ON February 8, 1887, the enactment of a great, far-reaching, and beneficent law relating to the Indians was completed by the signature of the President. So important a measure deserves to be carefully studied and exactly appreciated. This is the more desirable, because there is danger lest the greatness of the present achievement should lead good men and women to slacken their vigilance, and to forget that much yet remains to be done. The severalty law. still best known as the “ Dawes Bill,” by the name of the distinguished Senator who secured the passage of it, contemplates and goes far to make certain the abolition of all the civil and political disabilities of the majority of the Indians, and the granting to them of land in separate ownership ; but it does not accomplish all this at once. Moreover, there is much which it has not undertaken to do at all. What, then, is the exact scope of the law ? What has it done, and what has it not done ? What should now be undertaken ?
I. As to what the law has done.
It deals with two subjects only, namely. the ownership of land and citizenship. These things have no necessary connection with each other. A man may own land without being a citizen, or having the right to become one. A Chinaman, who cannot, under our present laws, be naturalized, may own land ; and many a tribal Indian, not yet a citizen, has long owned it.
A. Of these two things, it is the land question with which the severally law is primarily and mainly taken up, — with provisions looking first to securing to the individual Indians the ownership of separate parcels of land ; and second, after taking out land enough to satisfy these separate allotments, to getting the rest of the reservations into the market, and thus opening them to settlement and occupancy by the whites.
It has long been perceived that the key to the solution of the Indian question lies in a just arrangement about their land, — one which should abolish the tribal title, give to individuals the ownership of reasonable quantities, and throw open to settlement all the rest. In general, as it is well known, our law has mainly dealt with the Indians by tribes, and not as individuals, and has not recognized, even in the tribes, ownership of the land they occupied, in any strict sense of the word. England, like the other states of Europe, claimed the lands of the New World by the right of discovery. Had these lands, when found, been occupied by “ Christian people,” their title to the land would have been respected ; but barbarous races were at that period dealt with in a very different way. The Indians were perceived to be human beings, and so capable of rights; and they were allowed a right of occupancy in the land, in such reasonable amounts, at any rate, as they actually inhabited and used. They were not quite on a footing with the wolves and wild-cats that also tenanted this country ; for, unlike them, they did have their right of occupancy. But when they went away the right was gone ; and it has been repeatedly laid down by the Supreme Court of the United States that the Indian title,” as it is sometimes called, was not inconsistent with the fee simple, the absolute ownership, being in other persons. So that it is not too much to say that the soil of this country was granted by the Europeans, and has since passed from hand to hand, upon a theory which, as regards ownership of the soil, placed the Indians and the wild animals that roamed over it upon the same footing.1
But there came the inevitable process of adjustment, of fixing the boundaries of the “ Indian country,” and taking a cession of their claims to all the rest; and then, further cessions and treaty arrangements, and removals of the Indians to new and remoter regions. In this way their slender rights to the land became modified ; some tribes acquired an absolute title, and others a smaller right than that, but greater, or at least securer, than before. We moved most of them to the West, and were fain to forget them. But that was not so easily done. The country grew ; and in recent years, instead of their being isolated and far beyond our settlements, it has come to pass that they are in the midst of them. The tide of our population has crept in and around and behind their reservations, and swept far beyond them. People look over into the fertile Indian tracts from which they are shut out, and covet them; and they begin to break through and steal.
It has long been seen that these regions must be opened ; that the ownership or control of great tracts of country by tribes — tribal control, that strong bulwark of the power of the chiefs — must be broken up ; that individual Indians should be allowed the immense stimulus towards a civilized life which comes with the separate ownership of land ; and last, but by no means least, that the clamor of outsiders for a chance at the Indians’ unused and wide-stretching fields must, in some honest way, be met. Indeed, this “ greed of the landgrabber” it is to which leading supporters of the severalty law now look as furnishing a main impulse to the rapid execution of it, — recalling, perhaps, the familiar scripture : “ Surely the wrath of man shall praise thee.”
This matter, then, this dealing with the land question, takes up the body of the new statute. And what is it, exactly, that it does about the Indians’ land ?
