being fired upon, retired.”

Observe, I am not just now concerned in blaming either the Pilgrims or the natives. I am drawing attention to facts, and beg my reader to remember that, all things considered, such events were sure to happen. They help us to guess and forecast the relation of separation that was to take place between the new - comers and their neighbors. As time went on, and new Europeans swarmed in settlements along the coast and on the rivers and meadows of the interior, — drawn often to the same points, to well-watered spots on the seacoast, the fording-places of a river, the lower falls of a tidal stream, or some fine inland river bottom, by the same attraction which had gathered the natives there, — as these things happened, all men know how collisions came and frightful wars and devastation, how the savages were beaten and crowded back. The necessity of self-preservation was held to justify any atrocities. 舠 The awful conditions of the case, 舡 says our grave historian, Dr. Palfrey, in speaking of the performances of Mason and Underhill in the Pequot war of 1637, 舠 forbid being dainty about the means of winning a victory, or about using it in such a manner that the chance shall not have to be tried again.”

Complications arose. Not only English, but French and Dutch had set foot on this continent, and they were rivals here. At home, also, these Europeans fought; this induced sympathetic fighting here; and this, again, drew in the savages, whose quarrels, as among themselves and with the colonists, were fomented for the advantage of the fighting Europeans. Whittier in his beautiful early poem of Pentucket (the Indian name of Haverhill) gives a picture of one of the incidents of these wars, when the allied French and Indians attacked that border town, his birthplace: —

Haverhill was my own birthplace, and I well recall the dreadful fear of Indians which the children of that town continued to cherish so late as fifty odd years ago, — a century and a quarter after these events. I can remember coming home from school in mortal terror lest my family had all been carried away by the Indians during my absence.

As time went on, in some colonies the Indians were driven to the west, out further into the vast unknown wilderness, and were forbidden to cross the line of demarcation between them and the whites; and state reservations were established along the border, on which friendly Indians were induced to settle, acting at once as a precaution and a buffer against the shock of hostile attack. During this process other things had happened. Individual Indians had settled among the whites, and had sunk into the mass of the people, and were governed like the rest. To some extent, also, tribes of Indians had been caught and surrounded by the flood of the new civilization, and remained islanded permanently as a separate people in the midst of it, yet governed more or less under the laws of the colonies. It was such cases as these, probably, that were referred to in the first permanent statute of our present national government, passed in 1802, to regulate “ commerce with the Indian tribes. 舡 The sixteenth section of that act begins, “ Nothing in this act shall be construed to prevent any trade or intercourse with Indians living on lands surrounded by settlements of the citizens of the United States, and being within the ordinary jurisdiction of any of the individual States.” It was owing, very likely, to this relegation to the States of the affairs of such Indians as are here described that we may trace the circumstance, often not understood, that some States, like New York, Massachusetts, and Maine, have continued to deal freely with Indian tribes within their borders. These tribes, in the language of the statute of 1802, had come to be “ surrounded by settlements of the citizens of the United States, and . . . within the ordinary jurisdiction of the . . . States.” As a dry question of power, Congress might at any time have taken control of them. But while Congress was staying its hand, it might happen, and has happened in Massachusetts, that the tribal relation had been dissolved. It has happened in the case of individual Indians, whose separation from their tribe has been recognized by the States, and in the case of whole tribes. In such instances, the “ Indian tribe,” in the sense of the Constitution of the United States, that is in the sense of a separate political community, has ceased to exist before it was ever recognized by the general government; and therewith the power of Congress has gone, because, as regards these persons, there exists no longer the opportunity to exercise it.

(2.) It will be observed that I have now brought the United States upon the scene. New problems have thus emerged. What are the relations between this new government and the Indians? How has their relation to the separate local governments been affected ?

