A People Without Law


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

(a.) A statute of March 3, 1871, reads : “ No Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract, by treaty,” — saving, however, the obligation of previous treaties. This was enacted twenty years ago. Did it abolish the existence of these separate political powers, nations, or tribes? No, we all know that they have continued and been recognized just as before. Did it abolish the carrying on of war with the Indians? No, we remember the horrible events of last winter, and a recent judicial decision in South Dakota, that the Indian known as “ Plenty Horses” was not guilty of homicide in killing a white man during those troubles, because it was an act of war. Do we then carry on war with Indians and not make treaties with them ? Yes. A strange and absurd situation, is it not ? Yet we do make “ agreements ” with them as with a separate people ; and the chief result of this law is, and was intended to be, that it is no longer the President and Senate (the treaty-making power) that conclude these measures, but the legislative body, Congress. This statute was the result of a struggle on the part of the House of Representatives to share in these proceedings, and was forced upon the Senate on the last day of a session by putting it into an appropriation bill. It was thought at the time by so competent an observer as General Walker, formerly Commissioner of Indian Affairs, to be “ a deadly blow at the tribal autonomy ; ” and so it was, in the logic of it. But the step was not then followed up. for it did not represent any clear determination of Congress to end the old methods ; and this strange notion of refusing to make treaties with a people with whom we continue to go to war has remained on our statute book as another of the many anomalies that mark our Indian policy. Is it not plain, however, that if we abandon the policy of treaties with Indians we should give up the practice of war with them ? Our arrangements with them are now called agreements; but this gives them no added sanction ; they are still to be dealt with on the analogy of treaties.

(b.) The second statute to which I refer is that of March 3, 1885. It followed up timidly the logic of the law of 1871, though for only a step or two ; but it marked the greatest advance yet reached in the process of assuming the direct government of the Indians. The law provides that thereafter Indians should be punished for committing upon Indians or others any one of seven leading crimes (murder, manslaughter, assault with intent to kill, rape, arson, burglary, or larceny) : if in a Territory (whether on or off a reservation), under the territorial laws and in the territorial courts ; and if in a State and on a reservation, then under the same laws and in the same courts as if the act were done in a place within the exclusive jurisdiction of the United States. This is a very important statute. In principle it claims for the United States full jurisdiction over the Indians upon their reservations, whether in a State or Territory. Heretofore, the laws, for example the statute of 1817 and the renewals of it, had excepted the acts of Indians committed upon their fellows within the Indian country. The acts of Indians against white persons or of whites against Indians had been dealt with, but the internal economy of Indian government was not invaded in its dealing or refusing to deal with the relations of members of the tribe to one another. The constitutionality, even, of such legislation as this of 1885 had been denied. Judges had been careful to avoid asserting this full power in cases where the reservation was in a State. Thus the Supreme Court of the United States, in 1845, in holding good the law of 1817, which punished (in this particular case) the act of a white man against a white man in the Indian country, among the Cherokees, said : “ Where the country occupied by them is not within the limits of one of the States; Congress may by law punish any offense committed there, no matter whether the offender be a white man or an Indian.” In 1834 Mr. Justice McLean had denied the power of Congress to legislate in this way for an Indian reservation in a State, while admitting it in a Territory ; and in December, 1870, the judiciary committee of the Senate of the United States even went so far as to say, “ An act of Congress which should assume to treat the members of a tribe as subject to the municipal jurisdiction of the United States would be unconstitutional and void.” 1 But the air was at last cleared in 1886, when the Supreme Court of the United States had to deal with the indictment, under this statute, of one Indian for the murder of another Indian on a reservation in the State of California.2 It was laid down in this case, one of the landmarks of our Indian law, that the government of the United States has full power, under the Constitution, to govern the Indians as its own subjects, if it sees fit to do so, and to such partial or full extent as it sees fit; that nothing in the tribal relation or in any previous recognition of it by the United States cuts down this legislative power; that this is so not merely in the Territories, but on reservations within the States. The case, as I said, arose on a reservation in the State of California. " This proposition itself,” said the court, with no dissent, speaking through Mr. Justice Miller (that is, the proposition to punish under the laws of a Territory and by its courts a tribal Indian who commits a crime upon another tribal Indian on a reservation in a Territory), " is new in legislation of Congress. . . . The second, which applies solely to offenses . . . committed within the limits of a State and ... of a reservation, ... is a still further advance as asserting this jurisdiction over the Indians within the limits of the States of the Union. . . . After an experience of a hundred years of the treaty-making system of government, Congress has determined upon a new departure, — to govern them by acts of Congress. ... It seems to us that this is within the competency of Congress.”