1. It authorizes, but it does not require, the President, in case any Indian reservation has good agricultural and grazing land (and it may probably be assumed that there are none in which there is not some such land, so that we may say that it authorizes the President, in the case of all reservations), to cause a survey of “ said reservations, or any part thereof,” and to allot the land in specified amounts (for example, one quarter of a section to each head of a family) to such of the Indians, men, women, and children, as may apply for it in the designated way. So far it is wholly optional with the President whether he will offer anything to the Indians, and then with the Indians whether they will accept what is offered. But after four years from the time when the President directs the making of allotments on any specific reservation, if there be any Indians who have not come forward and claimed their share of land, the Secretary of the Interior is authorized, but he is not required, to compel all of these reluctant Indians to take an allotment, and, to that end, to appoint a person to select for them.
It will be noticed, then, that the President has the power, in the case of all the reservations, (1) to proceed at once to a survey and allotment of all the lands ; and (2) within four or five years — four years, in the case of each reservation, from the time that an allotment is ordered thereon — to fix each head of a family and each single person, among the tribal Indians, man, woman, or child, with the ownership of a considerable tract of land. This process, on several reservations, has already begun.
So far all relates to the reservations. But there is another class of Indians, not very numerous, — wandering people, and others not living on reservations. As regards these, it is provided that they may settle upon any public lands not otherwise appropriated, and have an allotment, upon application to the local land-office, without the usual payment of fees. As touching these Indians, all is optional with them : they may proceed at once; no one can, at any time, compel them to take their land ; and on the other hand, they need not wait for the action of President or secretary.
There are matters of detail which it would not be instructive to enlarge upon ; for example, provisions as to regulating the use of water for irrigation, and for extending over the reservations those laws of the adjoining State or Territory which relate to the descent and partition of land. The chief of these matters of detail is a provision that the Indian owner of land in severalty cannot for twenty-five years convey this land, or make “ any contract . . . touching the same.”
2. But there is more which concerns the Indians’ land. Little mention has yet been made of that part of it where the mainspring lies, — that appeal to the land-grabber,” to cite again the phrase of an eminent champion of the law, —which seems likely to bring a pressure upon our public officials that will start them into activity.
The allotments to individual Indians may take but a small fraction of the whole reservation : these allotments run from forty acres up to a hundred and sixty acres apiece, and in some contingencies to a possible three hundred and twenty acres. Much land may be left. The law therefore authorizes the Secretary of the Interior, when all the allotments have been made, or sooner, if the President thinks it “ for the best interests ” of the tribe, to purchase from the Indians the whole or any part of the reservations not needed for allotments. This, then, may be done immediately, or at least as soon as it can be ascertained how much must be reserved for allotments.
In this part of the law, also, there are details which need not be mentioned, with the exception of two : 1. The purchase money to be paid by the government for this land does not go directly to the Indians, but is to be held in the United States Treasury, on interest at three per cent., subject to appropriation by Congress for the education and civilization of the Indians of the particular reservation. One would feel a good deal surer of the proper application of that money if it were to be put into some trust company, upon specific and defined trusts. 2. Another provision requires all the land thus obtained by the government which is “ adapted to agriculture ” to be disposed of only to actual settlers, in tracts not exceeding a hundred and sixty acres to one person ; and no patent (that is, no government deed) is to be issued until the grantee has occupied his tract for five years.
Such, then, are the provisions of the severalty law about land: first, for breaking up tribal ownership, and giving to each tribal Indian, whether on or off a reservation, a separate title to a reasonable amount of land ; and second, for opening to settlement all the rest of the Indian land.
B. The other matter dealt with in this law is citizenship.2 All of this momentous part of the statute is found in the few lines of sec. 6 ; and it is not free from ambiguity. In order to understand it, one or two explanations are necessary. 1. It must be remembered that provisions for allotting lands to Indians in separate ownership had previously been put into treaties and statutes. In this respect, the Dawes Bill only adopted and made of general application measures that had been here and there, in the case of particular tribes, made use of before ; and this is the significance of the title, sometimes given to it, of the “ General Land in Severalty Law.” 2. There have always been instances of Indians leaving their tribe, and settling among the whites. What the precise status of these people was had been made a question. Had they, by settling among the whites, — perhaps paying taxes and voting, and perhaps not, but still abandoning their tribe, and, as it were, expatriating themselves, — become citizens of any State or of the Union ? Three years ago, this class of questions was mainly settled in the case of Elk v. Wilkens, 112 U. S. 94, where it was held that a tribal Indian could not become a citizen of the United States merely by thus abandoning his tribe and settling among the whites. 3. It must be remembered that a citizen of the United States is not necessarily a citizen of any State. A person born and always living in a Territory is never the citizen of any State, but he may be a citizen of the United States.
