FOREWORD

There are few subjects in the history and law of the United States on which public views are more dramat-
ically and flagrantly erroneous than on the subject of Indian affairs. According to the popular view, the Indian
is a vanishing race; his lands are steadily dwindling; restricted as to the hunt and denied the warpath, he has
nothing to live for and nothing to contribute to our civilization; he is not entitled to the rights of citizenship;
he subsists on "rations"; and he cannot sign his name without the approval of a reservation superintendent.

The facts are very different. Indians today are probably the most rapidly increasing racial group in our
population; the total area of Indian lands has been increasing slowly but steadily for nearly 5 years; the Indian
today is making significant and vital contributions to American art and craftsmanship, and to our knowledge
and enjoyment of the resources of forests, plains, streams, and trails that were here long before white immigrants
came; all native Indians today are citizens, entitled to all of the rights and bound by all of the obligations of
citizenship; if some of them still have equitable interests in property which they cannot alienate, they share
this disability, or advantage, with a large number of their non-Indian fellow citizens.

That Indians have legal rights is a matter of little practical consequence unless the Indians themselves
and those who deal with them are aware of those rights. Such, however, is the complexity of the body of Indian
law, based upon more than 4,000 treaties and statutes and upon thousands of judicial decisions and administrative
rulings, rendered during a century and a half, that one can well understand the vast ignorance of the subject
that prevails even in ordinarily well informed quarters. For more than a century, commissioners of Indian
affairs have appealed for aid in reducing this unmanageable mass of materials to some orderly form. Yet during
that period none of the attempts to compile a simple manual of the subject was carried to completion.

Ignorance of one's legal rights is always the handmaid of despotism. This Handbook of Federal Indian Law should give to Indians useful weapons in the continual struggle that every minority must wage to maintain its liberties, and at the same time it should give to those who deal with Indians, whether on behalf of the federal or state governments or as private individuals, the understanding which may prevent oppression.

It is entirely fitting that this contribution to the enlightenment of administrators and Indians should have
been made under the leadership of one who has striven valiantly to free our national relations with the Indian
tribes from the despotic traces of less tolerant epochs. On April 28, 1934, President Franklin D. Roosevelt,
in urging the passage of the Wheeler-Howard Act, which, with its recent extensions to Oklahoma and Alaska,
stands today as the most important segment of our Indian law, declared:

> The Wheeler-Howard bill embodies the basic and broad principles of the administration for a new
> standard of dealing between the Federal Government and its Indian wards.

> It is, in the main, a measure of justice that is long overdue.

> We can and should, without further delay, extend to the Indian the fundamental rights of political
> liberty and local self-government and the opportunities of education and economic assistance that they
> require in order to attain a wholesome American life. This is but the obligation of honor of a powerful
> nation toward a people living among us and dependent upon our protection.

> Certainly the continuance of autocratic rule, by a Federal department, over the lives of more than
> 200,000 citizens of this Nation is incompatible with American ideals of liberty. It also is destructive of
> the character and self-respect of a great race.

> The continued application of the allotment laws, under which Indian wards have lost more than two-
> thirds of their reservation lands, while the costs of Federal administration of these lands have steadily
> mounted, must be terminated.

> Indians throughout the country have been stirred to a new hope. They say they stand at the end
> of the old trail. Certainly, the figures of impoverishment and disease point to their impending extinction,
> as a race, unless basic changes in their conditions of life are effected.

> I do not think such changes can be devised and carried out without the active cooperation of the In-
> dians themselves.

> The Wheeler-Howard bill offers the basis for such cooperation. It allows the Indian people to take
> an active and responsible part in the solution of their own problems.

V

VI

FOREWORD

This Handbook of Federal Indian Law will constitute, I believe, a lasting contribution towards the ideals thus enunciated.

This work cannot have the legal force of an act of Congress or the decision of a court. Whatever legal force it will have must be derived from the original authorities which have been assiduously gathered and patiently analyzed. In publishing this work the Department of the Interior does not assume responsibility for every generalization, prediction, or inference that may be found in the volume. What is implicit, however, in the fact of publication is a considered judgment that this volume will prove a valuable aid in fulfilling the obligation which Congress has laid upon the Department of the Interior to protect and safeguard the rights of our oldest national minority.

The labors which Solicitor Nathan R. Margold, Assistant Solicitor Felix S. Cohen, and their aides and collaborators have devoted to this pioneer work will be appreciated, not only by those Indians and Indian Service administrators whose needs it most directly serves, but by all of us who hold dear the civilized ideals of liberty and tolerance.

(Signed) HAROLD L. ICKES.

JULY 9, 1940,

# INTRODUCTION

## 1. THE BACKGROUND OF FEDERAL INDIAN LAW

We in this country are slowly learning to appreciate the significance of the problem of Indian rights for the cause of democracy here in the United States and throughout the Western Hemisphere. Over the radio, a few months ago, came the words of a man who knows more than any one else in the world about Indians as human beings. His words are a better introduction to the Indian problem than I can write.

What sort of treatment dominant groups give to subject groups—how governments treat minorities—and how big countries treat little countries: This is a subject that comes down the centuries, and never was it a more burning subject than in this year 1939—even in this month, December 1939.

So the question: How has our own country treated its oldest and most persisting minority, the Indians; how has it treated them, and how is it treating them now? This is an important question. I believe that nearly all Americans realize the importance of this question. Many millions of our citizens feel an interest, curious and sympathetic and sometimes enthusiastic, in our Indian minority.

What I shall describe will be a bad beginning which lasted a long time, which broke Indian hearts for generation after generation, which inflicted destructions that no future time can wholly repair. Then I shall describe how the long-lasting bad record was changed to something good; how, although the change came so late, it did not come too late; how when the change came, it still found hundreds of Indian tribes ready to respond to the opportunity which at last had been given them. I shall describe how the good change has developed across three Presidencies, so that it is not an achievement or program of a single political party. But I shall describe, too, the decisive and immense good change which has come under President Franklin D. Roosevelt and Secretary of the Interior, Harold L. Ickes.¹

I shall not quote the main body of Commissioner Collier's speech, for that reappears, amplified and developed somewhat, in the pages that follow. I quote, again, only his final words:

> No, the task is not finished. It is only well begun. But one part of the task is finished, and it marks and makes an epoch. The repressions which crushed the Indian spirit have been lifted away. From out of an ancient and dark prison house the living Indian has burst into the light, into the living sunlight and the future. All of his age-tempered powers and his age-tried discipline are still there. He knows that the future is his; and that the century of dishonor, for him, is ended.

> But he needs our continuing help, and our nation's debt to him is not yet paid.

The thing we have started to do, and with your help, you citizens of our country, will continue to do, is to aid the Indian work out his own destiny. We have helped him to retain and to rebuild the richness of his own national life, and in doing this we think we have enriched the national life, the national heritage and the national honor of 130,000,000 Americans. This is the way the democracy of the United States is solving the minority problem of its first Americans.

Let me carry your thought beyond our own national borders. Our Indians are a tiny, though now a growing minority. But south of the Rio Grande, the Indians number not hundreds of thousands, but millions. Pure-blooded Indians are the major population in Mexico, in Guatemala, Honduras, Peru, Ecuador. There are thirty million Indians—one growing race, and one of the world's great races. And that race is marching toward power. It may be that the most dependable guarantee of the survival and triumph of real democracy in our hemisphere, south of the Rio Grande, is this advance toward power of the Indians, who from most ancient times, and now, are believers in, and practicers of local democracy.

What we are doing—what with your help we shall do—to meet our own Indian minority problem has a deep significance to these 30,000,000 other Indians, and to all the countries where they are located. Here we enter within the battleground and effort-ground of our Western Hemisphere destiny. It is upon this scale of two continents, and of a democracy defended and increased through at least one-half of our globe, that world-history will view our own record with our Indian minority.

¹ "America's Handling of its Indigenous Indian Minority," an address by John Collier, Dec. 4, 1939, 7 Indians at Work, No. 5, pp. 11, 16.

VII

VIII

INTRODUCTION

Against this background of history and of struggle and hope, the federal law governing Indian affairs may be viewed not, as it has too often been viewed, as a curious collection of anachronisms and mysteries, but rather as a revealing record in the development of our American constitutional democracy. The decline of dictatorship in the Indian country is fresh enough in our national memory so that we may perhaps profit from an analysis of weaknesses that dictatorial bluster ever seeks to conceal, and from an understanding of the ways in which the forms and forces of democracy have, in this small sector of an endless battle line, won victory.

## 2. THE BASIS OF FEDERAL INDIAN LAW

For more than a century, Supreme Court Justices, Attorneys General, and Commissioners of Indian Affairs have commented on the intricate complexity and peculiarity of federal Indian law. Yet until now no writer has attempted to gather into a single work these intricacies. The reason may perhaps best be appreciated by those who have attempted that task. The federal law governing Indians is a mass of statutes, treaties, and judicial and administrative rulings, that includes practically all the fields of law known to textbook writers—the law of real property, contracts, corporations, torts, domestic relations, procedure, criminal law, federal jurisdiction, constitutional law, conflict of laws, and international law. And in each of these fields the fact that Indians are involved gives the basic doctrines and concepts of the field a new quirk which sometimes carries unpredictable consequences.

To survey a field which includes, for instance, more than four thousand distinct statutory enactments, one must generalize. And generalization on the subject of Indian law is peculiarly dangerous.

For about a century the United States dealt separately with the various Indian tribes and the legal rights of the members of each tribe were fixed by treaty.² These treaties are for the most part still in force and of recognized validity. In them one finds reflected the very wide pre-Columbian divergencies that existed, for instance, between the great agricultural towns and confederacies of the Southeast and the loosely organized nomadic hunters of the Plains area, or between the small fish-eating, slave-owning bands of the Northwest Coast and the great constitutional democracy that was the League of the Iroquois.

When Congress in 1871 enacted a law³ prohibiting further treaty making with the Indian tribes, the form of governmental dealing with the Indians was changed, but the essential character of those dealings was not modified. Congress continued to deal with the Indian tribes, in large measure, through "agreements," ratified by both Houses of Congress, which do not differ from treaties in legal effect. The only substantial change accomplished by the law of 1871 was that whereas Indian treaties were submitted for the ratification of the Senate alone, as the Constitution of the United States provides,⁴ agreements are ratified by the action of both Houses, and thus the House of Representatives, which had long been excluded from equal participation in Indian affairs, has achieved an equal status with the Senate in that field. Apart from treaties and agreements with particular tribes, the dealings of the Federal Government with the Indians have been predominantly by way of special statutes applying to named tribes, and, most recently, by way of tribal constitutions and tribal charters, all varying very considerably among the different tribes. Until the last years of the nineteenth century there was very little general legislation applying a uniform pattern to all tribes, and what little there was usually turns out, on analysis, to be in the nature of generalization from provisions that had appeared in several treaties.

During what may be roughly defined as the allotment period—from 1887, when the General Allotment law⁵ was passed, to 1933, when the process of allotment came to an end—there developed a tendency to impose upon all Indian tribes a uniform pattern of general laws and general regulations. This tendency was commonly justified in terms of administrative efficiency and economy, and to this justification there was sometimes added the thought that Indian treaties, special statutes, and regional differences were all outworn relics which had to be sacrificed in the march of national progress. The effect, however, of ignoring the special rights conferred on individual tribes by treaty and statute and ignoring the political autonomy and cultural diversity of the tribes was to cause tremendous and widespread resentment among the Indians. The Indians found Indian and white champions. Protest against mistreatment of the Indian led to many investigations. A survey was conducted by the Institute for Government Research at the request of Secretary of Interior Work. The results of this study, published in 1928 under the title: "The Problem of Indian Administration," gave direction

¹ See Chapter 3, for an analysis of these treaties.

² Act of March 3, 1871, 16 Stat. 544, 566, R. S. § 2079, 25 U. S. C. 71.

³ Article II, sec. 2.

⁴ Act of February 8, 1887, 24 Stat. 388, 25 U. S. C. 331 et seq.

INTRODUCTION

IX

for more than a decade to Indian reform. On February 1, 1928, the Senate authorized its Committee on Indian Affairs to carry out an intensive survey of the condition of the Indians in the United States.⁶

These investigations have brought to light many of the evils resulting from attempts to impose a uniform pattern of treatment upon groups with different wants, and thus have strengthened the tendency towards special consideration of the legal problems of particular tribes. The policy of superseding the old pattern of uniformity and absolutism found expression in the Wheeler-Howard (Indian Reorganization) Act. Pursuant to this law, approved on June 18, 1934,⁷ more than a hundred tribes in the United States adopted their own constitutions for self-government.⁸ Practically all the regulations of the Indian Service have now been made subject to modifications for particular tribes through the provisions of these tribal constitutions and tribal ordinances.

These considerations indicate that a work on federal Indian law must deal with law made for, and in large part by, diverse groups with divergent economic interests, political institutions, and levels of cultural attainment.

Anyone who has worked in the field of Indian litigation is frequently asked by otherwise well informed people whether he understands "the Indian language." There are, in fact, more than 200 different Indian languages, some of them as distinct from each other as English and Chinese. This linguistic diversity is par- alleled by diversities in the conditions and legal problems of more than 200 different Indian reservations.

Common opinion pictures the original American dressed in feathers and wampum, his belt adorned with scalps, mounted on a horse, gazing after buffalo. This picture blurs over the fact that many Indians, before white contact, were farmers and fishermen who had never seen feather head-dresses, wampum, scalps, or buffalo, that no Indian ever rode a horse before the Spaniards brought horses into North America, and that the special combination of striking Indian peculiarities which the modern "circus Indian" embodies did not exist before the rise of modern American showmanship.

Just as the popular picture of the Indian embodies a false juxtaposition of traits, so the popular view of Indian law embodies a false juxtaposition of ideas.

The popular view of the Indian's legal status proceeds from the assumption that the Indian is a ward of the Government, and not a citizen, that therefore he cannot make contracts without Indian Bureau approval, that he holds land in common under "Indian title," that he is entitled to education in federal schools when he is young, to rations when he is hungry, and to the rights of American citizenship when he abandons his tribal relations.

This is, on the whole, a thoroughly false picture, although historical exemplification may be found for each feature.

It would be absurd to set up in place of this false and oversimplified picture of federal Indian law any other equally simple picture. It may be worth while, however, to set forth certain hypotheses concerning the recur- rent patterns of federal Indian law, which will be tested against decisions, statutes, and treaties in the pages that follow. These hypotheses may be conveniently grouped under four leading principles: (1) The principle of the political equality of races; (2) the principle of tribal self-government; (3) the principle of federal sovereignty in Indian affairs; and (4) the principle of governmental protection of Indians.

⁶ Whereas there are two hundred and twenty-five thousand Indians presently under the control of the Bureau of Indian Affairs, who are, in contemplation of law, citizens of the United States but who are in fact treated as wards of the Government and are prevented from the enjoyment of the free and independent use of property and of liberty of contract with respect thereto; and

Whereas the Bureau of Indian Affairs handles, leases, and sells Indian property of great value, and disposes of funds which amount to many millions of dollars annually without responsibility to civil courts and without effective responsibility to Congress; and

Whereas it is claimed that the control by the Bureau of Indian Affairs of the persons and property of Indians is preventing them from accommodating themselves to the conditions and requirements of modern life and from exercising that liberty with respect to their own affairs without which they can not develop into self-reliant, free, and independent citizens and have the rights which belong generally to citizens of the United States; and

Whereas numerous complaints have been made by responsible persons and organizations charging improper and improvident administration of Indian property by the Bureau of Indian Affairs; and

Whereas it is claimed that preventable diseases are widespread among the Indian population, that the death rate among them is not only unreasonably high but is increasing, and that the Indians in many localities are becoming pauperized; and

Whereas the acts of Congress passed in the last hundred years having as their objective the civilization of the Indian tribes seem to have failed to accomplish the results anticipated; and

Whereas it is expedient that said acts of Congress and the Indian policy incorporated in said acts be examined and the administration and operation of the same as affecting the condition of the Indian population be surveyed and appraised: Now, therefore, be it

*Resolved,* That the Committee on Indian Affairs of the Senate is authorized and directed to make a general survey of the conditions of the Indians and of the operation and effect of the laws which Congress has passed for the civilization and protection of the Indian tribes; to investigate the relation of the Bureau of Indian Affairs to the persons and property of Indians and the effect of the acts, regulations, and administration of said bureau upon the health, improvement, and welfare of the Indians; and to report its findings in the premises, together with recommendations for the correction of abuses that may be found to exist, and for such changes in the law as will promote the security, economic competence, and progress of the Indians.

Said committee is authorized to send for persons, books, and papers, to administer oaths, to employ such clerical assistance as is necessary, to sit during any recess of the Senate, and at such places as it may deem advisable. Any subcommittee, duly authorized thereto, shall have the powers conferred upon the committee by this resolution.

The expenses of said investigation shall be paid out by the contingent fund of the Senate and shall not exceed $30,000.

(S. Res. 79, 70th Cong., 1st sess.).

¹ 48 Stat. 984, 25 U. S. C. 461 et seq. For subsequent amendments and extensions, see Chapter 7.

⁸ See Chapter 7.

X

# INTRODUCTION

## A. POLITICAL EQUALITY

The right to be immune from racial discrimination by governmental agencies is an essential part of the fabric of democratic government in the United States. In part, this right is constitutionally affirmed by the fifth, fourteenth, and fifteenth amendments to the Federal Constitution; in part, the right is embodied in statutes providing penalties for racial discrimination by agencies of Federal and State Government; and, in part, the right is no more than a moral right implicit in the character of democratic government but not always protected by adequate legal machinery.

Despite a widely prevalent impression to the contrary, all Indians born in the United States are citizens of the United States and of the state in which they reside.⁹ As citizens they are entitled to the rights of suffrage guaranteed by the fifteenth amendment,¹⁰ and they are likewise entitled to hold public office,¹¹ to sue,¹² to make contracts,¹³ and to enjoy all the civil liberties guaranteed to their fellow citizens.¹⁴ These rights take on a special significance against the background of highly organized administrative control. They indicate that a body of federal Indian law, considered as "racial law," would be as much an anomaly as a body of federal law for persons of Teutonic descent, and that the existence of federal Indian law can be neither justified nor understood except in terms of the existence of Indian tribes.

## B. TRIBAL SELF-GOVERNMENT

The principle that an Indian tribe is a political body with powers of self-government was first clearly enunciated by Chief Justice Marshall in the case of Worcester v. Georgia.¹⁵ Indian tribes or nations, he declared,

* * * had always been considered as distinct, independent, political communities, retaining their original natural rights, * * *. (P. 559.)

To this situation was applied the accepted rule of international law:

* * * the settled doctrine of the law of nations is, that a weaker power does not surrender its independence—its right to self-government—by associating with a stronger, and taking its protection. (P. 560.)