Not less important than the decision itself is the principle on which it is put. In supporting the statute the government counsel had relied on the clause in the Constitution which gives Congress power to regulate commerce with . . . the Indian tribes.” But the court boldly rejected this as " a very strained construction of this clause,” and rested its decision upon no specific provision of the Constitution, but upon the just inferences to be drawn from the nature of the situation, namely, that the Indians are a decayed power, residing upon our soil and under the protection of the general government, — a people who must be governed by somebody, and whom, so long as their separate political existence is recognized by the United States, nobody but the United States has any right to govern. “ The Constitution,” says the court, “ is almost silent in regard to the relations of the government . . . to the numerous tribes of Indians within its borders. . . . While we are not able to see in either of these clauses of the Constitution ” (namely, the one relating to the basis of representation, “excluding Indians not taxed,” or the clause giving Congress power to regulate commerce with the Indian tribes) “ any delegation of power to enact a code of criminal law,. . . [yet] these Indians are within the geographical limits of the United States. The soil and the people within those limits are under the political control [either] of the government of the United States or of the States of the Union. There exist . . . but these two. The territorial governments owe all their power to the statutes of the United States. . . . [But] Congress has defined a crime committed within the State and made it punishable in the courts of the United States. . . . Congress has done it. It can do it with regard to all offenses to which the federal authority extends. . . . This is within the competency of Congress. These Indian tribes are the wards of the nation. They are . . . dependent3 on the United States, dependent largely for their daily food, dependent for their political rights. They owe no allegiance to the States and receive from them no protection. Because of the local ill feeling, the people of the States where they are found are often their deadliest enemies. From their very weakness and helplessness, so largely due to the course of dealing of the federal government with them and the treaties in which it has been promised them, arises the duty of protection, and with it the power. . . . The power of the general government ... is necessary to their protection as well as to the safety of those among whom they dwell. It must exist in that government because it never has existed anywhere else, because the theatre of its exercise is within the geographical limits of the United States, because it never has been denied, and because it alone can enforce its laws on all the tribes.”

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

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

The scheme of the act is this : Whenever the President thinks that any Indian reservation, or any part of one, is advantageous for agricultural or grazing purposes, he may cause the whole or any part of the reservation to be surveyed and allotted in severalty, in specified amounts, among all the heads of families, single persons, and orphan children of the tribe or band. The Indian heads of families may select for their children, and the Indian agents for the orphans. If in four years from the ordering of an allotment no selection is made in any given case, it may be made by an agent on the order of the Secretary of the Interior. Patents (that is, deeds) are to be issued by the Secretary of the Interior on his approval of the allotments, setting forth that the United States will hold the land in trust for the allottee for twenty-five years, and then convey in fee to him or his heirs, free of all incumbrances. Meantime the allottee cannot convey or incumber the land, and, as it seems, it is not taxable. When these allotments and patents are all made (and perhaps sooner) the Indians are said by the terms of the statute to pass at once from the jurisdiction of the United States to that of the Territory or State in which the reservation is situated, and to become at once citizens of the United States. The construction of the law is doubtful, but it is the view, I believe, of the Indian Bureau at Washington that these results happen not merely when all is done, but man by man, as each has his allotment and his patent. I venture to question the soundness of that view. This statute also provides for allotments, with like results, to tribal Indians not on reservations who may settle upon the public lands. It makes citizens at once of all Indians who leave their tribe and voluntarily live apart from it, adopting the habits of civilized life. This last class of persons had been declared by the Supreme Court of the United States, in November, 1884, not to be citizens of the United States, in the absence of such legislation. It is important, also, to notice that Indians are stimulated to take their allotments by a clause that this shall be a ground of preference in appointments on the Indian police and other public offices.