The new government had its immediate origin in a sense of danger from England, and in the need of protection from that peril, and the like. One of the first things that presented itself was the possibility of harm from the savages ; for the colonies had had a direful experience of what an enemy might do who chose to ally himself with these people. Accordingly, in July, 1775, the Continental Congress resolved " that the securing and preserving the friendship of the Indian nations appears to be a subject of the utmost moment to these colonies,” and proceeded to adopt the first of our national arrangements for managing Indian affairs. Commissioners were appointed for each of the three departments (North, Middle, and South) into which all the Indians were divided. These commissioners were to have power to make treaties with the Indians, and to watch the operations of the British superintendents. 舠 The commissioners,” it was resolved, “ . . . [are to] have power to take to their assistance gentlemen of influence among the Indians in whom they can confide, and to appoint agents residing near or among the Indians to watch the conduct of the [British] superintendents or their emissaries.” There are many signs of the anxious care of Congress in this matter. Treaties with the Indians were immediately made. Congress, in January, 1776, directed the importation of $200,000 worth of goods on public account, to be sold by the Indian commissioners to persons licensed to trade with the Indians, at cost and expenses and a commission of two and a half per cent. These traders were to sell only at fixed points and fixed prices. In the same year it was resolved that disputes between the whites and Indians should be determined (if the Indians would agree) by arbitrators chosen one by each party, and one by the commissioners. Many of the Indians took part against us. The anxiety that was felt and the magnitude of the 舠 Indian question ” of that day are shown by the way in which this figures in the Declaration of Independence in 1776, and in the Articles of Confederation in 1778-81. “ He has endeavored,” is the charge of the Declaration against the British king, “ to bring on the inhabitants of our frontiers the merciless Indian savages, whose known rule of warfare is an undistinguished destruction of all ages, sexes, and conditions.” In the ninth of the Articles of Confederation, the separate States, which are forbidden to carry on war, may do this where a State 舡 shall have received certain advice of a resolution being formed by some nation of Indians to invade ” it ; and these Articles entrust to the Union 舡t he sole and exclusive right and power of regulating the trade and managing all affairs with 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 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 relation 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 separate 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 circumstance 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 separate 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 舠 Indian country,” or would new States grow up, and the white people spread over into the Indian land?

Some of these questions undoubtedly 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舡 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 Constitution 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, 舡 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. 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 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 satisfaction. 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 Southera 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 1877 ² 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 States³ 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, reënacted, with modifications, the previous provisions regulating trade and intercourse. There is the same clear theory of recognizing the Indians as a separate people, 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. The 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.

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,— an excellent step lately followed up by the present administration. Other changes were caused by the Pacific Railroad; for as General Walker says, “In 1867-68 the great plough of industrial civilization drew its deep furrow across the continent, from the Missouri to the Pacific, . . .

[ bringing changes] which without it would have been delayed for half a century.舡 The Revised Statutes of the United States, compiled in 1874, reveal the still increasing complexity of Indian affairs. The “ peace policy舡 had been adopted, and we find now not merely the regular Indian commissioner authorized in 1832, but an additional board of commissioners, not exceeding ten (serving without pay), to supervise contracts and purchases for Indians, and for other purposes; also five salaried inspectors to visit, examine, and report on the different superintendencies and agencies, and see to enforcing the due performance of their duty by the superintendents, agents, and other employees. The old provisions for authority to the President to employ teachers among the Indians, “with their own consent,”are retained. In general we mark an increase of interference with the Indians and of discretionary power over them in the executive department, as in allowing the President to distribute the money or goods due to a tribe to the heads of families (instead of the tribal authorities), and directly to the individuals who are entitled to participate. Agents are required to protect in the enjoyment of their lands those Indians who have received lands in severalty, and are desirous to adopt the habits of civilized life. This draws attention to a process which had been going on by treaty, of dividing up tribal lands to the individual Indians. If any other Indian molest a landowner, the tribal annuities are to be cut down ; and if the trespasser be a chief, the local superintendent of Indian affairs may depose him from his office of chief for three months. Think of that, — the deposing of the sacred ruler of a separate “nation” by a small United States official! This is indeed a bold inroad on the theory of Indian selfgovernment. The sale of ardent spirits to any Indian under the charge of a superintendent, anywhere in the country,⁴ is forbidden, — a restraint upon Indians which does not apply to any other class of human beings. The general laws of the United States defining and punishing forgery and depredations on the mails are also extended to the Indian country, by a statute of 1855.

Meantime, the practices of the agents and of the Indian Department generally had more than kept pace in this direction with the course of legislation. “Under the traditional policy of the United States,” says General Walker,⁵ “the Indian agent was a minister resident to a domestic dependent nation.舡 But in actual fact he had grown long ago to be a ruler over them. “ All offenses,” wrote an Indian agent to the commissioner in September, 1890, “are punished as I deem expedient, and the Indians offer no resistance.”

It remains to speak more particularly of three recent statutes, and then to consider the duty of our government.

James Bradley Thayer.