From these premises the courts have concluded that Indian tribes have all the powers of self-government of any sovereignty except insofar as those powers have been modified or repealed by act of Congress or treaty. Hence over large fields of criminal and civil law, and particularly over questions of tribal membership, inheritance, tribal taxation, tribal property, domestic relations, and the form of tribal government, the laws, customs, and decisions of the proper tribal governing authorities have, to this day, the force of law.¹⁶

## C. FEDERAL SOVEREIGNTY

The doctrine that Indian affairs are subject to the control of the Federal Government, rather than that of the states, derives from two legal sources.¹⁷ In the first place, the Federal Constitution expressly conferred upon the Congress of the United States the power "to regulate commerce with the Indian tribes."¹⁸ Matters internal to the tribe itself even to this day have been left largely in the hands of tribal governments. Federal power has generally been invoked in matters arising out of commerce with the Indian tribes, in the broad sense in which that phrase has been used to include all transactions by which Indians sought to dispose of land or other property in exchange for money, liquor, munitions or other products of the white man's civilization. The growth of the commerce clause has meant the expansion of federal power in Indian affairs, at the expense of state power.

Supplementary to the express constitutional power over commerce with the Indian tribes which was conferred upon Congress, the Federal Government was constitutionally endowed with plenary power over the making of treaties. Since the Federal Government had made several treaties with Indian tribes prior to the adoption of the Constitution in 1787, and continued to make such treaties for more than eight decades thereafter, the growth of federal power over Indian relations, at the expense of all claims of state power, was continuous and unchecked during the period in which the outlines of our present law of Indian affairs were established.

⁹ See Chapter 8, sec. 2.

¹⁰ See Chapter 8, sec. 3.

¹¹ See Chapter 8, sec. 4.

¹² See Chapter 8, sec. 6.

¹³ See Chapter 8, sec. 7.

¹⁴ See Chapter 8, sec. 10.

¹⁵ 6 Pet. 51 (1832).

¹⁶ See Chapter 7.

¹⁷ See Chapter 5.

¹⁸ Art. I, sec. 8.

INTRODUCTION

XI

At the present time it may be laid down as a rough general rule that Indians on an Indian reservation are not subject to state law. This exemption is of particular importance in the fields of criminal law and taxation. The general rule has been modified in a few particulars by congressional action conferring upon the state specific power over certain subjects. Perhaps the most important of these laws delegating power to the states is the General Allotment Act,¹⁹ which provides that, when tribal lands have been individualized, the individual parcels shall be inherited in accordance with the laws of the state. Another important exception to the general rule of federal sovereignty exists in the case of Oklahoma, where very extensive powers over Indians have been conferred upon the government of the state.²⁰ In both of these cases, as well as in various other matters, the power of the state is defined by federal legislation.²¹

## D. GOVERNMENTAL PROTECTION OF INDIANS

Most of the legislation of the United States with respect to Indian affairs is subject to a dual interpretation. To the cynic such legislation may frequently appear as a mechanism for the orderly plundering of the Indian. To these more charitably inclined, the Government has appeared as the protector of the Indians against individuals who wished to separate the Indian from his possessions. Without attempting to anticipate the judgment that history will render on this conflict of doctrine, it may be said that at least the theory of American law governing Indian affairs has always been that the Government owed a duty of protection to the Indian in his relations with non-Indians. As was said by the Supreme Court of the United States in the case of *United States v. Kagama*²²

> Because of the local ill feeling, the people of the States where they [the Indian tribes] 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, there arises the duty of protection, and with it the power. This has always been recognized by the Executive and by Congress, and by this court, whenever the question has arisen. (P. 384.)

As a practical matter the individuals against whom the Indian needed the most vigorous kind of protection were the trader and the settler. Both wanted Indian land. The trader also wanted furs. The trader offered directly or indirectly, in exchange for land or furs, kettles, knives, clothing, liquor, firearms, ammunition, and other commodities. Some of these commodities were unknown in the pre-Columbian cultures, and the tribes had developed no adequate social controls over their use; the byproducts of this trade were disease, violence and, in many cases, the destruction of the game on which the Indians had subsisted. The settler wanted Indian land. Often he offered, in exchange for the land, the trader's goods; often he took the land without offering any quid pro quo. This intercourse between Indians and whites threatened the decimation of Indians through violence, disease, and starvation and imposed upon the Federal Government a tremendous cost for military protection of the white frontier families against the not always discriminating retaliation of the despoiled natives. The effort to control this intercourse was the guiding motif of federal Indian legislation down to our own generation.

Thus the problems of federal Indian law have been primarily the problems of (1) the regulation of Indian traders, (2) controlling the disposition of Indian land, (3) the protection of that land against trespass, and (4) the control of the liquor traffic. A few words on each of these four points may suggest the general contours of our federal law on Indian affairs.

(1) In 1790 the Federal Congress adopted the policy of regulating trade with the Indians through a system of licensing traders.²³ Except for a brief period, from 1796 to 1822, when a system of Government trading houses was maintained, the principle of control of Indian trade through licenses has been in force. Under this system federal supervision of the character and quality of goods sold and prices charged has been possible. Sales of liquor, and of firearms and ammunition not needed for useful purposes, have been banned. The system depended very largely for its effectiveness upon the isolation of the Indian groups affected, and in recent years the growth of towns and cities upon or near various Indian reservations and the development of mail-order trade have introduced elements of uncertainty into the question of the present efficacy and future development of our federal control over Indian trade.

¹⁹ Act of February 8, 1887, 24 Stet. 388, 25 U. S. C. 331 et seq. See Chapter 11.

²⁰ See Chapter 24.

²¹ See Chapter 6.

²² 118 U. S. 375, 384 (1886). The comma after "them" in the fifth line of the quotation appears in the Supreme Court Reporter edition but not in the U. S. Reports edition. It is essential to the sense of the passage.

²³ See Chapter 17.

XII

INTRODUCTION

(2) The problem of federal control over the disposition of Indian lands becomes a very esoteric legal problem if pursued into the mysteries which have been created by those who sought to deduce specific limitations upon Indian land sales from the inherent attributes of the general concept of "Indian title." The notion of "Indian title," as a supposed special form of tenure involving rights of possession but no right of alienation, is a notion that depends upon certain feudal doctrines of sovereignty, dominion, and seizin, on which endless controversy is possible. The subject, however, loses much of its mystery if the sale of land be viewed against the background of federal control over other types of Indian trade. The fact is that, while recognizing that the Indian tribes owned lands in their possession and had the right to dispose of them the Federal Government has always circumscribed such disposition by means of laws prescribing the manner and terms upon which Indian land may be alienated.²⁴ The economic significance of this control is apparent in the following statement of the United States Supreme Court:²⁵

> The Indian right to the lands as property, was not merely of possession; that of alienation was concomitant; both were equally secured, protected and guaranteed by Great Britain and Spain, subject only to ratification and confirmation by the license, charter or deed from the governor representing the king. Such purchases enabled the Indians to pay their debts, compensate for their depredations on the traders resident among them, to provide for their wants; while they were available to the purchasers as payment of the considerations which at their expense had been received by the Indians. It would have been a violation of the faith of the government to both, to encourage traders to settle in the province, to put themselves and property in the power of the Indians, to suffer the latter to contract debts, and when willing to pay them by title only means in their power, a cession of their lands, withhold an assent to the purchase, which, by their laws or municipal regulations, was necessary to vest a title. (Pp. 758-759.)

The first Indian Intercourse Act²⁶ provided that all alienations of Indian land should be made "at some public treaty held under the authority of the United States." In the land sales that were made by treaty the United States was generally the purchaser, but in a few cases States or private individuals were designated as purchasers of the land sold.

Apart from treaties, a series of special statutes, generally but not always dependent upon the consent of the Indians concerned, provided for the sale of Indian lands. Other statutes, general as well as special, have provided for the leasing, by the Indians or by the Secretary of the Interior on their behalf, of Indian lands and minerals and the sale of Indian-owned timber.²⁷ Legislation authorizing the allotment of tribal lands, and supplementary laws dealing with such allotments, have provided for the sale or lease of allotted lands, under various degrees of federal administrative supervision.²⁸

By maintaining its control over the transactions by which Indians dispose of land, the United States has been able to establish a degree of control over the moneys or other *quid pro quo* received by the Indians in connection with such disposition.²⁹ Thus various types of tribal and individual funds, generally representing returns from the disposition of Indian land and subject to federal control, have been established, and a good deal of the attention which Congress and the Interior Department have given to the Indian problem has been directed to the proper use of this money. Part of this vast fund, obtained from the disposition of Indian natural resources, has been used for the administration of education, health, and other public services on the Indian reservations; part of it has been distributed to the Indians in per capita payments, and part has been utilized, with or without the consent of the Indians, for expenses of government administration on the reservations. The various service functions of the Indian Service which have developed out of the administration of these funds must be left for later treatment.³⁰ It is enough for our present purposes to note that the principle of federal protection of the Indian, applied specifically to Indian lands, continued to exert its force beyond the transaction of Indian land sale, and that by virtue of this principle federal control came to be extended over almost the entire economic life of the Indian.

(3) The protection of Indian land against trespass was one of the first responsibilities assumed by the Federa
Government. The promise of such protection for lands retained by the Indian tribes was an important *quid
pro quo* in the process of treaty-making by which the United States acquired a vast public domain.³¹ This

²⁴ See Chapter 13.

²⁵ Mitchell v. United States, 9 Pet. 711, 758-759 (1835). And see Chapter 15, sec. 18.

²⁶ Act of July 22, 1790, 1 Stat. 137.

²⁷ See Chapter 15.

²⁸ See Chapters 9, 11.

²⁹ See Chapter 10.

³⁰ See Chapter 12.

³¹ See Chapter 3.

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XIII

promise of protection was sometimes backed up by a treaty provision declaring that trespassers put themselves outside the protection of the Federal Government, and might be dealt with by the tribes themselves according to their own laws and customs.

It is characteristic of the piecemeal approach characterizing federal legislation on Indian affairs that despite the importance of the subject of trespass upon Indian lands no general legislation on the subject has ever been enacted. Apart from the various treaty provisions with particular tribes, there are separate laws dealing with trespass by unlicensed traders, by horse thieves, and other criminals or would-be criminals, by settlers, by persons driving livestock to graze on Indian lands, and by hunters and trappers.32 But there is to this day no general law which can be invoked against those trespassers whose occupation Congress has not foreseen. Ordinarily civil actions have been brought by, or on behalf of, Indians and Indian tribes to protect Indian lands against trespass, but Indian unfamiliarity with legal procedure has often rendered this remedy ineffective. In recent years the Federal Government has devoted considerable attention to litigation for the protection of Indian lands against trespass. The right of the Federal Government to bring such suits has been justified either on the theory that title to the lands rested with the Federal Government or on the more general theory that the Federal Government has a special obligation, as guardian of the Indians, to protect their lands against trespass even where full title in fee simple is held by the Indian tribe.33 It is pertinent to note, finally, that the federal protection of Indian lands against trespass by State authorities has given rise to the established doctrine that such lands are not subject to State land taxes.34 This doctrine has been invoked, in turn, by state authorities as a reason for not rendering to reservation Indians various public services that are rendered to other citizens of the state, e. g. public education.35

(4) In the belief that a great deal of Indian disorder was the result of traffic in intoxicants, Congress early established a total prohibition law for the Indian country.36 This law has been maintained in force continuously for more than a century. The breaking down of early conditions of isolation has made the enforcement of this legislation an increasingly difficult problem.

## E. SUMMARY

In each of the foregoing four fields of legislation the principle of federal protection of the Indians has been carried into effect by means of some type of federal control over transactions between Indians and non-Indians, whether through complete prohibition, licensing, or the prescribing of conditions governing particular transactions. It is fair to say that historically and logically federal control over transactions of these four types is at the root of the entire body of federal legislation on Indian affairs. Thus this tremendous and unwieldy mass of legislation, comprising more than 4,300 distinct enactments, may be viewed in its entirety as the concrete content of the abstract principle of federal protection of the Indian.

In terms, this principle, an offspring of the more general one of federal sovereignty over Indian affairs, is entirely consistent with the principles of racial equality and of tribal self-government in matters internal to the tribe. In practice, however, the unsolved problems of our federal law in the field of Indian affairs all deal fundamentally with the demarcation of domain among these independent competing principles.

## 3. METHOD OF TREATMENT

This handbook does not purport to be a cyclopedia. It does not attempt to say the last word on the varied legal problems which it treats. If one who seeks to track down a point of federal Indian law finds in this volume relevant background, general perspective, and useful leads to the authorities, the handbook will have served the purpose for which it was written. More than this might have been done if it had been possible to carry through the work on the scale in which it was originally planned by Assistant Attorney General McFarland.

The method of this handbook is dictated by its subject matter. Federal Indian law is a subject that cannot be understood if the historical dimension of existing law is ignored. As I have elsewhere observed,37 the groups of human beings with whom Federal Indian law is immediately concerned have undergone, in the century and a half of our national existence, changes in living habits, institutions, needs and aspirations far greater than the changes that separate from our own age the ages for which Hammurabi, Moses, Lycurgus, or Justinian legislated.

32 See Act of July 22, 1790, 1 Stat. 137; Act of March 1, 1793, 1 Stat. 329; Act of May 19, 1796, 1 Stat. 469; Act of March 3, 1799, 1 Stat. 743; Act of March 30, 1802, 2 Stat 139; Act of June 30, 1834, 4 Stat. 729.

33 See Chapter 15, sec. 10D.

34 The New York Indians, 5 Wall. 761 (1866). And see Chapter 13.

35 See Chapter 6.

36 See Chapter 18.

37 U. S. Department of the Interior, Office of the Solicitor, Statutory Compilation of the Indian Law Survey: A Compendium of Federal Laws and Treaties Relating to Indians, edited by Felix S. Cohen, Chief, Indian Law Survey, with a Foreword by Nathan R. Margold, Solicitor, Department of the Interior (1940, 46 vols.) vol. 1, pp. ii-iii.

XIV

INTRODUCTION

Telescoped into a century and a half, one may find changes in social, political, and property relations which stretch over more than 30 centuries of European civilization. The toughness of law which keeps it from changing as rapidly as social conditions change in our national life is, of course, much more serious where the rate of social change is 20 times as rapid. Thus, if the laws governing Indian affairs are viewed as lawyers generally view existing law, without reference to the varying times in which particular provisions were enacted, the body of the law thus viewed is a mystifying collection of inconsistencies and anachronisms. To recognize the different dates at which various provisions were enacted is the first step towards order and sanity in this field.

Not only is it important to recognize the temporal "depth" of existing legislation, it is also important to appreciate the past existence of legislation which has, technically, ceased to exist. For there is a very real sense in which it can be said that no provision of law is ever completely wiped out. This is particularly true in the field of Indian law. At every session of the Supreme Court, there arise cases in which the validity of a present claim depends upon the question: "What was the law on such and such a point in some earlier period?" Laws long repealed have served to create legal rights which endure and which can be understood only by reference to the repealed legislation. Thus, in seeking a complete answer to various questions of Indian law, one finds that he cannot rest with a collection of laws "still in force," but must constantly recur to legislation that has been repealed, amended, or superseded.

Important, however, as is the historical factor in the understanding of federal Indian law, a mere chronology of laws and decisions would be of little value. Systematic analysis is needed, the more so because no treatise has ever been written on the subject of federal Indian law. Indeed the subject hardly exists, as yet, except in a mass of rules and laws relating to a single subject matter. Unfortunately relation to a single subject matter is not enough to establish systematic interconnections among the rules and statutes so related. This any lawyer can see for himself by referring to treatises on "the law of horses" or "the law of fire engines." Federal Indian law does exhibit a systematic interconnectedness of parts, but to discover and define the common standards, principles, concepts, and modes of analysis that run through this massive body of statutes and decisions is an analytical task of the first order.

History and analysis need to be supplemented by an understanding of the actual functioning of legal rules and concepts, the actual consequences of statutes and decisions. Language on statute books, in the field of Indian law as in other fields, frequently has only a tenuous relation to the law-in-action which courts and administrators and the process of government have derived from the words of Congress. The words of court opinions frequently have as tenuous a relation to the actual holdings. Magic "solving words" like "Indian title," "wardship," and "competency," are often used to establish connections, between a case under consideration and some precedent, that turn out on reflection to be purely verbal. Functional study of the federal Indian law in action is essential to a work that may serve the practical purposes of administrators.

While it has been fashionable in some circles to consider historical, analytical, and functional approaches to legal problems as mutually exclusive and antagonistic, a more tolerant and useful viewpoint is expressed in the keynote article of one of the most promising of the newer legal periodicals:

> Precisely because it is a very different question from these questions that have occupied so large a part of traditional jurisprudence, the question of the human significance of law must be posed as a supplement to established lines of inquiry in legal science rather than as a substitute for them. Indeed, there is an intimate and mutual interdependence among these lines of inquiry, historical, analytical, ethical, and functional.

> The law of the present is a tenuous abstraction hovering between legal history and legal prophecy. The functionalist cannot describe the present significance of any rule of law without reference to historical elements. It is equally true that the historical jurist cannot reconstruct the past unless he grasps the meaning of the present.

> The functionalist must have recourse to the logical instruments that analytical jurisprudence furnishes. Analytical jurisprudence, in turn, may develop more fruitful modes of analysis with a better understanding of the law-in-action.

> Functional description of the workings of a legal rule will be indispensable to one who seeks to pass ethical judgments on law. The functionalist, however, is likely to be lost in an infinite maze of trivialities unless he is able to concentrate on the *important* consequences of a legal rule and ignore the *unimportant* consequences, a distinction which can be made only in terms of an ethical theory.⁸⁸

⁸⁸ F. S. Cohen, The Problems of a Functional Jurisprudence, 1 Modern Law Review (London) (1937) 5, 7.

INTRODUCTION

XV

When I assigned to the writer of these words the task of applying to the field of Indian law the standards of scholarship which he had written about and demonstrated in several other fields,⁹⁹ I did so with the conviction that the resulting work would be a contribution to legal scholarship and legal method as well as to the immediate field of Indian law. Assistant Solicitor Felix S. Cohen has brought to bear in the writing of this work not only an unusual equipment in fields of research but seven years of practical experience in handling on the various Indian reservations the most difficult controversies that have arisen during that period and in drafting a significant part of the legislation about which he writes.

(Signed) NATHAN R. MARGOLD,

Solicitor.

DEPARTMENT OF THE INTERIOR, July 3, 1940.