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

Now this statute puts it in the power of the President to forward rapidly the absorption of the Indians into our body politic. It does not compel him to do it. How fast he will move we cannot tell; but it is manifestly possible for him to move a great deal faster than is wise. It cannot be well to incorporate into our Western Territories and States the bulk of the Reservation Indians as citizens within any short time. Observe what Senator Dawes said at the Mohonk Conference in October, 1887, soon after the passing of this law: “ President Cleveland said that he did not intend, when he signed this bill, to apply it to more than one reservation at first, and so on, which I thought was very wise. But you see he has been led to apply it to half a dozen. The bill provides for capitalizing the remainder of the land for the benefit of the Indian, but the greed of the land-grabber is such as to press the application of this bill to the utmost. There is no danger but this will come most rapidly, —too rapidly, I think. The greed and hunger and thirst of the white man for the Indian’s land are almost equal to his ‘ hunger and thirst for righteousness.' That is going to be the difficulty in the application of this bill. He is going to press it forward too fast.” And the Senator added this advice : “ Say that no Indian shall be put upon a homestead, under this act, until he realizes what is meant by it, and until he has such material round about him as will enable him to maintain himself there, and then let him work out his own destiny.” That was wisely said.

In order to guard against this danger, there ought to be an amendment to the Severalty Law, requiring for many years to come the sort of evidence of fitness which lias heretofore been demanded in several cases of allotments authorized by treaty or special law, as in that of certain Wisconsin Indians in 1865, and certain Kansas Indians in 1873. In the last-named case the provision was this : “ 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.” This sort of provision, in the case of an adult, is a reasonable and fit one. Without it there is no sufficient assurance that the Indians will not be crowded out into the world much too fast. I notice that our excellent Indian commissioner, General Morgan, who will remain in his present office, I trust, until he is promoted to a higher one, expresses the very sensible opinion, in his last report, that the surplus land ought not to be negotiated for until the allotments are all made. Now consider what the pressure to get hold of these lands is going to be. “ The greed of the land-grabber,” like a strong mainspring, will be forever operating to secure the surplus land. If, as seems wise, the allotments must first be made, then it will he forever operating to secure allotments; and if, as the law is now interpreted, the Indians cannot have their allotments and patents without being thereby made citizens and subject to state and territorial law, the pressure of this dangerous and constant mainspring will be transferred to that point, and will be felt in a most serious way in hurrying them out from under the protection of the general government long before they should go. Consider what the condition of a vast proportion of them still is. “ I wish,” said the agent at the Santee Agency in Nebraska, in his report to the commissioner in August last, “ to impress upon the department that these Indians are yet as overgrown children. But very few of the adults are able to speak English, and during this generation will need more or less encouragement and training.” Remember the Messiah craze, and the state of advancement in civilization that it indicated. An agent on the Sac and Fox Reservation in Iowa reported to the commissioner last August: “ I have lived near these people twenty years, and I can see but very little improvement among them during that time as a whole. . . . [Their] general appearance . . .today is one of filth, ignorance, laziness, and poverty.”

Again, if it be true, as it is thought to be in some quarters (although I do not believe it), that the Indians, as fast as they get their allotments, are taken by this law wholly out from the possibility of control by such courts as may be constitutionally provided on the reservations for the tribal Indians who have not yet had allotments, then in that respect the law should be changed. They should not be so taken out. They should be held under the protection of the United States, as regulated through courts of its own upon the reservations, for a considerable period.

Still further, since the Indian land cannot be taxed for twenty-five year’s, the United States government should pay the local taxes ; otherwise these poor people, when enlarged, cannot get any proper help from the authorities of their counties or States. What an undesirable neighbor will he be who pays no taxes, and expects other people to tax themselves to support him in the matter of roads, schools, and courts ! This mischief has already been bitterly felt among the Omahas and others. Read, for instance, what the agent at the Sisseton Reservation in South Dakota says, in his report of September 29,1890, to Commissioner Morgan. He is speaking of Indians who have lately been made citizens. “ In this connection I will state that although the law of Congress and the department authorities direct these Indians to the county courts for the settlement of all minor crimes and civil cases, still it is apparent that this course at present is impracticable. The authorities of the counties decline to audit any expenses of prisoners, paupers, or litigants who hold lands under the allotment act. All the information I have upon this subject convinces me that Indians and mixed bloods who hold lands under the allotment act will not have the same privileges as the white man in the county courts. Nor will prisoners’, paupers’, and litigants’ expenses be paid.” Under the law as it now stands this result is almost unavoidable. Of course, also, education must be provided for, and we may well second and applaud the farseeing plans of General Morgan to that end. I only wish that he would insist more upon one point, namely, that no education can be better for these Indians, as a preparation for the condition of citizenship, than practice in political usages and duties,— a chance, for instance, to vote in town meeting and serve on a jury, a chance to spend their own money and earn their own living, with the ordinary security and restraints of legal obligation and legal right, the ordinary stimulus of competition, and the ordinary hope of gain. There is no education, there is no civilizing agency, so important as this for the present generation of Indians who are beyond childhood, and so for all of them as they pass that line.