Now, recognizing these things, let us see what sec. 6 of the severalty law accomplishes. 1. It declares that every Indian who has heretofore voluntarily left his tribe and adopted “ the habits of civilized life ” shall be a citizen of the United States. Whether those who do this hereafter are to become citizens thereby is not so clear. 2. It gives national citizenship to every Indian who shall have received an allotment of land under this law, or under any other law or treaty. The grounds for the doubt expressed just now as regards Indians who shall hereafter leave their tribe may be seen by comparing the language relating to that class of Indians with the expressions used in dealing with those who take allotments. The statute reads thus : “ Every Indian ... to whom allotments shall have been made . . . and every Indian . . . who has voluntarily taken up . . . his residence separate and apart,” etc. The general purposes and scheme of the statute give reason for construing these tenses as synonymous. 3. Upon the completion of all the allotments and the issuing of the government deeds in any reservation, those who receive them “shall have the benefit of and be subject to the laws, both civil and criminal, of the State or Territory in which they may reside.” This result is thought by many, including Senator Dawes, to follow immediately, in the case of each Indian, one by one, as fast as they receive allotments and deeds ; and it is said that this construction is accepted by the Interior Department. The language is this: “Upon the completion of said allotments and the patenting of the lands to said allottees, each and every member ... to whom allotments shall have been made shall have the benefit,” etc. There are several perplexing questions as to the precise effect and the proper construction and operation of sec. 6 ; but it is not best to enter further upon them here. This, then, is the upshot of the second part of the law, namely : (1) that all to whom land is patented become at once citizens of the United States ; (2) that all who, before the law, had gone away and adopted the habits of civilized life (and perhaps all who thereafter do this) are declared to be such citizens ; (3) that when all the Indians on any reservation have thus been made citizens (and perhaps as each in succession becomes a citizen), they are to pass from under the special control of Congress, and to come, so far as Congress may authorize this, under the jurisdiction of the States and Territories.
As to the whole law, the main provisions of it may be put into a word or two, thus : It enables a willing President to give to the tribal Indians private ownership of land ; and thereupon they become citizens of the United States. It also enables the Executive to acquire the remaining land of the reservations, if the Indians will sell it, and to open them to settlement.
II. So much for what the law accomplishes. Now consider what it does not accomplish, and does not aim at. It is hardly necessary to say that the law does not seek to reach these grave results at once. That is apparent on the face of it. Some tribes, like the powerful Sioux, are not now ready to accept the new order of things. Even if all Indians were now ready, it may well be doubted by any President who cares for their best interests whether they should be made citizens at once, or with anything like the speed which would attend an immediate execution of the provisions of the law. For it must be observed that when this is done, Congress can no longer give any special protection to Indians ; they are then at sea, in the same boat with all other citizens, and must sink or swim with them, and take their chance, with the rest, of being covertly thrown overboard by the majority.
That is a very grave objection to giving immediate citizenship to Indians. If the severalty law, instead of giving citizenship at once upon the allotment and patenting of land, had adopted some such rule as that applied to certain Wisconsin Indians in 1865, or that in the case of certain Kansas Indians in 1873,3 requiring specified evidence of intelligence and fitness before citizenship was given, it might be assumed that the execution of the law ought to be pushed forward with all possible speed. But as things stand, it is by no means certain that it would be best to do that now, or that those will think it best who have the discretion to initiate proceedings. But even if we assume that the law will be rapidly put in force, it will take a considerable number of years before it accomplishes its purposes. What will be the situation in the interval ? In order to answer that question, it must be observed what it is that the law does not do.
1. It does not cover the case of all the tribal Indians. Ten or eleven tribes are excepted, including the so-called “ civilized tribes ” in the Indian Territory. Very likely this may have been a wise omission. — at any rate in the main ; but the fact continues, and should be kept in mind, that many thousands of Indians, perhaps a quarter or a third of them all, are not touched by the severalty law.