⁹⁹ The Ethical Basis of Legal Criticism (1931), 41 Yale Law Jour. 201; Ethical Systems and Legal Ideals (1933); (In collaboration with Mr. Justice Shientag) Summary Judgments in the Supreme Court of New York (1932), 32 Col. Law Rev. 828; The Subject Matter of Ethical Science (1932), 42 Int. Jour. of Ethics 397; Modern Ethics and the Law (1934), 4 Brooklyn Law Rev. 33; Transcendental Nonsense and the Functional Approach (1935), 35 Col. Law Rev. 809; Anthropology and the Problems of Indian Administration (1937), 18 Southwestern Social Science Quarterly No. 2; The Relativity of Philosophical Systems and the Method of Systematic Relativism (1939), 36 Journal of Philosophy 57; The Social and Economic Consequences of Exclusionary Immigration Laws (1939), 2 Nat. Lawyers Guild Quart. 171; Indian Rights and the Federal Courts (1940), 24 Minn. Law Rev. 145.

267785—41—2

AUTHOR'S ACKNOWLEDGMENTS

It is a pleasant duty to acknowledge the aid of the many individuals who have cooperated in the preparation of this work.

In the first place, it must be said that this work would not have been completed but for the strong belief of my two chiefs, Secretary Harold L. Ickes and Solicitor Nathan R. Margold, and of Commissioner of Indian Affairs John Collier in the importance of the work and their inspiring confidence in the ability of our tiny staff to carry it to completion.

Secondly, I must acknowledge the aid and encouragement that were given in the early stages of the work by Carl A. McFarland, then Assistant Attorney General, and his able assistant, Charles E. Collett, then Chief of the Trial Section in the Lands Division of the Department of Justice. Theirs was the vision that those who have worked in the preparation of this Handbook have tried to carry out, and their cooperation in this work, so long as they were able to give it, was unstinted.

Of those who aided in the actual preparation of this Handbook I owe a special debt to my chief collaborator, Theodore H. Haas, but for whose indefatigable energies a large part of this work must have remained unwritten. I am happy also to acknowledge the loyal aid given by two others who were with the work "for the duration," Mrs. Mima Pollitt and Miss Bettie Renner, both of the Department of Justice.

Because of unfortunate exigencies over which none of us had any control, the aid rendered by other attorneys collaborating in the project was limited in each case to a few weeks or months. I am nonetheless aware of the vital contributions that were made to the writing of this Handbook by Pedro Capo-Rodriguez, whose many years of experience representing the United States in Indian litigation have been of the greatest value in the preparation of this work, and by attorneys Fred G. Folsom, Jr., Abraham Glasser, Mrs. Pauline B. Heller, Thomas L. Karsten, Samuel Miller, Clifford Stearns, and Miss Doris Williamson. Valuable aid in the historical research involved in various portions of this work was given by Miss Mary K. Morris and Miss Lucy M. Kramer. Finally, I should like to acknowledge the part played in the preparation of this work by Mrs. Griselda G. Lobell and Mr. Joseph Watson, who checked and filed thousands of items of source material upon which the writing of this work was based.

Those of us who did the actual writing of this Handbook constitute only a small part in the stream of human energies that have influenced the form and content of this work. My associates in the Department of the Interior, particularly Ebert K. Burlew, First Assistant Secretary; Oscar L. Chapman, Assistant Secretary; William Zimmerman, Jr., Assistant Commissioner of Indian Affairs; Frederic L. Kirgis, First Assistant Solicitor; William H. Flanery, Charlotte T. Lloyd, Kenneth Meiklejohn, H. Byron Mock, Phineas Indritz, Marie Berger, and Frances Lavender, Assistant Solicitors; William A. Brophy, Special Attorney for the Pueblo Indians; John R. T. Reeves, General Counsel of the Indian Office; Samuel J. Flickinger, Assistant General Counsel; E. S. McMahan, Attorney; Fred H. Daiker, Assistant to the Commissioner of Indian Affairs; Allan G. Harper; Field Representative; George A. Hossick, Chief of the Alaska Unit of the Division of Game Management, and Seton H. Thompson, Assistant Chief of the Division of Alaska Fisheries, both of the Fish and Wildlife Service; and David E. Thomas, Chief of the Alaska Section of the Office of Indian Affairs, have all contributed in different ways to this work.

Finally I should like to make grateful acknowledgment of the aid given along the many vital steps that lie between writing and publication, by Dr. W. C. Mendenhall, Director of the Geological Survey; William Barton Greenwood, Finance Officer for the Bureau of Indian Affairs; Fred W. Johnson, Commissioner of the General Land Office; Floyd E. Dotson, Chief Clerk of the Interior Department; Frank C. Updike, Chief of the Miscellaneous Service Division; and Miss Helen Logan, in charge of the printing work of the Department.

Even this lengthy roster, sufficient as it is to dispel any illusory author's pride, is far from representing a complete sum of the human efforts that move through the pages of this volume. To do justice to these efforts one would have to mention the writers of books, articles and briefs, which are quoted at length in these chapters, the judges whose opinions form the backbone of the volume, the administrative officials whose reports and legal memoranda have proved so valuable in fields not yet covered by the decided cases, the statesmen in the White

xvii

XVIII

AUTHOR'S ACKNOWLEDGMENT

House, in Congress, and among the Indian tribes whose thoughts have taken form in the language of statute, treaty, and tribal law, which makes up so large a portion of this study, the many critics outside of Government circles who have brought to light defects in Indian law and administration, the critics of preliminary drafts of these chapters who have aided in many successive revisions, and the score or more of clerical and stenographic assistants who have performed many tasks incidental to the preparation of this work. But any such attempt to place on a written page all the names of those on whom one has depended would be inevitably vain. For each of us in his appointed work, in Government service as elsewhere, is the instrument of forces that run through an entire generation. What has made this work possible, in the final analysis, is a set of beliefs that form the intellectual equipment of a generation—a belief that our treatment of the Indian in the past is not something of which a democracy can be proud, a belief that the protection of minority rights and the substitution of reason and agreement for force and dictation represent a contribution to civilization, a belief that confusion and ignorance in fields of law are allies of despotism, a belief that it is the duty of the Government to aid oppressed groups in the understanding and appreciation of their legal rights, a belief that understanding of the law, in Indian fields as elsewhere, requires more than textual exegesis, requires appreciation of history and understanding of economic, political, social, and moral problems. These beliefs represent, I think, the American mind in our generation as it impinges upon one tiny segment of the many problems which modern democracy faces. It is fundamentally to these beliefs and to this mind that an author's acknowledgements, gratitude, and loyalty are due.

(Signed) FELIX S. COHEN.

JULY 1, 1940.

HANDBOOK OF FEDERAL INDIAN LAW

CHAPTER 1

THE FIELD OF INDIAN LAW: INDIANS AND THE INDIAN COUNTRY

TABLE OF CONTENTS

<table><thead><tr><th></th><th>Page</th></tr></thead><tbody><tr><td>Section 1. The field of Indian law</td><td>1</td></tr><tr><td>Section 2. Definitions of "Indian"</td><td>2</td></tr><tr><td>Section 3. Indian country</td><td>5</td></tr></tbody></table>

SECTION 1. THE FIELD OF INDIAN LAW

Indians are human beings, and like other human beings become involved in lawsuits. Nearly all of these lawsuits involve problems in the law of contracts, torts, and other recognized fields which have no particular relevance to Indian affairs. In many cases the only legal problems presented are of this character. Not every lawsuit, therefore, which involves Indians can be considered a part of our Indian law. Conversely, not every case that presents a problem of Indian law involves Indians as litigators. Most of the land in the United States, for example, was purchased from Indians, and therefore almost any title must depend for its ultimate validity upon issues of Indian law even though the last Indian owners and all their descendants be long forgotten.

Our subject, therefore, cannot be defined in terms of the parties litigant appearing in any case. It must be defined rather in terms of the legal questions which are involved in a case. Where such questions turn upon rights, privileges, powers, or immunities of an Indian or an Indian tribe or an administrative agency set up to deal with Indian affairs, or where governing rules of law are affected by the fact that a place is under Indian ownership or devoted to Indian use, the case that presents such questions belongs within the confines of this study.

Further, we shall use the term "federal Indian law" to cover not only decisions of courts, strictly so-called, but also decisions of administrative agencies and such materials, contained in statute, treaty, Executive order, or governmental regulation, custom and practice, as are accorded, by courts and administrators, "the force of law."

This subject matter is treated, in the course of this volume, from several distinct perspectives.

In the present chapter the scope of federal Indian law is considered, particularly in terms of the class of persons and places with which this branch of law deals.

The following three chapters treat, from an historical perspective, the three basic strands of development which make up the federal Indian law—administration (Chapter 2), treaty-making (Chapter 3), and legislation (Chapter 4).

The following three chapters deal with the problems of federal Indian law in terms of the question, "From what governmental

source do legal relations flow?" These chapters deal, respectively, with the powers of federal (Chapter 5), state (Chapter 6), and tribal (Chapter 7) governments.

Chapters 8 to 17 treat the substantive law of the field from the standpoint of the generic question: What are the rights, powers, privileges, and immunities of the parties?

Of these chapters, the first four deal with the legal status of individual Indians, treating personal rights and liberties (Chapter 8), rights of participation in tribal property (Chapter 9), individual rights in personal property (Chapter 10), and individual rights in real property (Chapter 11).

The following two chapters deal with rights, vested both in tribes and in individuals, which are subsumed under the headings "Federal Services for Indians" (Chapter 12) and "Taxation" (Chapter 13).

The substantive rights, powers, privileges, and immunities of Indian tribes form the subject of Chapters 14 and 15, the former dealing generally with "The Status of Indian Tribes," the latter with "Tribal Property."

The final two chapters of this substantive law section of the Handbook deal with matters involving primarily the legal position of two classes of non-Indians who have a special relation to Indian affairs, to wit: traders (Chapter 16) and purveyors of liquor (Chapter 17).

Chapters 18 and 19 deal with problems of court jurisdiction, the former in the field of criminal law, the latter in the field of civil law.

The last four chapters of this Handbook treat of four groups of Indians occupying peculiar positions in the law. Chapter 20 deals with the Pueblos of New Mexico; Chapter 21 analyzes the peculiar problems of the Natives of Alaska; Chapter 22 comments briefly on the New York Indians; and Chapter 23 offers a sketch of "Special Laws Relating to Oklahoma."

With these comments on the substance and structure of the volume, we turn to a more explicit delimitation of the persons and places that are the primary subjects of our federal Indian law.

In this demarcation of domains the definition of the class of persons, and the delimitation of the areas, to which federal Indian law applies may well be our first concern.

1

2

## SECTION 2. DEFINITION OF "INDIANS"

The term "Indian" may be used in an ethnological or in a legal sense. Ethnologically, the Indian race may be distinguished from the Caucasian, Negro, Mongolian, and other races. If a person is three-fourths Caucasian and one-fourth Indian, it is absurd, from the ethnological standpoint, to assign him to the Indian race. Yet legally such a person may be an Indian. From a legal standpoint, then, the biological question of race is generally pertinent, but not conclusive. Legal status depends not only upon biological, but also upon social factors, such as the relation of the individual concerned to a white or Indian community. This relationship, in turn, has two ends—an individual and a community. The individual may withdraw from a tribe or be expelled from a tribe; or he may be adopted by a tribe. He may or may not reside on an Indian reservation. He may or may not be subject to the control of the Federal Government with respect to various transactions. All these social or political factors may affect the classification of an individual as an "Indian" or a "non-Indian" for legal purposes, or for certain legal purposes. Indeed, in accordance with a statute reserving jurisdiction over offenses between tribal members to a tribal court, a white man adopted into an Indian tribe has been held to be an Indian,¹ and the decided cases do not foreclose the argument that a person of entirely Indian ancestry who has never had any relations with any Indian tribe or reservation may be considered a non-Indian for most legal purposes.

What must be remembered is that legislators, when they use the term "Indian" to establish special rules of law applicable to "Indians," are generally trying to deal with a group distinguished from "non-Indian" groups by public opinion,² and this public opinion varies so widely that on certain reservations it is common to refer to a person as an Indian although 15 of his 16 ancestors, 4 generations back, were white persons; while in other parts of the country, as in the Southwest, a person may be considered a Spanish-American rather than an Indian although his blood is predominantly Indian.

The lack of unanimity which exists among those who would attempt a definition of Indians is reflected in the difference in instructions to the enumerators of the 1930 and 1940 censuses.

In the 1930 census enumerators were instructed to return as Indians not only those of full Indian blood, but also those of mixed white and Indian blood, "except where the percentage of Indian blood is very small" or where the individual was "regarded as a white person in the community where he lives." The instructions further specified that "a person of mixed Indian and Negro blood shall be returned as a Negro unless the Indian blood predominates and the status as an Indian is generally accepted in the community."³

In the 1940 census on the other hand, enumerators were directed that "a person of mixed white and Indian blood should be returned as Indian, if enrolled on an Indian agency or reservation roll; or if not so enrolled, if the proportion of Indian blood is one-fourth or more, or if the person is regarded as an Indian in the community where he lives." The provision concerning persons of mixed Indian and Negro blood was changed to provide for the return of such an individual as Negro, unless the Indian blood very definitely predominates and he is universally accepted in the community as an Indian.⁴

Recognizing the possible diversity of definitions of "Indian-hood," we may nevertheless find some practical value in a definition of "Indian" as a person meeting two qualifications: (a) That some of his ancestors lived in America before its discovery by the white race, and (b) that the individual is considered an "Indian" by the community in which he lives.

The function of a definition of "Indian" is to establish a test whereby it may be determined whether a given individual is to be excluded from the scope of legislation dealing with Indians.

A typical statute dealing with Indians is the Trade and Intercourse Act of 1834,⁵ which in section 25 provides:

* * * That so much of the laws of the United States as provides for the punishment of crimes committed within any place within the sole and exclusive jurisdiction of the

³The Indian population of the United States and Alaska, 1930, U. S. Department of Commerce, Bureau of the Census, Washington, D. C. For a discussion of statutes distinguishing between Indians and freedmen see Chapter 8, sec. 11.

⁴The results of the 1940 census are not available at the time of publication of this book so that it is not possible to compare the possible differences in results occasioned by the difference of instructions to enumerators. In the census of 1910, though the question of who should be returned as Indian was left to the discretion of the enumerator, he was obliged, once he had decided an individual was an Indian, to obtain information concerning tribe and blood. According to the census of 1930 there were 332,393 Indians in continental United States and 29,983 in Alaska, while in 1910 there were 265,683 Indians in continental United States and 25,331 in Alaska. In commenting on the results of these two censuses, Dr. George B. L. Arner, in The Indian Population of the United States and Alaska, 1930—U. S. Department of Commerce, Bureau of the Census, stated:

> In the case of the Indian population, rates of increase or decrease are of little significance, as the size of the Indian population depends entirely upon the attention paid to the enumeration of mixed bloods, and the interpretation of the term "Indian" in the instructions to enumerators. It is not without significance that at the two censuses in which specific questions were asked as to tribe and blood, the number of Indians should have been much larger than at censuses in which those questions were not asked. If the definition of the Indian population were limited to Indians maintaining tribal relations, the enumeration of the Bureau of Indian Affairs is probably more nearly accurate than that of the census.⁵ This enumeration in 1932 showed a total of 228,381. On the other hand, if all persons having even a trace of Indian blood were returned as Indians, the number would far exceed even the total returned at the census of 1910. (P. 2.)

As of January 1, 1939, the Bureau of Indian Affairs estimated that there were under its jurisdiction 351,878 Indians in continental United States and 29,983 in Alaska, or a total of 381,861. This number includes individuals of as little as 1/64 Indian blood entitled to certain rights or benefits as Indians, as well as white persons adopted into an Indian tribe. Statistical Supplement to the Annual Report of the Commissioner of Indian Affairs, 1939.

⁵Act of June 30, 1834, sec. 25; 4 Stat. 729, R. S. § 2145, 25 U. S. C. 217.

¹Nofire v. United States, 164 U. S. 657 (1897).

²A graphic example of the borrowing by courts of uncritical impressions of what constitutes an Indian is found in a series of cases on the question whether the natives of the Pueblos are "Indians." In 1869, the Supreme Court of the Territory decided that they could not be considered Indians because they were "honest, industrious, and law abiding citizens" and "a people living for three centuries in fenced abodes and cultivating the soil for the maintenance of themselves and families and giving an example of virtue, honesty, and industry to their more civilized neighbors." *United States v. Luceo*, 1 N M. 422, 438, 442 (1869). In 1876, the Supreme Court, likewise, held that these people could not be considered Indians because they were "a peacable, industrious, intelligent, honest, and virtuous people * * * Indians* only in feature, complexion, and a few of their habits * * * *." *United States v. Joseph*, 94 U. S. 614 616 (1876). So long as these impressions continue to prevail, efforts of the Indian Bureau to assert full powers of "guardianship" over the Pueblos were unsuccessful. See Chapter 20, sec 3, infra. In 1913, however, the Indian Bureau compiled enough reports of immorality among the Pueblos to convince the Supreme Court that its earlier observations on Pueblo character had been based upon erroneous information and that these people were really Indians needing Indian Bureau supervision. The court, *per Van Devanter*, J., quoted at length from agents' reports of drunkenness, debauchery, dancing, and communal life in support of the conclusion that they were Indians, being a "simple, uninformed, and inferior people." *United States v. Sandoral*, 231 U. S. 28, 39-47 (1913). It may be doubted whether the conception of what makes a man an Indian, implicit in all these opinions, would be accepted today.

The test of "common understanding" is advanced by Cardozo, J., in *Morrison v. California*, 291 U. S. 82, 86 (1934), in support of the view that "not impossibly" a per son with Indian blood of less than one-fourth degree is to be regarded as an Indian.

3

United States, shall be in force in the Indian country: Provided. The same shall not extend to crimes committed by one Indian against the person or property of another Indian. (P. 733.)

Lacking other criteria than the words of the statute, the courts have, reasonably enough, taken the position that the term "Indian" is one descriptive of an individual who has Indian blood in his veins and who is regarded as an Indian by the society of Indians among whom he lives. Thus, in holding that a white man who is adopted into an Indian tribe does not thereby become an Indian within the meaning of the foregoing statute,⁶ the Court, in United States v. Rogers,⁷ said:

* * * And we think it very clear, that a white man who at mature age is adopted in an Indian tribe does not thereby become an Indian, and was not intended to be embraced in the exception above mentioned. He may by such adoption become entitled to certain privileges in the tribe, and make himself amenable to their laws and usages. Yet he is not an Indian; and the exception is confined to those who by the usages and customs of the Indians are regarded as belonging to their race. It does not speak of members of a tribe, but of the race generally,— of the family of Indians; and it intended to leave them both, as regarded their own tribe, and other tribes also, to be governed by Indian usages and customs. (Pp. 572-573.)