While, then, this great measure, the Severalty Law, in course of time is going to put an end to the strange anomaly of the Indian situation, in that form of it which now presses upon our attention, —that is, as touching the bulk of the tribal Indians outside the so-called civilized tribes, — the process must inevitably take many years. How many ? The Commissioner of Indian Affairs informed me recently that in the four years and a half (nearly) since the Severalty Law was passed about 12,752 allotments have been made under its provisions, and about 1437 patents have been issued, — say at the average of 2800 allotments a year, and 600 patents. Patents, it will be remembered, are issued upon the approval of allotments by the Secretary of the Interior. That leaves about thirteen times as many more allotments to be made, and the time required for windingup the reservations, at that rate, would be nearly sixty years. Suppose it to be half that time, — this is quite too long to allow us to yield to the arguments of those who say : " Let the matter alone ; it is a vanishing state of things ; all will have passed away before you can mend matters.”During this process of " vanishing,” such bloody fruits of our present system are showing themselves, and will continue to show themselves, as the dreadful outbreak and slaughter of last winter. How soon we can mend matters depends on ourselves and our representatives at Washington. Matters can be mended at the next session of Congress if the people sternly demand it.

What then shall we do ? (1.) We must not leave things alone for one or two generations, to be worked out by the Severalty Law unaided. We cannot do that. See what General Morgan says of the existing system, in his last report: “ The entire system of dealing with them [the Indians] is vicious, involving as it does the installing of agents with semidespotic power over ignorant, superstitious, and helpless subjects ; the keeping of thousands of them on reservations practically as prisoners, isolated from civilized life, and dominated by fear and force ; the issue of rations and annuities, which inevitably tends to breed pauperism ; the disbursement of millions of dollars’ worth of supplies by contract, which invites fraud ; the maintenance of a system of licensed trade, which stimulates cupidity and extortion.”

If it be thought that a wise and steady administration of the present system will answer well enough, I reply that we cannot have, under such a government as ours, a steady, firm, uniform administration of the merely political sort, in the case of so complicated a matter as our Indian affairs. Good administration is the weak point in our form of government ; for the proof of that it is enough to appeal to the record of a hundred years. We may mend and patch, but the result will be bad oftener than good.

(2.) If it be said, “ Very well, let us hurry through the allotments ; let us do as was done with the slaves after the war, remove all civil disabilities at once and set up the Indians forthwith as citizens,” I have already dealt with that sort of suggestion. But let me say a word or two more. This is, indeed, the kind of short cut which suits a democratic people when it is once aroused to the necessity of having a change; then the tendency is to go straight to the mark. One reason for this is the instinctive apprehension, in such a community, of its own weakness in administering any complicated system or adhering long and steadily to a purpose. The slow method (it says to itself), the method of gradual approach, is not safe. Accordingly, we all know that this sort of swift dispatch has been urged. It is the way which preoccupied and impatient minds are apt to recommend ; and some others also. It was the one preferred by that excellent soldier and friend of the Indians, General Crook. Undoubtedly it has its advantages. To give the Indians the ballot at once would do for them what was done for the slaves ; it would put into their hands a weapon which would powerfully help them in working out their political salvation among their neighbors. Whatever temporary disturbances may take place, the ultimate result is certain, that he who has the ballot is one who will be protected from abuse. Such was General Crook’s reasoning about it.