2. While it provides for the gradual picking off of members of the tribes, and planting them, here and there, on the reservations as citizens and land-owners, it provides them with no courts there, no means whatever of enforcing their rights there, and no system of law. There is little or no law on the reservations now except the vanishing traditions of tribal authority.4 Certainly an Indian lacks much who is set up in the middle of a reservation which may be several times as large as Massachusetts ; endowed, to be sure, with citizenship and land, but with no courts to appeal to, and no organized political society about him. He has lost his old surroundings, and has not yet acquired any new ones ; he has passed into a sort of limbo.
3. It leaves these land-owners with little power to use their land. They cannot let it on shares, or let it at all, or make any contract about it, or make an exchange.
4. There is no arrangement for securing to these new citizens the laying out of roads, or any other public improvements. Since their land is inalienable for a quarter of a century and untaxable, there is small inducement to any State or county to do much for them. Trouble has already arisen on this score, in the case of lands allotted under previous laws.
5. The law makes no provision for the education of these new citizens or their children.
6. It leaves the whole reservation system untouched. Outsiders are still to be kept out; only the agents and political officials from Washington and such as they admit may come in. Only the licensed Indian trader can do business there. The new citizens will, indeed, be in the same position on the reservation as any of us would be if we were to go out and live there. But what would that be ? We should be full citizens, to be sure, with liberty to move away if we liked. But while we chose to stay there we should find the air not very invigorating ; we should be subject to all the restraints and limitations upon our full rights which are incidental to maintaining a non-intercourse reservation system; we should find there the same prevailing barbarism, the same sickly, stunted, abortive civilization, the same absence of trade or commerce, the same mischievous and unfettered political control, denying civil and political rights to the tribal Indians who have not become citizens, and making beggars of them.
III. What, then, remains to be done ?
1. Courts and some system of law should be at once provided for the reservations, not merely to protect the newly created Indian citizens, but for all the Indians and others who may be living there.
2. Provision should be made to enable the new citizens, with the approval of some suitable person, to use and perhaps to exchange their lands ; and also to secure to them that necessity of civilization. — good roads.
3. The case of the Indians not covered by the severalty law should be dealt with.
4. A thorough system of compulsory education among the Indians should be adopted.
5. And finally, at least where the law is not likely to make an early ending of the reservation system, that whole accidental and outgrown scheme of non-intercourse and absolute power should be ended; and without making the Indians citizens all at once, the administration of their affairs should be carried on as that of other people’s affairs is carried on, namely, under the ordinary laws of the land, applied and administered by the authority of the general government. But as regards this last matter, it would seem wise to wait a little, until it can be seen just how, and how fast, the severalty law is likely to work. One additional thing should be mentioned. It is of the utmost importance that the general government should not lose its control over the Indian question until it really means to part with it. Now in the race for the admission of new States which appears to be impending, and which, as some persons seem to think, may end the existence of almost all our “ Territories ” within a few months, our congressmen should be held to the utmost vigilance, lest the power of the general government as regards the Indians be cut down by any artful omission or turn of phrase in the acts for admitting new States. In the several organic acts of the Territories, and partly, also, in the Revised Statutes of the United States, there are provisions protecting the Indians from territorial legislation, and reserving the full authority of the general government over them ; in some cases, there are clauses which in terms exclude the reservation from the territorial limits of the new community. This was the case, for example, in the Territories of Kansas and Nebraska, and of Colorado. What the effect of such clauses may be is shown in a very recent case in Nebraska,5 in which an act of the territorial legislature in 1855, undertaking to organize a county in an Indian reservation, was held void, after thirty years, on the ground that the reservation, although within the outside limits of the Territory, constituted no part of it, and was absolutely outside of its jurisdiction. When Kansas was admitted into the Union as a State, these same restrictions were wisely required to be continued, and they were enforced in 1866, by the Supreme Court of the United States, as against attempted legislation by that State.6 In speaking of the Shawnees, the court said, through Mr. Justice Davis : “ If the tribal organization of the Shawnees is . . . recognized by the political department of the government as existing, then they are a people distinct from others, . . . separated from the jurisdiction of Kansas, and to be governed exclusively by the government of the Union.” But in 1864 and 1875, when Nebraska and Colorado were admitted, the same care was not taken. And accordingly, in 1881, the Supreme Court had to hold that the general government had lost its jurisdiction over offenses committed on the Ute reservation in Colorado.7 Mr. Justice Gray, speaking for the court, said, after referring to the territorial restrictions : “ If this provision . . . had remained in force after Colorado became a State, this indictment might doubtless have been maintained in the Circuit Court of the United States. . . . But the act of Congress . . . for the admission of Colorado into the Union . . . contains no exception of the Ute reservation, or of jurisdiction over it. . . . The act necessarily repeals the provisions of any prior statute or of any existing treaty which are clearly inconsistent therewith.”