Though a white man cannot by association become an Indian, within the application of the foregoing statute, an Indian may, nevertheless, under some circumstances, lose his identity as an Indian. It has been held that the General Allotment Act⁸ operates to make Indians who are descendants of aboriginal tribes, but who have taken up residence apart from any tribe and adopted habits of civilization, non-Indians, within the meaning of an Alaska statute defining Indians for the purpose of liquor regulation as "aboriginal races inhabiting Alaska when annexed to the United States, and their descendants of the whole or half blood who have not become citizens of the United States."⁹

In upholding the constitutionality of the federal statute making murder of an Indian by another Indian on an Indian reservation a federal crime, the Supreme Court declared:

> the fair inference is that the offending Indian shall belong to that or some other tribe.¹⁰

On the other hand, an Indian does not lose his identity as such within the meaning of federal criminal jurisdictional acts, even though he has received an allotment of land, is not under the control or immediate supervision of an Indian agent, and has become a citizen of the United States and of the state in which he resides.¹¹

⁶ Act of June 30, 1834, 4 Stat. 729.

⁷ 4 How. 567 (1816). Accord: *United States v. Ragsdale*, 27 Fed. Cas. No. 16113 (C. C. Ark., 1847); *Ex Parte Morgan*, 20 Fed. 298 (D. C. W. D. Ark., 1883); *Westmoreland v. United States*, 155 U. S. 545 (1-95); *Alberty v. United States*, 162 U. S. 499 (1896) (holding that a Negro does not by adoption into a tribe become an Indian).

The same rule would seem to apply to a white man married to an Indian woman and residing on a reservation. At least, it has been held that a white man, married to an Indian woman, residing on a reservation, and made a member of the tribe or nation, is not an Indian entitled to share in tribal funds or in the allotment of Indian lands. *Red Bird v. United States*, 203 U. S. 76 (1906).

⁸ Act of February 8, 1887, 24 Stat. 388, 25 U. S. C. 331, et seq.

⁹ *Nagle v. United States*, 191 Fed. 141 (C. A. 9, 1911).

¹⁰ *United States v. Kagama*, 118 U. S. 375, 383 (1886). And see Chapter 14, fn. 8.

¹¹ *United States v. Flynn*, 25 Fed. Cas. No. 15124 (C. C. Minn. 1870); *Hallowell v. United States*, 221 U. S. 317 (1911); *United States v. Kiya*, 126 Fed. 879 (D. C. N. D. 1903); *United States v. Celestine*, 215 U. S. 278 (1909); *United States v. Sutton*, 215 U. S. 291 (1909). Also see Chapter 8, sec. 2C.

Within the meaning of those various statutes which though applicable to Indians do not define them, the courts, in defining the status of Indians of mixed Indian and other blood,¹² have largely followed the test laid down in *United States v. Rogers*,¹³ to the effect that an individual to be considered an Indian must not only have some degree of Indian blood but must in addition be recognized as an Indian. In determining such recognition the courts have heeded both recognition by the tribe or society of Indians and recognition by the Federal Government as expressed in treaty and statute.¹⁴

Thus in *United States v. Higgins*¹⁵ it was said:

> In determining as to what class half-breeds belong, we may refer, then, to the treatment and recognition the executive and political departments of the government have accorded them. * * * (P. 350.)

> Considering the treaties and statutes in regard to half-breeds, I may say that they never have been treated as white people entitled to rights of American citizenship. Special provision has been made for them,—special reservations of land, special appropriations of money. No such provision has been made for any other class. It is well known to those who have lived upon the frontier in America that, as a rule, half-breeds or mixed-blood Indians have resided with the tribes to which their mothers belonged; that they have, as a rule, never found a welcome home with their white relatives, but with their Indian kindred. It is but just, then, that they should be classed as Indians, and have all of the rights of the Indian. In 7 Op. Attys. Gen. 746, it is said, "Half-breed Indians are to be treated as Indians, in all respects, so long as they retain their tribal relations." (P. 352.)

¹² The term "mixed blood Indian" has been held to include not only those of half white or more than half white blood, but every Indian having an identifiable admixture of white blood, however small. *United States v. Detroit First Nat. Bank*, 234 U. S. 245 (1914); *State v. Nicolls*, 61 Wash. 142, 112 Pac. 269 (1910). For a discussion of distinctions based on degrees of Indian blood, see Chapter 8, sec. B (1) (a).

¹³ *Supra*, fn. 7.

¹⁴ Numerous treaties, as well as statutes, have recognized individuals of mixed blood as Indians. *Treaty of September 29, 1817*, with the Wyandot and other tribes, 7 Stat. 163; *Treaty of October 6, 1818*, with the Miami Indians, 7 Stat. 191; *Treaty of August 4, 1824*, with the Sac and Fox Indians, 7 Stat. 229; *Treaty of November 15, 1824*, with the Quapaw Indians, 7 Stat. 233; *Treaty of June 3, 1825*, with the Ojage Indians, 7 Stat. 240; *Treaty of June 3, 1825*, with the Kansas Indians, 7 Stat. 245; *Treaty of August 5, 1826*, with the Chippewas, 7 Stat. 291; *Treaty of October 16, 1826*, with the Pottawatomie Indians, 7 Stat. 298, 299; *Treaty of October 23, 1826*, with the Miami Indians, 7 Stat. 302; *Treaty of August 1, 1829*, with the Winnebago Indians, 7 Stat. 324; *Treaty of July 15, 1830*, with the Sioux Indians, 7 Stat. 330; *Treaty of August 30, 1831*, with the Ottawa Indians, 7 Stat. 362; *Treaty of September 15, 1832*, with the Winnebago Indians, 7 Stat. 372; *Treaty of September 21, 1832*, with the Sac and Fox Indians, 7 Stat. 374; *Treaty of October 27, 1832*, with the Pottawatomie Indians, 7 Stat. 400; *Treaty of March 28, 1836*, with the Ottawa and other Indians, 7 Stat. 493; *Treaty of July 29, 1837*, with the Chippewa Indians, 7 Stat. 537; *Treaty of September 29, 1837*, with the Sioux Indians, 7 Stat. 539; *Treaty of November 1, 1837*, with the Winnebago Indians, 7 Stat. 545; *Treaty of October 4, 1842*, with the Chippewa Indians, 7 Stat. 592; *Treaty of October 18, 1848*, with the Menominee Indians, 9 Stat. 952; *Treaty of March 16, 1854*, with the Ottoc and Missouria Indians, 10 Stat. 1045; *Treaty of February 22, 1855*, with the Chippewa Indians, 10 Stat. 1169; *Treaty of February 27, 1855*, with the Winnebago Indians, 10 Stat. 1174; *Treaty of September 24, 1857*, with the Pawnee Indians, 11 Stat. 731; *Treaty of March 12, 1858*, with the Ponca Indians, 12 Stat. 999; *Treaty of September 29, 1865*, with the Osage Indians, 14 Stat. 689; *Treaty of October 14, 1865*, with the Cheyenne Indians, 14 Stat. 705; *Treaty of March 21, 1866*, with the Seminole Indians, 14 Stat. 756; *Act of April 27, 1816*, 6 Stat. 171; *Act of June 30, 1834*, 4 Stat. 740; *Act of March 23, 1837*, 6 Stat. 689; *Act of June 5, 1872*, 17 Stat. 226, 25 U. S. C. 479, 25 U. S. C. 163; *Act of May 27, 1908*, 35 Stat. 312, 25 U. S. C. 184, 28 U. S. C. 41 (24).

In at least one treaty, children are described as quarter-blood Indians. *Treaty of September 29, 1817*, with the Wyandot and other tribes, 7 Stat. 163.

¹⁵ 103 Fed. 348 (C. C. Mont. 1900).

4

Presumptively, a person of mixed blood residing upon a reservation, and enrolled in a tribe, is an Indian for purposes of legislation on federal criminal jurisdiction.¹⁸ It has been held¹⁹ that an individual of less than one-half Indian blood enrolled in a tribe and recognized as an Indian by the tribe is an Indian within the Act of March 4, 1909,²⁰ extending federal jurisdiction to rape committed by one Indian against another within the limits of an Indian reservation. Likewise, it has been held²¹ that mixed bloods who are recognized by the tribe as members thereof may properly receive allotments of lands as Indians. In *Sully v. United States*,²² where one-eighth bloods were involved, the court stated that the persons were "of sufficient Indian blood to substantially handicap them in the struggle for existence," and held that they were Indians and were entitled to be enrolled as such.

Citizenship has been denied a person of half white and half Indian blood on the ground that such an individual is not a "white person" within the meaning of that phrase as used in the statute.²³

On the question of the status of offsprings of white and Indian or Negro and Indian parents, there are conflicting lines of authority. One holds to the common law doctrine that the offspring of free parents assumes the status of the father; the other to the general tribal custom that the offspring assumes the status of the mother.²⁴

In the first category are decisions to the effect that the offspring of the union between a white man²⁵ and an Indian woman or between a Negro²⁶ and an Indian woman assume the status of the father and are therefore not Indians within the meaning of statutes extending or denying federal jurisdiction over crimes committed by an Indian against another Indian. And there are holdings that where a child is born off the reservation of a white father and an Indian mother, he will not, by returning to the reservation, and receiving an allotment of land as an Indian, be classed as an Indian so as either to exempt his property from state taxation²⁷ or to bring himself within the criminal jurisdictional statutes relating to Indians.²⁸

In the second category we find many cases which follow the usual tribal custom wherein it is held that the offspring of an Indian mother and a white or Negro father assumes the status of the mother.²⁹ Here again the ultimate question of the status of

the individual will depend on his or his mother's recognition as an Indian by the tribe. In this connection the language of the court in *Waldron v. United States*³⁰ may be noted:

* * * In this proceeding the court has been informed as to the usages and customs of the different tribes of the Sioux Nation, and has found as a fact that the common law does not obtain among said tribes, as to determining the race to which the children of a white man, married to an Indian woman, belong; but that, according to the usages and customs of said tribes, the children of a white man married to an Indian woman take the race or nationality of the mother. * * *

* * * The United States have never, so far as legislation is concerned, recognized the technical rule of the common law in reference to the children born of a white father and an Indian mother. In 1897, Congress in the Indian appropriation act of that year (Act June 7, 1897, c. 3, 30 Stat. 90), declared:

"That all children, born of a marriage heretofore solemnized between a white man and an Indian woman by blood and not by adoption, where said Indian woman is at this time, or was at the time of her death, recognized by the tribe, shall have the same rights and privileges to the property of the tribe to which the mother belongs or belonged at the time of her death by blood, as any other member of the tribe, and no prior act of Congress shall be construed as to debar such child of such rights."

In *Davison v. Gibson*. 56 Fed. 445. 5 C. C. A. 545, the Circuit Court of Appeals of this circuit said:

"It is common knowledge, of which the court should take judicial knowledge, that the domestic relations of the Indians of this country have never been regulated by the common law of England, and that that law is not adapted to the habits, customs, and manners of the Indians."

The court has considered the cases cited by counsel for defendants wherein, upon certain facts, persons were held not to be Indians; but these cases either seek to invoke what they say was the common law, or are in criminal proceedings. These cases, so far as they seek to invoke the common law to the Indians, are not followed, for reasons herein stated, and, so far as they seek to construe criminal statutes, are inapplicable as there is a wide distinction to be made between the construction of a criminal statute and a contract between a tribe of Indians and the United States. (Pp. 419-420.)

That, however, even with reference to statutes on federal criminal jurisdiction, the child of an Indian mother may assume her status is borne out by the decision of the court in *United States v. Sanders*.³¹

Likewise, it has been held³² that the child of a white father and an Indian mother, abandoned by the father and residing in tribal relationship with the mother, is an Indian within the meaning of a statute defining the offense of selling liquor to Indians.

In the foregoing discussion notice has been taken with but a single exception only of those statutes wherein no definition of the word "Indian" was attempted.

Although Congress has classified Indians for various particular purposes, it has never laid down a classification and either specified or implied that individuals not falling within the classification were not Indians. In various enactments classification has

¹⁸ *Famous Smith v. United States*, 151 U. S. 50 (1894).

¹⁹ *United States v. Gardiner*, 189 Fed. 690 (D. C. E. D. Wis. 1911). Accord: *State v. Campbell*, 53 Minn. 354, 55 N. W. 553 (1893).

²⁰ 35 Stat. 1088, 1151.

²¹ *Sloan v. United States*, 118 Fed. 283 (C. C. Neb. 1902).

²² 195 Fed. 113 (C. C. S. D. 1912).

²³ *In re Camille*, 6 Fed. 256 (C. C. Ore. 1880) (Construing R. S. § 671).

²⁴ *On tribal power over determination of membership see Chapter 7, sec. 4.*

²⁵ *Ex Parte Reynolds*, 20 Fed. Cas. No. 11719 (D. C. W. D. Ark., 1879).

²⁶ *United States v. Ward*, 42 Fed. 320 (C. C. S. D. Cal. 1890).

²⁷ *United States v. Hadley*, 99 Fed. 437 (C. C. Wash. 1900). See Chapter 18.

²⁸ *United States v. Higgins*, 110 Fed. 609 (C. C. Mont. 1901). See Chapter 13, sec. 3.

²⁹ *In United States v. Higgins*, 103 Fed. 348, 352 (C. C. Mont. 1900). It was held that one born of a white father and an Indian mother, and who was a recognized member of the tribe of Indians in which his mother belonged, was not subject to taxation under the laws of the state in which he resided. In *Vezina v. United States*, 245 Fed. 411 (C. A. 8, 1917) the daughter of a half- to three-fourths blood Chippewa woman and a white man was held to be by blood a member of the Fond du Lac Band of Chippewas of Lake Superior, the court thereby overruling the action of the Department of Indian Affairs in refusing enrollment and allotment to the daughter. And in *Aberty v. United States*, 162 U. S. 499 (1896), the court held that an illegitimate child, born of an Indian man and a co-oriented woman, takes the status of its mother and is therefore not an Indian.

³⁰ 143 Fed. 413 (C. C. S. D. 1905); see also *Sioux Mixed Blood*, 20 Op. A. G. 711 (1894).

³¹ 27 Fed. Cas. No. 16220 (C. C. Ark. 1847) *Of Ex Parte Pero*, 99 F. 2d 28 (C. C. A. 7, 1938) (holding that the child of an Indian mother and a half-blood father who lives on the reservation and is recognized as an Indian, is an Indian within federal criminal jurisdictional statutes.)

³² *Farrell v. United States*, 110 Fed. 942 (C. C. A. 8, 1901). Accord: *Halbert v. United States*, 283 U. S. 753 (1931).

5

been based primarily upon the presence of some quantum of
Indian blood. Thus, the Indian Appropriation Act of May 25,
1918,³¹ provides:

> No appropriation, except appropriations made pursuant to treaties, shall be used to educate children of less than one-fourth Indian blood * * *

For the purpose of controlling the traffic in liquor with the Indians Congress has classified Indians under the "charge of any Indian superintendent or agent."³² By a later act³³ the classification was changed to include "any Indian to whom allotment of land has been made while the title to the same shall be held in trust by the government" or "any Indian a ward of the government under charge of an Indian superintendent or agent" or "any Indian, including mixed bloods, over whom the government through its departments exercises guardianship." This classification is perhaps as broad as any that may be found in congressional enactment, extending as it does to all mixed bloods providing only that they be considered as wards of the government.³⁴

Various special acts relating to certain tribes have provided for the removal of restrictions on alienation from lands of the members of the tribe of less than one-half Indian blood.³⁵ Other acts have used the term "mixed blood."³⁶

In the Act of March 4, 1931,³⁷ relating to the Eastern Band of Cherokees of North Carolina, Congress states:

> That thereafter no person of less than one-sixteenth degree of said Eastern Cherokee Indian blood shall be recognized as entitled to any rights with the Eastern Band of Cherokee Indians except by inheritance from a deceased member or members: * * * (P. 1518.)

Congress had previously recognized Indians of less than this degree of blood for in the Act of June 4, 1924,³⁸ it provided:

> That any member of said band whose degree of Indian blood is less than one-sixteenth may, in the discretion of the Secretary of Interior, be paid a cash equivalent in lieu of an allotment of land. (P. 379.)

³¹ 40 Stat. 564, 25 U. S. C. 297.

³² Act of July 23, 1892.

³³ Act of January 30, 1897.

³⁴ For a discussion of wardship see Chapter 8, sec. 9.

³⁵ Act of May 27, 1908, 35 Stat. 312 (Five Civilized Tribes); Act of March 3, 1921, 41 Stat. 1249 (Osage).

³⁶ Act of June 21, 1906, 34 Stat. 353; Act of March 1, 1907, 34 Stat. 1034.

³⁷ 46 Stat. 1518.

³⁸ 43 Stat. 366.

A recent statutory definition of an Indian is that contained in the Indian Reorganization Act,³⁹ which in section 19 provides:

> The term "Indian" as used in this Act shall include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction, and all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation, and shall further include all other persons of one-half or more Indian blood. For the purposes of this Act, Eskimos and other aboriginal peoples of Alaska shall be considered Indians.⁴⁰ (P. 988.)

In this act as in the foregoing acts, the definition of "Indian" is limited in its connotation to the purposes of the legislation.

Apart from statute, the administrative agencies of the Federal Government dealing with Indian affairs commonly consider a person who is of Indian blood and a member of a tribe, regardless of degree of blood, an Indian.⁴¹

Thus the Indian Law and Order Regulations approved by the Secretary of the Interior on November 27, 1935,⁴² contain the provision:

> For the purpose of the enforcement of the regulations in this part, an Indian shall be deemed to be any person of Indian descent who is a member of any recognized Indian tribe now under Federal jurisdiction * * *.

This definition exemplifies the idea that in dealing with Indians the Federal Government is dealing primarily not with a particular race as such but with members of certain social-political groups towards which the Federal Government has assumed special responsibilities.

³⁹ Act of June 18, 1934, 48 Stat. 984, 25 U. S. C. 461, et seq.

⁴⁰ For further definitions of Alaskan natives as Indians see Chapter 21, sec. 1.

⁴¹ Here, too, however, one finds administrative regulations which classify Indians according to blood quantum for particular purposes. Thus by Executive order of January 31, 1939, Indians of one-fourth or more Indian blood were exempted insofar as positions in the Bureau of Indian Affairs were concerned, from Civil Service examination. See Chapter 8, sec. 4 B (2). On the other hand regulations concerning the admission of Indians into Indian hospitals and *sanitaria* provide that:

⁴² 85.2. Persons who are in need of hospitalization and who are enrolled Indians, recognized members of a tribe, and who are unable to provide such hospitalization from their own funds, may be admitted to such institutions.

⁴³ 85.4. Preference should be given to those of a higher degree of Indian blood. * * *

(25 C. F. R. 55.2 and 55.4)

⁴⁴ 25 C. F. R. 161.2.

## SECTION 3. INDIAN COUNTRY

Although the term "Indian country" has been used in many senses, it may perhaps be most usefully defined as country within which Indian laws and customs and federal laws relating to Indians are generally applicable. The phrase "generally applicable" is used because for certain purposes tribal law and custom and federal law relating to Indians have a validity regardless of locality. Thus, for example, Congress has made it a crime to sell liquor to Indians anywhere in the United States,⁴⁵ and the status which an Indian acquires by tribal custom marriage will generally be recognized in all parts of the United States.⁴⁶

The greater part, however, of the body of federal Indian law and tribal law applies only to certain areas which have a peculiar

relation to the Indians and which in their totality comprise the Indian country.