But this course, as I have said, has insuperable objections. The great body of the tribal Indians are totally unfit for the ballot, and it would be inexcusable to force such a body of voters suddenly upon the States where they live. It was bad enough, although politically necessary, to do this sort of thing at the end of the war, in communities which had revolted, staked all upon war, and lost. It would be inexcusable to do it in the midst of a loyal population, who are entitled to have their wishes consulted by the government. And above all, it would be an abandonment by the government of its highest present duty to the red men, that of governing and sheltering them. In view of what has happened at the South with the negroes, and of the well-known local hostility to the Indians at the West, it cannot be doubted that they would suffer much. Remember that with the giving of full citizenship there would take place a loss of all power in the federal government to legislate specially for them. Nothing is clearer than that they need, and will need for a good while, the very careful and exceptional protection of the nation. The power to give this special and exceptional protection exists now, growing out of the strange political situation which I have expounded ; and it is the one best thing there is about the present state of things. We must seize upon this and use it.

(3.) How shall we use it ? That is the question that still recurs. We use our power now in dealing with the Indians by this vile process which pretends to leave them to govern themselves, and yet, in its actual application, denies them liberty and shuts them up on reservations; pauperizes them; insults and breaks down all of law, custom, and religion that they have inherited from their fathers and have been taught to venerate; excludes civilization, trade, law; and subjects them to the unsteady tyranny of the politicians. This way of using our power should be at once abandoned. But there is a wise way to use it, and I am glad to say that while Congress has lagged the Indian commissioners have made, since 1882, a slight but useful beginning in the right direction. Upon some agencies the agent is directed to appoint Indians to hear and judge the complaints of their fellows against one another, subject to the revision of the agent himself, and ultimately of the commissioner. The testimony is uniform, I think, as to the salutary and steadying effect of these “ courts.” Of course they are not courts in our ordinary sense, for they do not administer law, but merely certain rules of the Indian Department. They bear about the same relation to courts, in the proper sense of the term, that courts-martial do ; they are really a branch of the executive department. But their effect in educating the Indians and assisting the department in its heavy burden of government has been such as to point clearly to the wisdom of following up this good beginning (the suggestion of Commissioner Hiram Price, I believe) and giving the Indians real courts and real law. This is what we must do,— extend law and courts of justice to the reservations.

A simple thing, indeed, is it not? Does this seem to my reader, I wonder, as it does to me, obviously just, obviously wise, obviously expedient? Yet our legislators at Washington let it linger year after year, and we cannot get it done. We must demand of them that they no longer neglect it, — that they abandon any attitude of obstruction upon this subject, any mistaken fancy that the Severalty Law has actually done all that has been made possible by it. I express the conviction not merely of one person, but of a vast number of the friends of the Indians, in declaring that the one most pressing and vital necessity to-day, in this matter, is that of bringing the Indians and all their affairs under the steady operation of law and courts. This is saying no new thing. Many of us who had the honor of advocating the Severalty Law before it was passed always coupled it with the demand for extending law to the Indians. This necessity has long been obvious ; indeed, it sickens one to look back and see how uniform and how pressing has been the cry for this, during many years, as the thing most needful.

Let me repeat some of these utterances. Nearly twenty years ago, in 1873, the Indian, commissioner urged this matter in his report, and again, in

1874, pressed it, with careful specific recommendations for establishing a system of law among the Indians. In 1876 the Indian commissioner (J. Q. Smith) said in his annual report: “ My predecessors have frequently called attention to the startling fact that we have within our midst 275,000 people, the least intelligent portion of our population, for whom we provide no law, either for their protection or for the punishment of crime committed among themselves. . . . Our Indians are remitted by a great civilized government to the control, if control it can be called, of the rude regulations of petty ignorant tribes. Year after year we expend millions of dollars for these people, in the faint hope that, without law, we can civilize them. That hope has been to a great degree a long disappointment, and year after year we repeat the folly of the past. That the benevolent efforts and purposes of the government have proved so largely fruitless is, in my judgment, due more to its failure to make these people amenable to our laws than to any other cause, or to all other causes combined. I believe it to be the duty of Congress at once to extend over Indian reservations the jurisdiction of United States courts, and io declare that each Indian in the United States shall occupy the same relation to law that a white man does. ... I regard this suggestion as by far the most important which I have to make in this report.”