It is not necessary to go further with these illustrations. Enough has been said to show the danger. It behoves all who care for the right settlement of the Indian question to see to it that in admitting any new States hereafter, the power of the general government as regards the Indians should not be diminished.
James B. Thayer.
- “ The whole continent was divided and parceled out and granted by the governments of Europe as if it had been vacant and unoccupied land.’’ (Taney, C. J., in U. S. v. Rogers, 4 Howard at page 572.) For a brief statement as to the “ Indian title ” see U. S. v. Cook, 19 Wallace, 591.↩
- It is interesting to notice that these words “ citizen ” and “ citizenship,” which we use so freely and familiarly to-day as indicating membership of a self-governing State, did not have that meaning in English speech until a little more than a hundred years ago; and it is we, on this side of the water, who have given them this sense, as it is we who have given prominence to the thing for which these words now stand. The words, indeed, are very old in English usage, as one may see by his Blackstone ; but they imported merely membership of a burgh or local municipal corporation. The word “subject” was the English representative of our present term “ citizen.” Our sense of it seems to have been a Gallicism ; in French use (teste Rousseau) it was common enough to speak of one’s countrymen as citoyens and concitoyens. In the Declaration of Independence we read it once : “He has constrained our fellow-citizens,” etc. ; and once in 1781, in the Articles of Confederation. In the treaty with France of 1778, the usual phrase is “subjects,” “people,” or “ inhabitants,” but “citizens” does occur as applicable to the United States. In the treaty with Great Britain of 1782, it is used in a marked way : ‘' There shall be a . . . peace between his British majesty and the said States, and between the subjects of the one and the citizens of the other.” There was evidently felt to be an awkwardness in calling these newly emancipated republican “sovereigns” of America by the old phrase of “ subjects.” Of course, as all know, the word was freely used in the national Constitution in 1789; and so, but less freely-, in the Massachusetts constitution of 1780; but it does not occur in the rejected constitution of 1778. I believe that it is not to be found in any of the ten state constitutions that were adopted before that of Massachusetts. In the ninth decade it seems to have become a familiar phrase. There are, however, interesting little signs, in the correspondence of the period, of a certain perplexity that was felt by foreigners at our use of the word. See, for example, in 1784, John Adams’s Works, viii. 213.↩
- Rev. Stat. U. S., sec. 2312; 17 U. S. Stat. at Large, p. 631. The last reads thus: ‘‘If any adult member of said tribe shall desire to become a citizen of the United States, shall prove, by at least two competent witnesses, to the satisfaction of the Circuit, Court of the United States for the State of Kansas, that he or she is sufficiently intelligent and prudent to manage his or her own affairs, and has, for the period of five years, been able to maintain himself or herself and family, and has adopted the habits of civilized life, and shall take an oath of allegiance to the United States, as provided by law for the naturalization of aliens, he or she shall be declared, by said court to be a citizen of the United States, which shall be entered of record, and a certificate thereof given to said party. ’ ’↩
- If one were to speak with minute accuracy, he would have to except a certain amount of criminal jurisdiction in the United States, and in one or two States a claim, at least on their part to something more than that; but such laws are only enforcible by traveling to courts outside the reservation. Mention would also have to be made of the good and sensible endeavors on some reservations to administer a rude justice through the agents. But such attempts have no fixed basis of law. Indians, when off their reservation, are as fully protected by and amenable to the laws, and as fully entitled to sue in the courts, as any other class of persons who are not citizens of the United States; for example, as a newly landed Englishman or any Chinaman. The present writer may he permitted to refer to a fuller consideration of this question in the Harvard Law Review, i. 149.↩
- State v. Thayer, 35 Northwestern Reporter, 200; decided November 16, 1887.↩
- The Kansas Indians, 5 Wallace, 737.↩
- U. S. v. McBratney, 104 U. S. 621-↩