The Indian country at any particular time must be viewed with reference to the existing body of federal and tribal law. Until 1817 it is country within which the criminal laws of the United States are not generally applicable, so that crimes in Indian country by whites against whites, or by Indians, are not cognizable in state or federal courts,⁴⁷ any more than crimes committed on the soil of Canada or Mexico. Treaties defined the boundaries between the United States, or the separate states,

⁴⁵ Under the Act of July 22, 1790, 1 Stat. 137, federal jurisdiction was extended over any crime committed by a citizen or inhabitant of the United States against the person or property of any friendly Ind'an in any town, settlement, or territory belonging to any nation or tribe of Indians. Since the act specified that it was to be in force only for 2 years, it was superseded by the Act of March 1, 1793, 1 Stat. 529, which extended federal jurisdiction as before. On criminal jurisdiction see Chapter 18.

⁴⁶ Act of July 23, 1892, 27 Stat. 260, as amended by Act of June 15, 1938, 52 Stat. 696; 25 U. S. C. 241. And see Chapter 17, sec. 3.

⁴⁷ 54 I. D. 39 (1932); and see R. A. Brown, The Indian Problem and the Law (1930) 39 Yale L. J. 307, 315. See also Chapter 7, sec. 5.

6

and the territories of the various Indian tribes or nations.⁴⁶ Within these territories the Indian tribes or nations had not only full jurisdiction over their own citizens, but the same jurisdiction over citizens of the United States that any other power might lawfully exercise over emigrants from the United States.⁴⁷ Treaties between the United States and various tribes commonly stipulated that citizens of the United States within the territory of the Indian nations were to be subject to the laws of those nations.⁴⁸

It is against this legal background that the first legislative definitions must be understood. As early as July 22, 1790,⁴⁹ Congress used the expression "Indian country" in the first trade and intercourse act, apparently with the meaning of country belonging to the Indians, occupied by them, and to which the Government recognized them as having some kind of right and title. In the Act of March 1, 1793,⁵⁰ Indian country and Indian territory were used synonymously.

The Act of May 19, 1796,⁵¹ contained the first statutory delimitation of Indian country, fixing, according to the then existing treaties, the boundary line between Indian country and the United States. In this act, as in those which followed it, the term "Indian country" is used as descriptive of the country within the boundary lines of the Indian tribes. In 1799,⁵² and again in 1802,⁵³ the boundary of Indian country was redefined by Congress to conform with new treaties. In each instance it was provided that a citizen or inhabitant of the United States committing a crime against a friendly Indian, or Indians within Indian country should be subject to the jurisdiction of the federal courts. In both of these acts the words "Indian country" and "Indian territory" are used synonymously.⁵⁴

⁴⁶ Treaty of January 21, 1785, with the Wlandot, Delaware. Chippawa, and Ottawa Nations. 7 Stat. 16; Treaty of November 28, 1785, with the Cherokees, 7 Stat. 18; Treaty of January 3. 1786, with the Choctaw Nation. 7 Stat. 21; Treaty of January 10 1786, with the Chickasaw Nation. 7 Stat. 24; Treaty of January 9, 1789, with the Wyandot, Delaware, Ottawa, Chippawa, Pattawattima, and Sac Nations. 7 Stat. 28; Treaty of August 7, 1790 with the Creek Nation, 7 Stat. 35; Treaty of July 2, 1791, with the Cherokee Nation, 7 Stat. 39; Treaty of August 3 1795 with the Wyandots, Delawares, Shawnoes, Ottawas, Chippewas, Putawatimes, Miamis, Eel River, Ween's, Kickapoos, Piankashaws, and Kaska-kias, 7 Stat. 49; Treaty of October 2, 1798, with the Cherokee Nation. 7 Stat. 62; Treaty of December 17, 1801, with the Choctaw Nation. 7 Stat. 66; Treaty of October 17, 1802, with the Choctaw Nation. 7 Stat. 73; Treaty of November 3, 1804, with the Sac and Fox, 7 Stat. 84; Treaty of July 4, 1805, with the Wyandot, Ottawa, Chippawa, Muskeegose and Delaware, Shawnee, and Pottawatime Nations, 7 Stat. 87. See also Chapter 3, secs. 3A (2), 3A (B).

⁴⁷ It is interesting to note in this connection that some of the early Trade and Intercourse Acts contained a provision requiring a citizen or inhabitant of the United States to acquire a passport before going into the country secured by treaty to the Indians. Act of May 19, 1796, 1 Stat. 469; Act of March 3, 1799, 1 Stat. 743; Act of March 30, 1802 2 Stat. 139. The provision was modified in the Act of June 30, 1834, 4 Stat. 729 so as not to apply to citizens of the United States. See Chapter 3, sec. 3A (3); Chapter 4, sec. 5.

⁴⁸ Treaty of January 21, 1785, with the Wlandot, Delaware, Chippawa, and Ottawa Nations, 7 Stat. 16; Treaty of November 28, 1785, with the Cherokees, 7 Stat. 18; Treaty of January 3 1786, with the Choctaw Nation. 7 Stat. 21; Treaty of January 10, 1786, with the Chickasaw Nation. 7 Stat. 24; Treaty of January 31, 1786, with the Shawnee Nation, 7 Stat. 26; Treaty of January 9, 1789, with the Wyandot, Delaware, Ottawa, Chippawa, Pattawattima, and Sac Nations, 7 Stat. 28; Treaty of August 7, 1790, with the Creek Nation, 7 Stat. 35; Treaty of July 2 1791, with the Cherokee Nation, 7 Stat. 39; Treaty of August 3, 1795 with the Wyandots, Delawares, Shawnoes, Ottawas, Chippewas, Putawatimes, Miamis, Eel River, Weena's, Kickapoos, Piankashaws, and Kaska-kias, 7 Stat. 49.

⁴⁹ 1 Stat. 137.

⁵⁰ 1 Stat. 329, similarly in the Act of March 3, 1799, 1 Stat. 743, and in Act of March 30, 1802, 2 Stat. 139.

⁵¹ 1 Stat. 469.

⁵² Act of March 3, 1799, 1 Stat. 743.

⁵³ Act of March 30, 1802, 2 Stat. 139.

⁵⁴ For a later meaning of the term "Indian territory" see Chapter 23.

The Inconvenience of a territory in which white desperados could escape the force of state and federal law made itself felt in the Act of March 3, 1817,⁵⁵ which extended federal law to cover crimes committed by an Indian or white person within any town, district, or territory belonging to any nation or tribe of Indians, subject, however, to the limitation that the act should not be construed to extend to an offense by one Indian against another Indian within any Indian boundary.

Indian country in all these statutes is territory, wherever situated, within which tribal law is generally applicable, federal law is applicable only in special cases designated by statute, and state law is not applicable at all. This conception of the Indian country reflects a situation which finds its counterpart in international law in the case of newly acquired territories, where the laws of those territories continue in force until repealed or modified by the new sovereign. We find that Congress, when called upon to define Indian country in the Act of June 30, 1834,⁵⁶ said:

* * * That all that part of the United States west of the Mississippi, and not within the states of Missouri and Louisiana, or the territory of Arkansas, and, also, that part of the United States east of the Mississippi river, and not within any state to which the Indian title has not been extinguished, for the purposes of this act, be taken and deemed to be the Indian country.

Whether Indian reservations within the exterior boundaries of a state but exempted by treaty or statute from state jurisdiction were included within the foregoing distinction is a question not free from doubt.⁵⁷ Such doubts, however, were resolved by a series of judicial decisions and by the failure to include section 1 of the Act of 1834⁵⁸ in the Revised Statutes, thereby repealing it.⁵⁹

No subsequent statutory definition of Indian country appears, 'though for purposes of defining federal criminal jurisdiction reference is made in numerous acts'⁶⁰ to "Indian country."

⁵⁵ 3 Stat. 383.

⁵⁶ 4 Stat. 729. In the report of the Committee of Indian Affairs to the House of Representatives concerning, among others, this act we find the following interesting commentary suggesting a basis for the definition of Indian country as therein contained.

The Indian country * * * will include all the territory of the United States west of the Mississippi, not within Louisiana, and Arkansas, and those portions east of that river, and not within the limits of any State, to which the Indian title is not extinguished. The Southern Indians are not embraced within it. Most of them have agreed to emigrate. To all their lands, with the exception of those of a part of a single tribe, the Indian title has been extinguished; and the States in which the Indians of that excepted tribe remain, have extended their laws over them.

* This act is intended to apply to the whole Indian country, as defined in the first section. On the west side of the Mississippi its limits can only be changed by a legislative act; on the east side of that river it will continue to embrace only those sections of country not within any State to which the Indian title shall not be extinguished. The effect of the extinguishment of the Indian title to any portion of it, will be the exclusion of such portion from the Indian country. The limits of the Indian country will thus be rendered at all times obvious and certain. By the intercourse act of 1802, the boundary of the Indian country was a line of metes and bounds, variable from time to time by treaties. And, from the multiplicity of those treaties, it is now somewhat difficult to ascertain what, at any given period, was the boundary or extent of the Indian country. (P. 10.)

H. Rept. No. 474, 23d Cong., 1st sess., vol. 4, May 20, 1834.

⁵⁷ It was early held that lands in territorial status to which Indian title had not been extinguished and which were exempted by treaty or statute from state jurisdiction remain Indian country within the meaning of the 1834 Act, notwithstanding the admission of the state into the Union. *United States v. Bridleman*, 7 Fed. 894 (D. C. Ore. 1881).

⁵⁸ Op. cit.

⁵⁹ R. S. § 5596; *Donnelly v. United States*, 228 U. S. 243, 268 (1913).

⁶⁰ Act of March 27, 1854, 10 Stat. 269, 270; Act of February 18, 1875, 18 Stat. 316, 318, R. S. § 2146, 25 U. S. C. 218. For statutes making it a criminal offense to introduce liquor into "Indian country" see Chapter 18, sec. 3.

7

Notwithstanding the repeal of section 1 of the Act of 1834,⁶¹ the Supreme Court, when called upon to determine whether certain land was Indian country, applied in a number of instances the definition contained therein.⁶²

The first case⁶³ to reach the Supreme Court after the repeal of section 1 of the 1834 act involved the legality of the seizure of liquor by a military officer under the authority contained in the Act of 1834, as amended by the Act of 1864. The legality of the seizure depended on whether or not it was made in Indian country, the locus being at a point within the territory of Dakota. In an unusual opinion the Court, *per Mr. Justice Miller*, made the following observations:

Notwithstanding the immense changes which have since taken place in the vast region covered by the act of 1834, by the extinguishment of Indian titles, the creation of States and the formation of territorial governments, Congress has not thought it necessary to make any new definition of Indian country. Yet during all this time a large body of laws has been in existence, whose operation was confined to the Indian country, whatever that may be. And men have been punished by death, by fine, and by imprisonment, of which the courts who so punished them had no jurisdiction, if the offences were not committed in the Indian country as established by law. These facts afford the strongest presumption that the Congress of the United States, and the judges who administered those laws, must have found in the definition of Indian country, in the act of 1834, such an adaptability to the altered circumstances of what was then Indian country as to enable them to ascertain what it was at any time since then. (P. 207.)

After analyzing the definition as contained in section 1 of the 1834 Act the court further said:

* * * if the section be read as describing lands west of the Mississippi, outside of the States of Louisiana and Missouri, and of the Territory of Arkansas, and lands east of the Mississippi not included in any State, but lands alone to which the Indian title has not been extinguished, we have a description of the Indian country which was good then, and which is good now, and which is capable of easy application at any time.

It follows from this that all the country described by the act of 1834 as Indian country remains Indian country so long as the Indians retain their original title to the soil, and ceases to be Indian country whenever they lose that title, in the absence of any different provision by treaty or by act of Congress. (Pp. 208-209.)

In following the Bates decision, the courts have held that reservation lands to which Indian title has not been extinguished come within the definition of Indian country as contained in the 1834 Act, whether situated within a territory⁶⁴ or state.⁶⁵

Ordinarily, Indian title is extinguished by cession under treaty or act of Congress, and the land ceases to be Indian country when the cession becomes effective.⁶⁶ Where the land, however, is held by the United States in trust, to be sold for the

benefit of the Indian tribe, the courts have held that it remains "Indian land" until actually sold.⁶⁷

The first important extension of the rule laid down in the Bates case occurred in 1913 in the case of *Donnelly v. United States*,⁶⁸ which involved the question of whether the jurisdiction of the United States extended to the crime of murder committed on an executive-order Indian reservation. In holding that federal criminal law was applicable, the court said:

> It is contended for plaintiff in error that the term "Indian country" is confined to lands to which the Indians retain their original right of possession, and is not applicable to those set apart as an Indian reservation out of the public domain, and not previously occupied by the Indians.

* * * In the Indian Intercourse Act of June 30, 1834, 4 Stat. 729, c. 161, the first section defined the "Indian country" for the purposes of that act. But this section was not reenacted in the Revised Statutes, and it was therefore repealed by § 55'6, Rev. Stat. Ex parte Crow Dog, 109 U. S. 556, 561; *United States v. LeBris*, 121 U. S. 278, 280; *Clairmont v. United States*, 225 U. S. 551, 557. Under these decisions the definition as contained in the act of 1824 may still "be referred to in connection with the provisions of its original context that remain in force, and may be considered in connection with the changes which have taken place in our situation, with a view of determining from time to time what must be regarded as Indian country where it is spoken of in the statutes." With reference to country that was formerly subject to the Indian occupancy, the cases cited furnish a criterion for determining what is "Indian country." But "the changes which have taken place in our situation" are so numerous and so material, that the term cannot now be confined to land formerly held by the Indians, and to which their title remains unextinguished. And, in our judgment, nothing can more appropriately be deemed "Indian country," within the meaning of those provisions of the Revised Statutes that relate to the regulation of the Indians and the government of the Indian country, than a tract of land that, being a part of the public domain, is lawfully set apart as an Indian reservation. (P. 268-269.)

In the same year, the Supreme Court in the case of *United States v. Sandoval*⁶⁷ held that the lands of the Pueblo Indians come within the definition of Indian country for the purpose of federal liquor regulation. The Pueblo lands were not, strictly speaking, a reservation, but were lands held by communal ownership in fee simple. It would seem that the term Indian country as applied to the Pueblos means any lands occupied by "distinctly Indian communities" recognized and treated by the Government as "dependent communities" entitled to its protection.⁶⁸

The foregoing decisions are concerned with lands in tribal tenure. While the Supreme Court in the Donnelly Case eliminated the necessity for original tribal title as a condition to the application of federal criminal law, it failed to consider the applicability of the category of Indian country to the individual Indian holdings.

Under the practice of allotting lands in severalty to individual Indians, title to the allotted land was held in trust by the Government for the benefit of the allottee, or vested in the

⁶¹ 4 Stat. 729, 733.

⁶² *Bates v. Clark*, 95 U. S. 204 (1877); *Ex Parte Crow Dog*, 109 U. S. 556 (1883); *United States v. LeBris*, 121 U. S. 278 (1887); *Clairmont v. United States*, 225 U. S. 551 (1912).

⁶³ *Bates v. Clark*, 95 U. S. 204 (1887).

⁶⁴ *Ex Parte Crow Dog*, 109 U. S. 556 (1883).

⁶⁵ *United States v. LeBris*, 121 U. S. 278 (1887). Cf. *United States v. Forty Three Gallons of Whiskey*, 108 U. S. 491 (1883) (holding that, by statute, c d d Indian lands may remain Indian country for the purpose of enforcing federal liquor laws); *Clairmont v. United States*, 225 U. S. 551 (1912); *Dick v. United States*, 208 U. S. 340 (1908).

⁶⁶ *United States v. La Plant*, 200 Fed. 92 (D. C. S. D. 1911) (holding that land held under "mere occupancy" ceased to be Indian reservation land when ceded, even before sale to private parties); *United States v. Myers*, 206 Fed. 387 (C. A. 8, 1913).

⁶⁷ *Ash Sheep Co. v. United States*, 252 U. S. 159 (1900), affg 250 Fed. 591 (C. A. 9, 1918), and 254 Fed. 59 (C. A. 9, 1918). And see Chapter 15, sec. 21.

⁶⁸ 228 U. S. 243 (1913). Accord: *Pronovost v. United States*, 232 U. S. 487 (1914). ("An Indian reservation is Indian country.")

⁶⁹ 231 U. S. 28 (1913).

⁷⁰ For a fuller discussion of this case see Chapter 20, sec. 4. In holding that jurisdiction to punish the offense of larceny committed within a Pueblo resided in the Federal Government, the court defined Indian country as "any unceded lands owned or occupied by an Indian nation or tribe of nations." *United States v. Chavez*, 290 U. S. 357 (1933).

8

allottee subject to a restraint against alienation. Obviously, in either case tribal title is not involved.

By virtue of a series of murders committed on allotted lands, the Supreme Court was called upon to decide whether such lands were Indian country for the purpose of federal criminal jurisdiction. In the case of *United States v. Pelican*,⁷¹ a case involving the murder of an Indian upon a trust allotment, the court held that trust allotments retain, during the trust period, a distinctive Indian character, being devoted to "Indian occupancy under the limitations imposed by federal legislation," and that they were embraced within the term "Indian country."

Thereafter in *United States v. Ramsey*⁷² Indian country was held to include a restricted allotment as well, the court saying:

> The sole question for our determination, therefore, is whether the place of the crime is Indian country within the meaning of § 2145. The place is a tract of land constituting an Indian allotment, carved out of the Osage Indian reservation and conveyed in fee to the allottee named in the indictment, subject to a restriction against alienation for a period of 25 years. That period has not elapsed, nor has the allottee ever received a certificate of competency authorizing her to sell. (P. 470.)

* * * it would be quite unreasonable to attribute to Congress an intention to extend the protection of the criminal law to an Indian upon a trust allotment and withhold it from one upon a restricted allotment; and we find nothing in the nature of the subject matter or in the words of the statute which would justify us in applying the term Indian country to one and not to the other. (Pp. 471-472.)

Thus, the application of Federal criminal law is extended to cover lands to which the tribal title has been extinguished and title has been vested in an individual.

The last important step in the application of Federal criminal law to lands in tribal tenure has been to extend it to lands, wherever situated, which have been purchased by the Federal Government and set apart for Indian occupancy.

In this connection it is well to note the illuminating opinion of Mr. Justice Black in the case of *United States v. McGowan*,⁷³ holding that Indian country comprises lands wherever situated, which have been validly set apart for the use and occupancy of Indians. The Court declared:

> The Reno Indian Colony is composed of several hundred Indians residing on a tract of 28.38 acres of land owned by the United States and purchased out of funds appropriated by Congress in 1917 and in 1926. The purpose of Congress in creating this colony was to provide lands for needy Indians scattered over the State of Nevada, and to equip and supervise these Indians in establishing a permanent settlement.