In 1877 the wise and devoted Bishop Hare said, in a passage which was quoted at length by the Indian commissioner in his report of 1883 with renewed recommendations : “ Civilization has loosened, in some places broken, the bonds which regulate and hold together Indian society in its wild state, and has failed to give the people law and officers of justice in their place. This evil still continues unabated. Women are brutally beaten and outraged; men are murdered in cold blood ; the Indians who are friendly to schools and churches are intimidated and preyed upon by the evil-disposed; children are molested on their way to school, and schools are dispersed by bands of vagabonds : but there is no redress. This accursed condition of things is an outrage upon the one Lawgiver. It is a disgrace to our land. It should make every man who sits in the national halls of legislation blush. And, wish well to the Indians as we may, and do for them what we will, the efforts of civil agents, teachers, and missionaries are like the struggles of drowning men weighted with lead as long as, by the absence of law, Indian society is left without a base.” In that same year (1877) Indian agents declared over and over again that a system of law on the reservations was the great need. “ By far the greatest need of this agency,” said one of them, “ is civil law. Give us civil law and power to execute it.” In 1878 the Indian commissioner in his report quoted Joseph, the famous and very able Nez Percé chief, as saying that “the greatest want of the Indians is a system of law by which controversies between Indians and between Indians and white men can be settled without appealing to physical force. . . . Indians . . . understand the operation of laws, and if there were any statutes the Indians would be perfectly content to place themselves in the hands of a proper tribunal, and would not take the righting of their wrongs into their own hands or retaliate, as they now do, without the law.”

How many of my readers have ever read that wonderful, most moving story of this same. Chief Joseph, sent by Bishop Hare to the North American Review, and published there in April, 1879 ? In introducing it the bishop expressed his own appreciation of it by saying, “ I wish that I had words at command in which to express adequately the interest with which I have read the extraordinary narrative which follows.” The emphasis that Joseph lays upon the need of law is striking. “ There need be no trouble,” he declares. “ Treat all men alike. Give them all the same law. Give them all an even chance to live and grow. ... I only ask of the government to be treated as all other men are treated. ... I know that my race must change. We cannot hold our own with the white race as we are. We only ask an even chance to live as other men live. . . . We ask that the same law shall work alike on all men. If the Indian breaks the law, punish him by the law. If the white man breaks the law, punish him also.” Bishop Hare enforces this request. “ Indian chiefs,” he says, “ however able and influential, are really without power, and for this reason, as well as others, the Indians „ . . should at the earliest practicable moment be given the support and protection of our government and of our law.” In March of the same year, (1879) General Miles printed an article on The Indian Problem in the North American Review, in which he pressed the need of establishing law and courts of justice among the Indians. He quoted Chief Joseph’s words that “the greatest want of the Indians is a system of law,” etc., and added, “ Do we need a savage to inform us of the necessity that has existed for a century ? ”

In 1881 General Crook, General Miles, and others, as commissioners appointed by the President to investigate certain matters relating to the Ponca tribe, closed their report as follows : “In conclusion we desire to give expression to the conviction forced upon us by our investigation of this case that it is of the utmost importance to white and red men alike that all Indians should have an opportunity of appealing to the courts for the protection and vindication of the rights of person and property. Indians cannot be expected to understand the duties of men living under the forms of civilization until they know, by being subject to it, the authority of stable law as administered by the courts, and are relieved from the uncertainties and oppression frequently attending subjection to arbitrary personal authority.”

In 1884 Miss Alice Fletcher said, in a public address wholly devoted to the need of law on the Indian reservations : “ Were the Indians as keen for crime as many believe them to be, not a human being could be safe in their midst during the present hiatus between the old tribal law and our failure to give the protection of the courts. Although matters are not at their worst, they are bad indeed, and it is almost futile to try to build up a people when the very stay and supports of industry and morality are lacking.” These remarks were accompanied by convincing illustrations of their truth drawn from her experience among the Omahas. In Miss Fletcher’s learned and thorough Special Report to the Bureau of Education on Indian Education and Civilization, published as a Senate Document by the United States in 1888 (page 142), she comments again upon “the need for recasting the entire legal position of Indians towards the state and towards each other, and of permitting the laws of the land to he fully extended over all the various reservations and tribes.”

