Morning journal and courier., 1885-01-27
LEGAL STATUS OF THE INDIAN

l 10 the Editor OF the JOURNAL AND COURIER:
After centuries of wrong and injustice we
are just beginning to take intelligent in
terest in the Indian, and are endeavoring to
secure for him simple justice at least. To
accomplish this an understanding of his
present anomalous and wholly inconsistent
legal position is necessary, and brief state
ment of this position of these ''wards of the
nation" (as we are so fond of calling them)
and its remedy may not be uninteresting to
your readers.
When the scattered and puny settlements
of our forefathers along the Atlantic border
first came into public relations with the abo-
rigines they necessarily treated with them as
Independent nations. This relation was nat
ural and the only feasible one, and remained
SO until after our separation from England
In blind adhesion to this precedent, how
ever, we as a nation of thirty millions of peo-
pie were still treating the comparatively in
significant remnant of three hundred thou
sand Indians within our borders as separate
and independent nationalities until 1871,
when Congress forbade further treaties, but
our contract relations have left the situation
practically unchanged. Yet we have never
accorded to them the necessary rights of
nation; we have never permitted them to
in our Supreme court as ''foreign nations"
although admitting their independent
tionality as tribes; we have never recognized
in them that first essential of nation, a
complete title to the territory they held, but
a mere title by occupancy, which might be
lost by their voluntary removal. Owing to
JoJ
as belonging to the United States, subject to
this lien of the Indians to occupy it from
time to time. This vague title was repeated
ly pronounced by our Supreme court sacred
while it lasted. tBut unfortunately, while it
right which the law recognized, it was
right which the law refused to enforce"
because the Indians We're neither citizens nor
foreign nations, and so had standing in
our courts.
In the famous case of the Cherokee Nation
vs.. Georgia it was said, ''They are domestic
dependent nations, " Cooking to our govern
ment for protection and relying on its kind
ness and power" This benefcent express
sion, notwithstanding its high source, has
had little effect in the actual treatment of
our Indians, whose long and uninterrupted
series of wrongs might well lead them to re-
gard it as the delicate irony of law.
Attorney General Gushing said, because
they are subjects they are not citizens. Nor
are they within the naturalization acts, as
these apply to foreigners under another allie
glance. No Indian is citizen by local
birth. 1t is an incapacity of his race"
From this position neither citizen or
alien, and so almost entirely beyond the pro-
lection and control of the law, have sprung
many of the difficulties of the Indian ques-
ton. To-day this absence of any well de-
fined and recognized legal status is, [ venture
to say, the chief obstacle in the way of the
advancement and ultimate civilization of the
Indian. .'He is denied fundamental rights
freely given to all other men" by our govern
ment. Secretary Schurz said, ''No Indian
has right to appear in court claiming his
own" No Indian can appear by an attorney.
The criminal jurisdiction of Federal courts
applies only where whites or other races are
concerned, under certain limitations. Crimes
committed by one Indian against another are
not punishable; with their domestic inter
nal relations the law expressly declines to in
terfere" Of civil jurisdiction there is abso-
1utely none.
While he lives on his reservation no law
protects him from murder, assault, arson or
robbery. Retaliation is his only method OF
redress.
He cannot acquire land under the law
which allows any foreigner, oftentimes of
scarcely a months residence in this country,
to gain title to the very soil the Indian and
his ancestors nave occupied from Time l1n-
memorial. No. He must live on a reserva-
ton where not even the soil he cultivates and
the rude cabin he lives in are secured to him
if the Great Father sees fit to open that res
ervation and move him to another. Moving,
always moving, is his fate. Only by aban-
doning his tribe he take government
land, and then not a citizen, but as an
alien. I must make an exception i'll the feW
cases where the right has been obtained Tor
them under treaty stipulation, but which has
only been carried into effect by pressure
from the Indian Rights association, which
has done a noble work in securing patents to
Indians entitled to them.
Can we wonder then, under these circum-
stances. that he has advanced slowly; that
as we have excluded him from the protec-
ton of the law and civilized life, he remains
lawless and revengeful? Rather is it not an
evidence of his possibilities that he has been
as amenable as he has?
The tribal authority of the chiefs has
steadily declined and our government has
furnished no substitute save the arbitrary
and ill-regulated authority of the Indian
agents.
What to do with them is the question.
Despite General Sheridans much quoted,
''The only good Indian is dead Indian we
cannot deliberately butcher them by whole
sale and SO rid ourselves of troublesome
problem. They show most unkind stub
bornness about dying out, as has so long
been predicted they would.
They must be assimilated precisely as are
the diverse elements continually curing in
upon us from all quarters. To do this, break
up their tribal relation. By preserving these
and isolating them from civilization on res
ervations we have forced them closer togeth-