> The words "Indian country" have appeared in the statutes relating to Indians for more than a century. We must consider "the changes which have taken place in our situation, with a view of determining from time to time what must be regarded as Indian country where it is spoken of in the statutes." Also, due regard must be given to the fact that from an early period of our history, the Government has prescribed severe penalties to enforce laws regulating the sale of liquor on lands occupied by Indians under government supervision. Indians of the Reno Colony have been established in homes under the supervision and guardianship of the United States. The policy of Congress, uniformly enforced through the decisions of this Court, has been to regulate the liquor traffic with Indians occupying such a settlement. This protection is extended by the United States "over all dependent Indian communities within its borders, whether within its original territory or territory subsequently acquired, and whether within or without the limits of a State."

The fundamental consideration of both Congress and the Department of the Interior in establishing this colony has

been the protection of a dependent people. Indians in this colony have been afforded the same protection by the government as that given Indians in other settlements known as "reservations." Congress alone has the right to determine the manner in which this country's guardianship over the Indians shall be carried out, and it is immaterial whether Congress designates a settlement as a "reservation" or "colony."

The Reno Colony has been validly set apart for the use of the Indians. It is under the superintendence of the Government. The Government retains title to the lands which it permits the Indians to occupy.

When we view the facts of this case in the light of the relationship which has long existed between the Government and the Indians—and which continues to date—it is not reasonably possible to draw any distinction between this Indian "colony" and "Indian country." We conclude that § 247 of Title 25, *supra*, does apply to the Reno Colony. (Pp. 537-539.)⁷⁴

The foregoing decisions leave open the question of whether an allotment within the exterior boundaries of an Indian reservation which is held by the allottee in fee simple may be subject to the application of federal criminal law and tribal law, or whether such land is subject to the exclusive jurisdiction of the state.⁷⁵

Whether land acquired by the United States and used for Indian purposes which do not involve Indian occupancy right, e. g., school, hospital, or agency sites not within a reservation, are "Indian country" is a question which has not been definitely settled by any court decision. Administrative practices and rulings, however, indicate that such lands are not considered "Indian country."⁷⁶

⁷⁴ It has been indicated that in the light of the McGowan case lands purchased under the Indian Reorganization Act (Act of June 18, 1934, 48 Stat. 984) not yet proclaimed a reservation or added to an existing reservation, are purchased for the purpose of being Indian reservations and that therefore the Federal Government has law and order jurisdiction over the Indians on such purchased lands pending the formal declaration of their reservation status. Memo. Sol. I. D., February 17, 1939.

⁷⁵ See Chapter 18.

⁷⁶ The Solicitor for the Interior Department, after analyzing the McGowan case, commented:

> A legal situation similar to that presented by the Reno Indian colony has occurred in the case of some of the abandoned military reservations which were turned over to this Department for Indian school purposes under the act of July 31, 1882 (22 Stat. 181, 25 U. S. C. A. sec. 276), and which have been accepted as Indian reservations. In these instances title to the land was held by the United States without any formal trust designation, but the land was occupied by Indians in those occupancy rights came to be recognized by Congress and by the Department. Ex-ante approval of the Fort Bridgwell and other reserves was expressly referred to the rights of the Indians in the reservations. (See act of January 27, 1913, 37 Stat. 652 and act of June 25, 1910, 36 Stat. 855, 858.) An- other example is the Fort Totten Reservation which was recognized in the act of April 27, 1904 (33 Stat. 319) as part of the Davis Lake Indian Reservation and belonging to the Indians residing on the reservation. In the case of LaDuke v. Mead, 45 N. D. 349, 177 N. W. 673, the court reviewed the history of this military reservation devoted to Indian school purposes and acknowledged the fact that it might be considered an "Indian reservation."

These examples demonstrate that lands held by the United States without a declaration of trust and used for school or other institutional purposes may be considered Indian reservations where Indian communities have occupancy rights in the land. They point the distinction between this type of land and lands held exclusively by the United States for institutional purposes where there are no Indian residents nor Indian occupancy rights. The latter class of lands is best illustrated by the nonreservation schools and hospitals which the Department has itself not classified as Indian reservations. (Cf. Handbook of October 15, 1929. "General Data concerning Indian Reservations.")

Another way of demonstrating this conclusion is by reference to the general proposition that Indian country is country where not only Federal laws but also Indian laws and customs apply. It is apparent that Indian laws apply only in areas occupied by Indian groups and communities and not to lands held for Federal institutions in Pierre, Phoenix, or any other non-Indian community.

A brief, my conclusion is that lands held by the United States and pure assets for the purpose of establishing Federal institutions for Indian welfare are not Indian country nor Indian reservations unless an Indian tribe or group has occupancy rights in the land. Such lands may be "reservations of the United States" as, for example, that term is used in right-of-way statutes (Memo. Solicitor, I. D., July 1, 1938), but they would not be "Indian reservations."

⁷³ 232 U. S. 442 (1914). Cf. *United States v. Sutton*, 215 U. S. 291 (1909); *Hallowell v. United States*, 221 U. S. 317 (1911); *Es Parte Van Moore*, 221 Fed. 954 (D. C. S. D. 1915).

⁷² 271 U. S. 467 (1926).

⁷⁰ 302 U. S. 535 (1938).

Memo. Sol. I. D., July 9, 1940.

CHAPTER 2

THE OFFICE OF INDIAN AFFAIRS

TABLE OF CONTENTS

<table><thead><tr><th></th><th>Page</th><th>Section 2—Continued.</th><th>Page</th></tr></thead><tbody><tr><td>Section 1. The development of the Indian Service</td><td>9</td><td>D. The period from 1877 to 1904</td><td>20</td></tr><tr><td>A. Establishment</td><td>9</td><td>E. The period from 1905 to 1928</td><td>24</td></tr><tr><td>B. Development</td><td>10</td><td>F. The period from 1929 to 1939</td><td>26</td></tr><tr><td>C. List of commissioners</td><td>11</td><td>G. Historical retrospect</td><td>28</td></tr><tr><td>Section 2. The development of Indian Service policies</td><td>12</td><td>Section 3. The administration of the Indian Service today</td><td>29</td></tr><tr><td>A. The period from 1825 to 1850</td><td>12</td><td>A. Organization and Activities</td><td>29</td></tr><tr><td>B. The period from 1851 to 1867</td><td>14</td><td>B. Personnel</td><td>31</td></tr><tr><td>C. The period from 1868 to 1876</td><td>17</td><td>C. Cooperation with Other Agencies</td><td>32</td></tr></tbody></table>

SECTION 1. THE DEVELOPMENT OF THE INDIAN SERVICE

A. ESTABLISHMENT

The relations of the United States with the Indians generally have been through designated administrative agencies, and it is therefore important to examine the structure, guiding policy, and manner of functioning of these agencies at various periods.

As a general rule, the Crown and the colonies regulated intercourse between their own subjects and the Indians, but made no attempt to govern the internal relations of Indian tribes.¹

After the French and Indian War, and prior to the adoption of the Constitution, two superintendencies of Indian affairs were created—one for the northern and one for the southern colonies. The superintendents were in effect ambassadors, a role which to a limited extent superintendents fill today. Their duties consisted of observing events, negotiating treaties, and generally keeping peace between Indians and the border settlers.²

On July 12, 1775,³ the Continental Congress, as one of its first acts, and exercising definite governmental power for all the colonies, declared its jurisdiction over Indian tribes by creating three departments of Indian affairs—northern, southem, and middle; at the head of each were placed commissioners, five for the southern, three (later four)⁴ for the northern, and three for the middle department. Their duties were "* * * to treat with the Indians * * * in order to preserve peace and friendship with the said Indians and to prevent their taking any part in the present commotions."⁵ The duties of the commissioners did not differ from those of the colonial superintendents but their status as official representatives of a new government, not the Crown, did.

The importance of these offices is indicated by the fact that the commissioners of the middle department unanimously elected on July 12, 1775, were Benjamin Franklin, Patrick Henry, and James Wilson.⁶

By a general ordinance for the regulation of Indian affairs of August 7, 1786,⁷ the Congress of the Confederation followed the colonial precedent and established two departments—the northern, north of the Ohio River, and west of the Hudson River, and the southern, south of the Ohio River. At the head of each was placed a superintendent under the control of and reporting to the Secretary of War. Each had power to grant licenses to trade and live with the Indians.

This ordinance remained partially in force after the adoption of the Constitution of the United States.⁸

On August 7, 1789,⁹ early in the first Congress, the War Department was established, upon whose Secretary devolved all matters relative to Indian affairs as were "* * * entrusted to him by the President of the United States, agreeably to the Constitution * * *."

The first Congress and the first President recognized the need for remedying a problem of conflict of Indian and white interests, serious even then.¹⁰

On August 23, 1789,¹¹ 5 months after the first Congress convened, it appropriated $20,000 for "negotiating and treating with the Indian tribes," the first of a long series of appropriations for that purpose.

On September 11, 1789,¹² in an early act establishing the salaries of executive officers of the Government, Congress began the policy of making the governor of a territory superintendent of Indian affairs in that jurisdiction by appropriating $2,000 to "the Governor of the western territory, for his salary as such, and for

¹ Schmeckebier, The Office of Indian Affairs, Its History and Origin (1927), p. 12.

² *Ibid.*

³ Jour. Cont. Cong. (Library of Congress ed.), vol. II, p. 175.

⁴ *Ibid.*, p. 183.

⁵ *Ibid.*, p. 175.

⁶ *Ibid.*, p. 183.

267785—41—3

⁷ J. Jur. Cont. Cong. (Library of Congress ed.), vol. 31, p. 491.

⁸ The Act of September 11, 1789, 1 Stat. 67, 68, refers to "* * * superintendent of Indian affairs in the northern department * * *" The Intercourse Act of July 22, 1790, 1 Stat. 137, mentions "* * * the superintendent of the department * * *".

⁹ Act of August 7, 1789, 1 Stat. 49, 50.

¹⁰ See Schmeckebier, op. cit., pp. 18-19 for Washington's statement to the Senate on broken treaties: "* * * the treaty with the Cherokees has been entirely violated by the disorderly white people on the frontiers of North Carolina." (Annals of Congress, 1st Cong., 1st sess., p. 66).

¹¹ Act of August 20, 1789, 1 Stat. 54.

¹² Act of September 11, 1789, 1 Stat. 67, 68.

9

10

discharging the duties of superintendent of Indian affairs in the northern department * * *."¹⁵

In 1790, Congress, exercising its power under the commerce clause of the Constitution, passed the first act "* * * to regulate trade and intercourse with the Indian tribes"¹⁶ which provided for licensing of Indian traders, and conferred extensive regulatory powers on the President. This temporary act was renewed with modifications until 1802 when the first permanent Intercourse Act was passed.¹⁷

The first specific appropriation for Indian affairs appears in the Act of December 23, 1791.¹⁸ The sum of $39,424.71 was appropriated "For defraying all expenses incident to the Indian department," authorized by law, * * *."

The Treasury Department was given responsibility for the purchase of Indian goods as well as other War Department supplies by the Act of May 8, 1792.¹⁹

Trading houses under Government ownership were maintained from 1796²⁰ to 1822.²¹ Their function was to supply the Indians with necessary goods at a fair price, and offer a fair price for their furs in exchange.²² The agents were appointed by the President and responsible to him. Their accounts were transmitted to the Secretary of the Treasury.

The office of Superintendent of Indian Trade was set up in 1806.²³ The superintendent, like the agent for each trading house, was appointed by the President. His duties were, among other things, "* * * to purchase and take charge of all goods intended for trade with the Indian nations * * * and to transmit the same to such places as he shall be directed by the President."²³

After the abolition of the office of Superintendent of Indian Trade in 1822,²⁴ Secretary of War Calhoun created the Bureau of Indian Affairs by order of March 11, 1824.²⁵ and placed at its head Thomas L. McKenney who had formerly been superintendent of Indian trade. His duties included the administration of the

civilization fund²⁶ under departmental regulations, the examination of claims arising out of laws regulating intercourse with Indian tribes, and routine office correspondence.²⁷

His staff consisted of a chief clerk and one assistant.²⁸ His representatives in the field included superintendents, agents, and subagents.²⁹

## B. DEVELOPMENT

The period between 1824 and 1832, when the statutory office of Commissioner of Indian Affairs in the War Department was established, appears to have been one of confusion in the Bureau of Indian Affairs.³⁰

By Act of July 9, 1832,³¹ Congress authorized the President to appoint, with the consent of the Senate, a Commissioner of Indian Affairs who was to have "* * * the direction and management of all Indian affairs, and of all matters arising out of Indian relations * * *." He was under the direction of the Secretary of War and subject to the regulations prescribed by the President.

Two years later the Act of June 30, 1834,³² since considered the organic law of the Indian Office,²¹ was passed "to provide for the organization of the department of Indian affairs." This statute established certain agencies and abolished others. It provided for the employment of subagents, interpreters, and other employees, the payment of annuities, the purchase and distribution of supplies, etc. It was in effect, a reorganization of the field force of the War Department having charge of Indian affairs,³³ and in no way altered the power of the Secretary of War or the Commissioner,³⁴ or changed the status of the Bureau of Indian Affairs in the War Department.³⁵

Subsequent appropriation acts provided for the hiring of additional personnel.³⁶

Under section 5 of the Act of March 3, 1849,³⁷ by which the Home Department of the Interior was established, the Bureau

¹⁸ As new territories were created, the governor was often made, ex officio, superintendent of Indian affairs, a position which he generally held until the territory became a state; in some cases, however, the duties of the superintendent were transferred before statehood, to one of the general superintendencies in the Indian Service or to the Washington Office. (Schmeckeberger, op. cit., p. 19.)

In 1867, at the time the Indian Peace Commission was created (Act of July 20, 1867, 15 Stat. 17) there were four territories whose governors were also superintendents of Indian affairs, ex officio—Colorado, Dakota, Idaho, Montana (Schmeckeberger, op. cit., p. 52). The Peace Commission in its report strongly urged that those governors be divested of their duties as superintendent. (Report of Commissioner of Indian Affairs (1868) p. 48.)

¹⁹ Act of July 22, 1790, 1 Stat. 137, in force for 2 years.

²⁰ Act of March 30, 1802, 2 Stat. 139. For a summary of these acts, see Chapter 4, secs. 2 and 3. See also Chapter 16.

²¹ 1 Stat. 226, 228.

²² This is the first mention in an appropriation act of the existence of an "Indian department."

²³ 1 Stat. 279.

²⁴ Act of April 18, 1796, 1 Stat. 452. This act was a temporary measure reenacted every 2 or 3 years up to the abolition of Government trading houses in 1822. See Chapter 16.

²⁵ Abolished by Act of May 6, 1822, 3 Stat. 679.

²⁶ In several of his annual addresses to Congress, Washington had strongly urged the establishment of trading houses by the Government, in order to protect the Indians from the practices of private traders. * * * (Schmeckeberger, op. cit., p. 23. See also pp. 20-22.)

²⁷ Act of April 21, 1806, 2 Stat. 402.

²⁸ Ibid., sec. 2. Appropriation acts indicate the expansion of the office of Indian trade by providing for compensation of additional clerks. E. g., Act of March 3, 1809, 2 Stat. 544; Act of February 26, 1810, 2 Stat. 557, 559.

²⁹ Act of May 6, 1822, 3 Stat. 679.

³⁰ H. Doc. No. 146, 19th Cong., 1st sess., p. 6.

²⁷ Act of March 3, 1819, 3 Stat. 516, provided a permanent annual appropriation of $10,000 for "* * * introducing among them [the Indians] the habits and arts of civilization * * *"; repealed by Act of February 14, 1873, c. 138, 17 Stat. 437, 461. For further discussion see Chapter 12, sec. 2A.

²⁸ Report of the Commissioner of Indian Affairs, 1932, p. 1. Hereafter in this chapter these reports will be referred to as "Rep. Comm. Ind. Aff."

²⁹ Schmeckeberger, op. cit., p. 27. Act of March 2, 1827, 4 Stat. 233, provides for one clerk in the Bureau of Indian Affairs. Act of February 12, 1828, 4 Stat. 247, for one clerk and messengers.

³⁰ Rep. Comm. Ind. Aff., 1932, p. 1.

³¹ Schmeckeberger, op. cit., p. 27 quotes Schoolcraft (Personal Memoirs, 1828, p. 319) on the "derangements in the fiscal affairs of the Indian department * * * there is a screw loose in the public machinery somewhere.

³² 4 Stat. 564, R. S. § 462-463, 25 U. S. C. 1-2.

The number of clerks was not specified. The Secretary of War was empowered to transfer or appoint the necessary number of clerks "* * * so as not to increase the number now employed * * *"²³ by the department.

²³ Ibid., sec. 2.

²⁴ 4 Stat. 735.

²⁵ See Rep. Comm. Ind. Aff., 1932, p. 1.

²⁶ Kinney, A Continent Lost—A Civilization Won (1937), p. 104.

²⁷ Schmeckeberger, op. cit., p. 28.

³⁰ Congress continued to pass appropriation acts for the "Indian department" as it had since 1791 (Act of December 23, 1791, 1 Stat. 226, 228; see e.g. Act of January 27, 1835, 4 Stat. 746), and to allow compensation for the Commissioner of Indian Affairs and his clerks (Act of March 3, 1835, 4 Stat. 760).

³¹ See e.g. Act of May 9, 1836, 5 Stat. 26; Joint Resolution of May 2, 1840, 5 Stat. 409.

³² 9 Stat. 395, R. S. § 441, 5 U. S. C. 485.

11

of Indian Affairs passed from military to civil control. This act provided: "That the Secretary of the Interior shall exercise the supervisory and appellate powers now exercised by the Secretary of the War Department, in relation to all the acts of the Commissioner of Indian Affairs."

The administration of Indian affairs was not markedly affected by this transfer, because as early as 1834 the office was essentially a civilian bureau.⁴⁰ Army officers continued to be employed occasionally as agents.⁴¹

After 1849 Congress debated for years the expediency of transferring the Indian Bureau back to the War Department.⁴² Constant fluctuations of responsibility between the two departments ensued.⁴³

⁴⁰ Administration of the Indian Office (Bureau of Municipal Research Publication No. 65) (1915), p. 13.

⁴¹ Schmeckebier, op. cit., p. 43. By Act of July 15, 1870, 16 Stat. 315, 319, Congress prohibited the appointment of the military officers to civil posts unless commissions were vacated.

However, the exception later made affecting Indian agencies appears to be a survival of the period of military control. By Act of July 13, 1892, c. 164, sec. 1, 27 Stat. 120; Act of July 1, 1898, c. 545, sec. 1, 30 Stat. 571, 573, R. S. § 2062, 25 U. S. C. 27.