For many years that admirable association in Philadelphia of which Mr. Herbert Welsh is secretary has urged this matter, and as early as eight or ten years ago had prepared a bill which embodied it. In a report of Mr. Herbert Welsh to his society, made in 1885, he presses (to quote his own words) “ the immediate introduction of law upon the reservations.” For years, also, the Boston Indian Citizenship Committee has devoted itself to efforts for accomplishing this purpose. In February last it issued a memorial, in which the following language was used: “ The Boston Indian Citizenship Committee, in view of recent events at the West, renews its solemn appeal to Congress and the country for the immediate extension of the ordinary laws of the land over the Indian reservations. . . . We desire to record our belief that this country has no duty towards the Indians so solemn and so instant as that of bringing these poor people under the protection and the control of the ordinary laws of the land.” Year after year the same appeal has come from the Mohonk Conference.4

So long, so uniform, so weighty, so urgent, has been this appeal for a government of law for the Indians, and yet the thing is not done. Why ? Perhaps the chief reasons are three: (1.) That there has been no one man in Congress who was deeply impressed with the importance of this particular step. Some men there appear to think the Severalty Law a finality, instead of one great step to be followed by others. (2.) That the whole Indian question gets little hold on public men, and is crowded aside by tariffs and silver and President-making and office-jobbing and pension-giving. (3.) That so far as questions of Indian policy get any attention, this is spent on matters of detail, and in administering and patching the present system. But, I may be asked, do you call all this effort for the education of the Indians and their religious teaching, and the improvement of the civil service among them, — all these things matters of detail? Well, it would be an extravagance to say that, and yet sometimes one can best convey his meaning and best intimate the truth by an extravagance. I am almost ready to answer, Yes, I do. This, at any rate, 1 will say : It is as true now as it was fifteen years ago, when Indian Commissioner J. Q. Smith put it on record in his annual report: “ That the benevolent efforts and purposes of the government have proved so largely fruitless is . . . due more to its failure to make these people amenable to our laws than to any other cause, or to all other causes combined.” It is as true to-day as it was fourteen years ago when Bishop Hare said it first, and as it was eight years ago when the Indian commissioner quoted it with approval in his annual report, and seven years ago when Miss Fletcher quoted and indorsed it, that, “ Wish well to the Indians as we may, and do for them what we will, the efforts of civil agents, teachers, and missionaries are like the struggles of drowning men weighted with lead as long as, by the absence of law, Indian society is left without a base.” It is as true now as it was thirteen years ago, when the Indian commissioner quoted it from one of the ablest of the Indian chiefs, that “ the greatest want of the Indians is a system of law by which controversies between Indians and between Indians and white men can be settled without an appeal to physical force.”

Will not my reader agree with me, then, in saying that the time has come when all causes of obstruction and delay must give way; when (1) we must find or place some men at Washington who are profoundly impressed with the necessity of a government of law for the Indians; when (2) we must cause it to be understood that this matter is no longer to be shoved aside by any question whatever; and when (3), in dealing with the Indian question, this matter of establishing law among the Indians must take precedence for the time being of all other aspects of the subject? The Indian associations of the country and all individual friends of the Indian should now gather themselves together and concentrate their efforts for a time upon this single point. They have very great influence when they unite; they can, if they please, make such an appeal to Congress and the Executive as will speedily be heeded.

Since the spring of 1888 a carefully prepared bill for accomplishing the objects I have named has been pending in the Senate of the United States. It has the support of some of the best lawyers in the country. It was prepared by a committee of the Mohonk Conference, and has been steadily supported by the leading Indian associations. That bill, or something better, should be passed at the next session of Congress.

James Bradley Thayer.

  1. Walker, The Indian Question, 125.
  2. United States υ. Kagama, 118 U. S., 375.
  3. The italics are those of the court. There is a tacit reference to the famous phrases of an earlier opinion.
  4. And, finally, since this article was written, the American Bar Association, after listening to a valuable paper on this subject by Mr. William B. Hornblower, of New York, and after a debate in which the leaders of that body participated, on August 20 last unanimously resolved : " It is the opinion of this association that the United States should provide, at the earliest possible moment, courts and a system of law for the Indian reservations.”