The President may detail officers of the United States Army to act as Indian agents at such agencies as in the opinion of the President may require the presence of any Army officer, and while acting as Indian agents such officers shall be under the orders and direction of the Secretary of the Interior.

(From 25 U. S. C. 27).

⁴² Administration of the Indian Office (Bureau of Municipal Research Publication No. 65) (1915), p. 13; Schmeckebier, op. cit., pp. 50, 51.

In 1867, a commission appointed by Congress (Pub. Res. of March 3, 1865, 13 Stat. 572) to inquire into civil and military authority over Indians reported,

``
* * * The question whether the Indian bureau should be placed under the War Department or retained in the Department of the Interior is one of considerable importance, and both sides have very warm advocates.
* * (P. 6.)
```

(Sen. Rept. No. 156, 39th Cong., 2d sess., pp. 3-8.)

Commissioner of Indian Affairs Taylor in his report of 1868 gave 11 reasons for his vigorous opposition to the transfer. He held, among other things, that the professed Indian policy was peace, but transfer was tantamount to perpetual war.

``
* * * I cannot for the life of me perceive the propriety or the efficacy of employing the military instead of the civil deparments, unless it is intended to adopt the Mohammedan motto, and proclaim to these people "Death or the Koran." (P. 10.)
```

On January 7, 1868, the Peace Commission (appointed by Act of July 20, 1867, 15 Stat. 17) recommended that "* * * Indian affairs be committed to an independent bureau or department." (Rep. Comm. Ind. Aff., 1868, p. 48.) However, at the end of the same year (October 9, 1868) in a supplementary report to the President it stated,

``
* * * in the opinion of this commission the Bureau of Indian Affairs should be transferred from the Department of the Interior to the Department of War.
```

(Rep. Comm. Ind. Aff., 1868, p. 372.)

⁴³ Administration of the Indian Office (Bureau of Municipal Research Publication No. 65) (1915), p. 13.

Excerpts from official reports reveal this conflict. E. g., Commissioner Manypenny in his report for 1854 states:

Occasions frequently arise in our intercourse with the Indians requiring the employment of force, * * *. The Indian Bureau would be relieved from embarrassment, and rendered more efficient, if, in such cases, the department had the direct control of the means necessary to execute its own orders. (P. 17.)

In Secretary of Interior Harlan's introduction to the Report of the Commissioner of Indian Affairs for 1865, he states that:

On taking charge of this department on the 15th day of May last, the relations of officers respectively engaged in the military and civil departments in the Indian country were in an unsatisfactory condition. A supposed conflict of jurisdiction and a want of confidence in each other led to mutual discriminations, whereby the success of military operations against hostile tribes and the execution of the policy of this department were seriously impeded. Upon conferring with the War Department, it was informally agreed that the agents and officers under the control of the Secretary of the Interior should hold no intercourse, except through the military authorities, with tribes of Indians against whom hostile measures were in progress; and that the military authorities

In 1869,⁴⁴ to correct mismanagement in the purchase and handling of Indian supplies, the Board of Indian Commissioners was created, to be appointed by, and report to, the President. It was composed of not more than 10 "men eminent for intelligence and philanthropy, to serve without pecuniary compensation * * *" and exercise joint control with the Secretary of the Interior over the appropriations in that act. By Act of July 15, 1870,⁴⁵ the Board was empowered "* * * to supervise all expenditures of money appropriated for the benefit of Indians * * * and to inspect all goods purchased for said Indians * * *" Although the Board was entirely independent of the Bureau of Indian Affairs, it studied and advised on important questions of Indian policy.⁴⁶

This Board was abolished by Executive Order 6145, May 25, 1933,⁴⁷ which provided that the Board's affairs be wound up by the Secretary of the Interior, and that its records, property, and personnel be transferred to, or remain under, his supervision.

By title 5, section 485, of the United States Code,⁴⁸ the Secretary of the Interior now has supervision over "* * * public business relating to * * * The Indians," and by title 25, section 2, of the United States Code,⁴⁹ the Commissioner of Indian affairs over "* * * the management of all Indian affairs and of all matters arising out of Indian relations * * *" under the direction of the Secretary of the Interior and according to regulations prescribed by the President.

### C. LIST OF COMMISSIONERS

Prior to 1832, the Secretary of War was chief officer in charge of Indian matters. From 1806 to 1822 he had the advice of the Superintendent of Indian Trade, and from 1824 to 1832 of the three successive heads of the new Bureau of Indian Affairs—Thomas L. McKenney (1824-30); Samuel S. Hamilton (1830-31); Elbert Herring (1831-32). Herring became first Commissioner of Indian Affairs in 1832.⁵⁰

In the 108 years following the establishment of the office of Commissioner of Indian Affairs, that post has been held by some 32 individuals representing a wide range of variation in their outlook upon the responsibilities and opportunities of that office. These individuals have set forth in the Commissioners' Annual Reports⁵¹ and in unofficial writings⁵² their views on the Indian question, and these expressions are in many ways the most useful guides to the variations of Government Indian policy.

In tracing prevailing policies for a particular period, the following list⁵³ of Commissioners of Indian Affairs, with the Secretaries and Presidents under whom they served, may prove useful:

should refrain from interference with such agents and officers in their relations with all other tribes, except to afford the necessary aid for the enforcement of the regulations of this department.
* * * (P. iv.)

⁴⁴ R. S. § 2039, 25 U. S. C. 21, derived from Act of April 10, 1869, 16 Stat. 13, 40, and Act of July 15, 1870, s.c. 3, 16 Stat. 335, 360. See Ryan v. United States, 8 C. Cls. 265 (1872).

⁴⁵ 16 Stat. 335, 360.

⁴⁶ Schmeckebier, op. cit., p. 57.

⁴⁷ See 25 U. S. C. 21.

⁴⁸ R. S. § 441, derived from Act of March 3, 1849, c. 108, 9 Stat. 395.

⁴⁹ R. S. § 463, derived from Act of July 9, 1832, c. 174, sec. 1, 4 Stat. 564 and Act of July 27, 1868, c. 259, sec. 1, 15 Stat. 228.

⁵⁰ Schmeckebier, op. cit., pp. 26-27; Kinney, op. cit., p. 102.

⁵¹ The heads of the Bureau of Indian Affairs also reported annually to the Secretary of War from 1824 to 1832.

⁵² Walker, The Indian Question (1874); Manypenny, Our Indian Wards (1880); Leupp, The Indian and His Problem (1910).

⁵³ Rep. Comm. Ind. Aff., 1932, pp. 1-2.

12

<table><thead><tr><th>Commissioner</th><th>Date</th><th>Secretary</th><th>President</th></tr></thead><tbody><tr><td>Herring, Elbert</td><td>July 10, 1832</td><td>Cass¹</td><td>Jackson.</td></tr><tr><td>Harris, Carey A</td><td>July 4, 1835</td><td>Cass¹ and Poinsett¹</td><td>Do.</td></tr><tr><td>Crawford, T. Hartley</td><td>Oct. 22, 1838</td><td>Poinsett¹ to Marcy ¹</td><td>Van Buren.</td></tr><tr><td>Medill, William</td><td>Oct. 28, 1845</td><td>Marcy¹ and Ewing¹</td><td>Polk.</td></tr><tr><td>Brown, Orlando</td><td>May 31, 1849</td><td>Ewing</td><td>Taylor.</td></tr><tr><td>Lea, Luke</td><td>July 1, 1850</td><td>Ewing to Stuart</td><td>Taylor and Fillmore.</td></tr><tr><td>Manypenny, George W.</td><td>Mar. 24, 1853</td><td>McClelland and Thompson</td><td>Pierce.</td></tr><tr><td>Denver, James W.</td><td>Apr. 17, 1857</td><td></td><td>Buchanan.</td></tr><tr><td>Mix, Charles E</td><td>June 14, 1858</td><td>do.</td><td>Do.</td></tr><tr><td>Denver, James W</td><td>Nov. 8, 1858</td><td>do.</td><td>Do.</td></tr><tr><td>Greenwood, Alfred B.</td><td>May 4, 1859</td><td>do.</td><td>Do.</td></tr><tr><td>Dale, William P</td><td>Mar. 13, 1861</td><td>Smith to Harlan</td><td>Lincoln.</td></tr><tr><td>Cooley, Dennis N.</td><td>July 10, 1865</td><td>Harlan and Browning</td><td>Johnson.</td></tr><tr><td>Bogy, Lewis V</td><td>Nov. 1, 1866</td><td>Browning</td><td>Do.</td></tr><tr><td>Taylor, Nathaniel G</td><td>Mar. 29, 1867</td><td>Browning and Cox</td><td>Do.</td></tr><tr><td>Parker, Ely S</td><td>Apr. 21, 1869</td><td>Cox and Delano</td><td>Grant.</td></tr></tbody></table>

¹ Secretaries of War.

² Ewing and all following, Secretaries of the Interior.

Commissioners of Indian Affairs—Continued

<table><thead><tr><th>Commissioner</th><th>Date</th><th>Secretary</th><th>President</th></tr></thead><tbody><tr><td>Walker, Francis A</td><td>Nov. 21, 1871</td><td>Delano</td><td>Do.</td></tr><tr><td>Smith, Edward P</td><td>Mar. 23, 1873</td><td>Delano and Chandler</td><td>Do.</td></tr><tr><td>Smith, John Q</td><td>Dec. 11, 1875</td><td>Chandler and Schurz</td><td>Do.</td></tr><tr><td>Hayt, Ezra A</td><td>Sept. 27, 1877</td><td>Schurz</td><td>Hayes.</td></tr><tr><td>Trowbridge, R. E</td><td>Mar. 15, 1887</td><td>do.</td><td>Do.</td></tr><tr><td>Prie, Hiram</td><td>May 4, 1881</td><td>Kirkwood and Teller</td><td>Garfield.</td></tr><tr><td>Atkins, John D. C</td><td>Mar. 21, 1885</td><td>Lamar</td><td>Cleveland.</td></tr><tr><td>Oberly, John H</td><td>Oct. 10, 1885</td><td>Vilas</td><td>Do.</td></tr><tr><td>Morgan, Thomas J</td><td>June 10, 1889</td><td>Noble</td><td>Harrison.</td></tr><tr><td>Browning, Daniel M</td><td>Apr. 17, 1893</td><td>Smith and Francis</td><td>Cleveland.</td></tr><tr><td>Jones, William A</td><td>May 3, 1897</td><td>Bliss and Hitchcock</td><td>McKinley.</td></tr><tr><td>Leupp, Francis E</td><td>Dec. 7, 1904</td><td>Hitchcock, Garfield and Ballinger.</td><td>Roosevelt.</td></tr><tr><td>Valentine, Robt. G</td><td>June 16, 1909</td><td>Ballinger, Fisher</td><td>Taft.</td></tr><tr><td>Sells, Cato</td><td>June 2, 1913</td><td>Lane and Payne</td><td>Wilson.</td></tr><tr><td>Burke, Charles H</td><td>Apr. 1, 1921</td><td>Fall, Work, West, Wilbur.</td><td>Harding, Coolidge.</td></tr><tr><td>Rhonds, Charles J</td><td>July 1, 1929</td><td>Wilbur</td><td>Hoover.</td></tr><tr><td>Collier, John</td><td>Apr. 21, 1933</td><td>Ickes</td><td>Roosevelt.</td></tr></tbody></table>

## SECTION 2. THE DEVELOPMENT OF INDIAN SERVICE POLICIES

The history of Indian Service policies is the story of the rise and decline of a system of paternalism for which it is difficult to find a parallel in American history. The Indian Service begins as a diplomatic service handling negotiations between the United States and the Indian nations and tribes, characterized by Chief Justice Marshall as "domestic dependent nations."⁶⁴ By a process of jurisdictional aggrandisement, on the one hand, and voluntary surrenders of tribal powers, on the other, the Indian Service reached the point where nearly every aspect of Indian life was subject to the almost uncontrolled discretion of Indian Service officials.⁶⁵ In recent years there has been a marked reversal of these tendencies.

The reports of various Commissioners of Indian Affairs give the most graphic chronological insight into changing administrative policies,

### A. THE PERIOD FROM 1825 TO 1850

In 1825 Thomas L. McKenney, as head of the new Bureau of Indian Affairs,⁶⁶ in his first brief reports⁶⁷ to the Secretary of War, wrote, regarding those Indians whose titles to land had been extinguished and who had elected to remove, that it was "* * * * *" the policy of the Government to guarantee to them lasting and undisturbed possession" of their new land beyond the boundaries of Missouri and Arkansas.

The extent to which this policy was carried into effect is elsewhere discussed.⁶⁸

In his lengthier report for 1826,⁶⁹ McKenney, in urging increased appropriations for the support of Indian schools,⁷⁰ was firmly convinced of—

* * * the vast benefits which the Indian children are deriving from these establishments; and which go further, in my opinion, towards securing our borders from bloodshed, and keeping the peace among the Indians themselves, and attaching them to us, than would the physical force of our Army, if employed exclusively towards the accomplishment of those objects.⁷¹

⁶⁴ See Chapter 14, sec. 6.

⁶⁵ A discussion of the subjects of Indian administrative power will be found in Chapters 5, 8, 11, 12, 15, 16, 17.

⁶⁶ The head of the Bureau of Indian Affairs was not denominated Commissioner until 1832.

⁶⁷ Annual Report for 1825, Office of Indian Affairs, p. 91.

⁶⁸ See Chapter 3, sec. 4E, and Chapter 15, sec. 5, 21.

⁶⁹ Annual Report for 1826, Office of Indian Affairs, p. 508.

⁷⁰ In the years immediately following, reports devote a section to the increase in school attendance as an indication of civilization.

⁷¹ Annual Report for 1826, Office of Indian Affairs, p. 508. Compare this early attitude regarding the use of the military, with that expressed by Commissioner Walker in 1872, infra.

McKenney early foresaw the problem of the returned student, and recommended that—

* * * as these youths are qualified to enter upon a course of civilized life, sections of land be given to them, and a suitable present to commence with, of agricultural or other implements suited to the occupations in which they may be disposed, respectively, to engage. They will then have become an "intermediate link between our own citizens, and our wandering neighbors, softening the shades of each, and enjoying the confidence of both."⁷²

Samuel S. Hamilton, in his only report⁷³ as head of the Bureau of Indian Affairs, recommended in 1830 that with "* * * * *" the increase of our population, and the consequent extension of our settlements, * * * * *" the act to regulate trade and intercourse with the Indian tribes, passed in 1802, be revised, and the line setting the Indian boundary by that act be redefined. This recommendation, repeated in 1831, was finally acted upon in the Intercourse Act of 1834.⁷⁴

Elbert Herring, who headed the Bureau of Indian Affairs for 1 year, and subsequently became its first Commissioner, recommended the Government's recent policy of removal as the only means of checking the complete disintegration of the Indian tribes.

* * * tribes numerous and powerful have disappeared from among us in a ratio of decrease, ominous to the existence of those that still remain, unless counteracted by the substitution of some principle sufficiently potent to check the tendencies to decay and dissolution. This salutary principle exists in the system of removal; of change of residence; of settlement in territories exclusively their own, and under the protection of the United States; connected with the benign influences of education and instruction in agriculture and the several mechanic arts, whereby social is distinguished from savage life.⁷⁵

In his report for 1832 as Commissioner of Indian Affairs, Herring again commends the policy of removal in exalted terms:

* * * In the consummation of this grand and sacred object rests the sole chance of averting Indian annihilation. Founded in pure and disinterested motives, may it meet the approval of heaven, by the complete attainment of its beneficent ends!⁷⁶

⁷² Ibid., p. 508.

⁷³ Annual Report for 1830, Superintendent of Indian Affairs, p. 163.

⁷⁴ Act of June 30, 1834, 4 Stat. 729. See sec. 1A, and fs. 17 and 18,

supra, and see Chapter 1, sec. 3; Chapter 4, sec. 6.

⁷⁵ Annual Report for 1831, Indian Bureau, p. 172.

⁷⁶ Annual Report for 1832, Office of Indian Affairs, p. 160.

13

In this report appears the first mention of vaccination as a health measure for the benefit of the Indians, and the employment of physicians by the Bureau.⁶⁷

In 1833 appears the first mention in Commissioners' reports of the need among Indian tribes for

* * * something, however simple, in the shape of a code of laws, suited to their wants, * * * devised and submitted for their adoption, to obviate the inconveniences, and secure the benefits incident thereto, in the relations that are springing up under the fostering care of the Government. * * *⁶⁸

Jacksonian policy⁶⁹ was reflected in the increasing emphasis in commissioners' reports on the use of the military to effect what began as voluntary removal. In his report for 1834, apropos of the failure of the Cherokee to date to sign a treaty of removal, Commissioner Herring wrote:

* * * Should occasion call for it, the military will be ordered out for the protection of those who decide on emigration, and of the emigrating officers of Government engaged in this hazardous and responsible service.⁷⁰

In 1835 he wrote:

There has been no intermission of exertion to induce the removal of the Cherokees to the west of the Mississippi, in conformity with the policy adopted by the Government * * *¹¹

In 1836 the new Commissioner of Indian Affairs, Carey A. Harris, wrote:

The removal of the Creek Indians, like that of the Seminoles, was made a military operation on the commission by them of hostile acts. * * *¹²

T. Hartley Crawford, in his first report as Commissioner of Indian Affairs for 1838,³³ apropos of removal, states that for the most part it has been peaceful, including that of the Cherokees. However, the "indisposition" of the Pottawatomies "to comply with their engagements" caused the agent

on the application of the white settlers, to call upon the Governor of Indiana for a military force to repress any outbreak that might occur. The Governor authorized General John Tipton to accept the services of one hundred volunteers; who raised them, and used their services in the collection and removal of the Pottawatomies.³⁴

Commissioner Crawford urged that some evidence of title to lands granted to them in the West be given Indians on removal.³⁵

⁶⁷ *Ibid.*, p. 162. For a discussion of federal health services, see Chapter 12, sec. 3.

⁶⁸ Rep. Comm. Ind. Aff., 1833, p. 186. Some of the tribes, notably the Five Civilized Tribes, early adopted their own code of laws. In 1882, Commissioner Price tells of the preparation and submission by the Pottawatomies of their own code of laws to the department for approval. (Rep. Comm. Ind. Aff., 1882, p. VIII.)

⁶⁹ See Chapter 3, sec. 4E. Commenting on the situation that arose with the election of President Jackson, Schmeckebler writes:

> The election of Jackson to the Presidency in 1828 resulted in a definite change in the Indian policy in regard to removal. Both Monroe and Adams had adopted the policy of voluntary emigration, but Jackson was determined to use force if necessary. A mere reading of the statutes and the treaties would indicate no definite change, but when the method of obtaining the treaties is taken into consideration it is easy to see that the government was determined to use any pressure necessary to accomplish its ends.

(Schmeckebler, *op. cit.*, p. 33.)

⁷⁰ Rep. Comm. Ind. Aff., 1834, p. 243.

⁷¹ Rep. Comm. Ind. Aff., 1835, p. 262.

⁷² Rep. Comm. Ind. Aff., 1836, p. 368.

⁷³ Rep. Comm. Ind. Aff., 1838.

⁷⁴ *Ibid.*, p. 413.

⁷⁵ *Ibid.*, p. 414.

In the field of education he reports:

The principal lever by which Indians are to be lifted out of the mire of folly and vice in which they are sunk, is education. * * * To teach a savage man to read, while he continues a savage in all else, is to throw seed on a rock. * * * Manual-labor schools are what the Indian condition calls for.⁷⁶

The educational policy of civilizing the Indians through manual training in agriculture and the "mechanic arts" became the accepted policy of the Indian office.⁷⁷

The problem of the Indian field agent who becomes too closely identified with a particular tribe attracted concern. "Is there not some hazard of his becoming attached to their particular interests * * *?"⁷⁸ "By transferring them from one position to another," Commissioner Crawford wrote, "as frequently as may be regarded proper, they will be cut off from the strong enlistment of their feelings * * *."⁷⁹

Vaccination for smallpox during an epidemic and medical services supplied by the Bureau of Indian Affairs are again mentioned.⁸⁰

Commissioner Crawford, like Commissioner Herring,⁸¹ recommended a code of laws for the government of the Western tribes, but added: "* * * this, as it seems to me, indispensable step to their advancement in civilization cannot be taken without their own consent."⁸²

Like many commissioners before and after him, Commissioner Crawford felt that the policy of allotment was the only proper policy for the Government to pursue. "Common property and civilization cannot coexist."⁸³

Of a proposed plan, for a confederation of Indian tribes west of the Mississippi, he held that "* * * prudential considerations would seem to require that they should be kept distinct from each other."⁸⁴

For the next few years, commissioners report "progress" in removal, treaty-making and education in the manual arts. They begin to include "accompanying documents" prepared by field personnel.

Commissioner Medill in his report for 1847 told of the need for a "statistical account of the various tribes, including a digest of their industrial means, peculiar habits, resources, and employments of every kind * * *" which would "* * * materially aid the Department in suggesting the most suitable measures for their improvement."⁸⁵ This need was reiterated and various attempts were made to fill it.⁸⁶

⁷⁶ *Ibid.*, pp. 420-421. Many later treaties contained a specific provision for the establishment of manual labor schools.

⁷⁷ See Chapter 12, sec. 2.

⁷⁸ Rep. Comm. Ind. Aff., 1838, p. 422.

⁷⁹ *Ibid*.

⁸⁰ *Ibid.*, p. 424. Commissioner Crawford states that in the northwest alone, at least 17,200 deaths occurred. Three thousand persons were vaccinated in the Columbia River region.

⁸¹ See *supra*, and Rep. Comm. Ind. Aff., 1833, p. 186.

⁸² Rep. Comm. Ind. Aff., 1838, p. 424.

⁸³ *Ibid.*, p. 425. See Chapter 11, sec. 1.

⁸⁳ *Ibid.*, p. 426.

⁸⁴ Rep. Comm. Ind. Aff., 1847, pp. 747-748.

⁸⁵ *E. g.*, Act of June 27, 1846, 9 Stat. 20, 34, provided for a survey, but failed to provide the necessary means to execute it; Act of March 3, 1847, sec. 5, 9 Stat. 203, 204, likewise provided for a census to illustrate "* * * the history, the present condition, and future prospects of the Indian tribes of the United States." At the time of Commissioner Medill's report, results were being returned by agents and subagents "* * * of most interesting and satisfactory character" (Rep. Comm. Ind. Aff., 1847, p. 748). Some 12 years later, in 1859, Secretary of the Interior Thompson wrote:

> The statistical information in the possession of the Indian office is too meager and vague to enable us to determine with

14

The role that was played by missionary groups through their teachers and schools was clearly stated by Commissioner Medill:

> In every system which has been adopted for promoting the cause of education among the Indians, the Department has found its most efficient and faithful auxiliaries and laborers in the societies of the several Christian denominations * * *.

Commissioner Orlando Brown, in addition to various reports on the status of removal, including a full report on the proposed removal of the Seminoles to be "* * *" conducted by the military alone. * * *" made recommendations for various changes in policy: That (1) "* * *" in all treaties hereafter to be made with the Indians, the policy of giving goods, farming utensils, provisions, etc., in lieu of money, be insisted on * * *" as far as practicable;⁹⁰ that (2) Congress take steps for the ultimate participation in the national legislation of those Indians qualified or soon to be so;⁹¹ that (3) there be made various changes in personnel: the number of superintendents be increased from 5 to 7,⁹² the duties of agent and superintendent, and superintendent and governor of a Territory be separated,⁹³ the position of subagent (salary $750 per annum, with duties often equal to those of agent) be abolished⁹⁴ and that of minor agent, with a salary lower than that of agent ($1,500 per annum) where the responsibilities and Indians are fewer, be established.⁹⁵

## B. THE PERIOD FROM 1851 TO 1867

The question of the status of the Indian, and the technique by which he might be civilized, had not been answered satisfactorily in 1851 when Commissioner Luke Lea wrote:

> On the general subject of the civilization of the Indians, many and diversified opinions have been put forth; but, unfortunately, like the race to which they relate, they are too wild to be of much utility. The great question, How shall the Indians be civilized? yet remains without a satisfactory answer. The magnitude of the subject, and the manifold difficulties inseparably connected with it, seem to have bewildered the minds of those who have attempted to give it the most thorough investigation. * * * I therefore leave the subject for the present, remarking, only, that any plan for the civilization of our Indians will, in my judgment, be fatally defective, if it do not provide, in the most efficient manner, first, for their concentration; secondly, for their domestication; and, thirdly, for their ultimate incorporation into the great body of our citizen population.⁹⁶

Commissioner Lea's recommendation that the Indians be concentrated was effectuated through the gradual diminution of the size of most Indian reservations. The plea for domestication had appeared in earlier reports, and was, in fact, the accepted practice of the Bureau of Indian Affairs at that time. The recommendation that Indians be ultimately incorporated into the citizenry of the country may mark a new departure from the theory and practice of removal and segregation. It apparently bore fruit in the Allotment Act,⁹⁷ with its provisions for citizenship and fee simple tenure of land.

> precision, the ratio of increase or decrease among the aboriginal population. * * *

(Excerpt, Report of Secretary of the Interior, 1859, p. 4, in Rep. Comm. Ind. Aff., 1859.)

⁹⁷ Rep. Comm. Ind. Aff., 1847, p. 749.

⁹⁸ Rep. Comm. Ind. Aff., 1849, pp. 939-941.

⁹⁹ *Ibid.*, p. 958.

¹⁰⁰ *Ibid.*

¹⁰¹ *Ibid.*, p. 953.

¹⁰² *Ibid.*, pp. 952, 953.

¹⁰³ *Ibid.*, pp. 954, 955.

¹⁰⁴ This would circumvent the limitation to 11, of full agents authorized by law (Rep. Comm. Ind. Aff., 1849, pp. 934, 955).

¹⁰⁵ Rep. Comm. Ind. Aff., 1851, pp. 12-13.

¹⁰⁶ Act of February 8, 1887, 24 Stat. 388. See Chapter 11.

In 1853, Commissioner Manypenny objected to the practice of permitting Indian tribes, engulfed in the stream of western migration, to retain portions of their tribal domains as reservations.

With but few exceptions, the Indians were opposed to selling any part of their lands, as announced in their replies to the speeches of the commissioner. Finally, however, many tribes expressed their willingness to sell, but on the condition that they could retain tribal reservations on their present tracts of land. * * *' The idea of retaining reservations, which seemed to be generally entertained, is not deemed to be consistent with their true interests, and every good influence ought to be exercised to enlighten them on the subject. If they dispose of their lands, no reservations should, if it can be avoided, be granted or allowed. There are some Indians in various tribes who are occupying farms, comfortably situated, and who are in such an advanced state of civilization, that if they desired to remain, the privilege might well, and ought perhaps to be granted, and their farms in each case reserved for their homes. Such Indians would be qualified to enjoy the privileges of citizenship. But to make reservations for an entire tribe on the tract which it now owns, would, it is believed, be injurious to the future peace, prosperity, and advancement of these people. The commissioner, as far as he judged it prudent, endeavored to enlighten them on this point, and labored to convince them that it was not consistent with the true interest of themselves and their posterity that they should have tribal reservations within their present limits.¹⁰⁸

Commissioner Manypenny further urged the revision of the Intercourse Act of 1834⁹⁹ and the regulations promulgated thereunder, to meet changing conditions in Indian relations.

* * * A new code of regulations is greatly needed for this branch of the public service. That now in force was adopted many years since, and, in many particulars, has become obsolete or inapplicable, especially in our new and distant territories. The regulations now existing are based upon laws in force respecting Indian affairs, and the President has authority, under the act of June 30, 1831,¹⁰⁰ providing for the organization of the department of Indian Affairs, to prescribe such rules as he may think fit for carrying into effect its provisions.¹⁰¹

That plea is repeated by succeeding commissioners.

In his second annual report,¹⁰² Commissioner Manypenny foreseen a crisis in the whole removal policy, and urged its abandonment in favor of fixed and permanent settlements "thereafter not to be disturbed."

* * * By alternate persuasion and force, some of these tribes [in Kansas territory] have been removed, step by step, from mountain to valley, and from river to plain, until they have been pushed half-way across the continent. They can go no further; on the ground they now occupy the crisis must be met, and their future determined.¹⁰³

The wonderful growth of our distant possessions, and the rapid expansion of our population in every direction, will render it necessary, at no distant day, to restrict the limits of all the Indian tribes upon our frontiers, and cause them to be settled in fixed and permanent localities, thereafter not to be disturbed. The policy of removing Indian tribes from time to time, as the settlements approach their habitations and hunting-grounds, must be abandoned. The emigrants and settlers were formerly content to remain in the rear, and thrust the Indians before them into the wilderness; but now the white population overlaps the reservations and homes of the Indians, and is beginning

⁹⁹ Rep. Comm. Ind. Aff., 1853, p. 249.

¹⁰⁰ *Ibid.*, p. 250. See Commissioner Denver's report (1857), infra, of Indians being permitted to retain such tribal land.

¹⁰¹ Act of June 30, 1834, 4 Stat. 729.

¹⁰² Act of June 30, 1834, 4 Stat. 735.

¹⁰³ Rep. Comm. Ind. Aff., 1853, pp. 261-262.

¹⁰⁴ Rep. Comm. Ind. Aff., 1854.

¹⁰⁵ *Ibid.*, p. 10.

15

to inhabit the valleys and the mountains beyond; hence removal must cease, and the policy abandoned. * * *

To protect Indian funds from fraud, Commissioner Manypenny recommended that—

* * * All executory contracts of every kind and description, made by Indian tribes or bands with claim agents, attorneys, traders, or other persons, should be declared by law null and void, and an agent, interpreter, or other person, employed in or in any way connected with the Indian service, guilty of participation in transactions of the kind referred to, should be instantly dismissed and expelled from the Indian country; and all such attempts to injure and defraud the Indians, by whomsoever made or participated in, should be penal offences, punishable by fine and imprisonment. We have now penal laws to protect the Indians in the secure and unmolested possession of their lands, and also from demoralization by the introduction of liquor into their country, and the obligation is equally strong to protect them in a similar manner from the wrongs and injuries of such attempts to obtain possession of their funds.¹⁰⁵

Secretary of the Interior McClelland in 1854, apropos of treaty obligations, reiterates:

* * * The duty of the government is clear, and justice to the Indians requires that it should be faithfully discharged. Experience shows that much is gained by sacredly observing our plighted faith with these poor creatures, and every principle of justice and humanity prompts to a strict performance of our obligations.¹⁰⁶

Commissioner Denver, in 1857,¹⁰⁷ tells of the successful extinguishing of title to all lands owned by Indians west of Missouri and Iowa "* * * except such portions as were reserved for their future homes * * *".¹⁰⁸

Of Indians who have removed to

* * * large reservations of fertile and desirable land, entirely disproportioned to their wants for occupancy and support, * * *. Their reservations should be restricted so as to contain only sufficient land to afford them a comfortable support by actual cultivation, and should be properly divided and assigned to them, with the obligation to remain upon and cultivate the same.¹⁰⁹

Commissioner Denver urged discontinuance of the practice of distributing funds due to tribes in per capita payments to individual members. This practice, he thought, tended to break down the authority of the chiefs, and thus

* * * disorganizes and leaves them without a domestic government * * * The distribution of the money should be left to the chiefs, so far at least as to enable them to punish the lawless and unruly by withholding it from them * * *¹¹⁰

Commissioner Denver tells of the attempt by the Government to suppress the practice in California of kidnapping Indian children and selling them for servants.¹¹¹

¹⁰⁴ *Ibid.*, p. 17.

¹⁰⁵ *Ibid.*, pp. 21-22. See also extract from Report of Secretary of Interior, 1862, p. 13, in Rep. Comm. Ind. Aff., 1862.

All contracts with them should be prohibited, and all promises or obligations made by them should be declared void. Legislation along the lines urged was enacted in 1871. See Chapter 14, sec. 5.

¹⁰⁹ Extract from Annual Report of the Secretary of Interior, 1854, p. 41, in Rep. Comm. of Ind. Aff., 1854.

¹¹⁰ Rep. Comm. of Ind. Aff., 1857.

¹¹⁵ *Ibid.*, p. 3 See Commissioner Manypenny's Report for 1853, *supra*, pp. 249, 250 for opposition to such a policy.

¹¹⁷ *Ibid.*, p. 4.

¹¹⁸ *Ibid.*, p. 7.

¹¹⁹ *Ibid.*, p. 10.

He concludes his report with a plea for a recodification of Indian law:

* * * I urgently repeat the recommendation of my immediate predecessor, that there be an early and complete revision and codification of all the laws relating to Indian affairs, which, from lapse of time and material changes in the location, condition, and circumstances of the most of the tribes, have become so insufficient and unsuitable as to occasion the greatest embarrassment and difficulty in conducting the business of this branch of the public service.¹²²

In 1858, Commissioner Mix estimated the number of Indians to be about 350,000,¹²³ approximately the same number as it is estimated exists today.¹²⁴ He further estimated that about 393 treaties had been signed since the adoption of the Constitution; and that approximately 581,163,188 acres had been acquired through cession at a cost of $49,816,344.¹²⁵

The principle upon which treaty-making with the Indians for land cessions rested was thus stated:

> that the Indian tribes possessed the occupant or usufruct right to the lands they occupied, and that they were entitled to the peaceful enjoyment of that right until they were fairly and justly divested of it.¹³⁰

However, that principle was apparently not adhered to in the Territories of Oregon and Washington.

* * * strong inducements were held out to our people to emigrate and settle there, without the usual arrangements being made. In advance, for the extinguishment of the title of the Indians who occupied and claimed the lands,¹³¹

According to Commissioner Mix, past Government policy had been in error in at least three respects: (1) Removal from place to place prevented the acquiring of "* * * settled habits and a knowledge of and taste for civilized pursuits * * *";¹³² (2) assignment of too large a country to be held in common resulted in improper use and failure to acquire "* * * a knowledge of separate and individual property * * *";¹³³ (3) annuities resulted in indolence among Indians and fraudulent practices by whites.¹³⁴

The policy of concentrating the Indians on small reservations of land, and of sustaining them there for a limited period, until they can be induced to make the necessary exertions to support themselves, was commenced in 1858, with those in California. It is, in fact, the only course compatible with the obligations of justice and humanity.¹³⁵

The military appears to have been used in the vicinity of reservations "to prevent the intrusion of improper persons upon them [the Indians], to afford protection to the agents, and to aid in controlling the Indians and keeping them within the limits assigned to them."¹³⁶

In 1859, Secretary of the Interior Thompson reports progress in the shift of Government policy from that of removal to that of fixed reservations.¹³⁷

¹²² *Ibid.*, p. 12.

¹²³ Rep. of Comm. of Ind. Aff., 1858, p. 1.

¹²⁴ See Chapter 1, sec. 2, fn. 4.

¹²⁵ Rep. Comm. of Ind. Aff., 1858, p. 1.

¹²⁶ *Ibid.*, p. 6.

¹²⁷ *Ibid.*, p. 7.

¹²⁸ *Ibid.*, p. 7. He notes the difference in development between the northern tribes and those of the South who were permitted to remain for long periods in their original locations (pp. 6-7).

¹²⁹ *Ibid.*, p. 6.

¹³⁰ *Ibid.*, p. 6.

¹³¹ *Ibid.*, p. 9.

¹³² *Ibid.*, p. 10.

¹³³ See Commissioner Manypenny's recommendation for such a shift in 1854, *supra*.

16

The policy heretofore adopted of removing the Indians from time to time, as the necessities of our frontier population demanded a cession of their territory, the usual consideration for which was a large money annuity to be divided among them per capita had a deleterious effect upon their morals, and confirmed them in their roving, idle habits. This policy, we are now compelled by the necessity of the case to change. At present, the policy of the government is to gather the Indians upon small tribal reservations, within the well-defined exterior boundaries of which small tracts of land are assigned, in severalty, to the individual members of the tribe, with all the rights incident to an estate in fee-simple, except the power of alienation. This system, wherever it has been tried, has worked well, and the reports of the superintendents and agents give a most gratifying account of the great improvement which it has effected in the character and habits of those tribes which have been brought under its operation.¹²⁴

Alfred B. Greenwood, Commissioner of Indian Affairs, under Secretary Thompson,¹²⁵ recommended that the reservation policy, as it had been pursued in California, be abandoned.

* * * neither the Government nor California recognizes any right in the Indians of that State to one foot of land within her borders. An unnecessary number of reservations and separate farms have been established; the locations of many of them have proved to be unsuitable, and have not been sufficiently isolated; * * *¹²⁶

Under these circumstances, and being desirous to initiate a policy for California which will secure our own citizens from annoyance, and, at the same time, save the Indians from the speedy extinction with which they are threatened, I feel constrained to recommend the repeal of all laws authorizing the appointment of superintendent, agents, and sub-agents for California, and the abandonment of the present, and the substitution of a somewhat different plan of operations. * * * the State should be divided into two districts, and an agent appointed for each * * *. The agents should give the Indians in their respective districts to understand that they are not to be fed and clothed at government expense; but that they must supply all their wants by means of their own labor.¹²⁷

Should Congress authorize a change in the present system, and new reservations be established, great care should be taken so as to isolate the Indians from contact with the whites. Fertile lands should be selected which will repay the efforts to cultivate them * * *¹²⁸

During the Civil War period, when defections from the Federal Government occurred and tribes were concluding treaties with the Confederate Government,¹²⁹ the movement to terminate the practice of dealing with Indian tribes by treaty and to deal with them instead as objects of national charity, lacking legal rights, gained momentum.

Secretary of the Interior Caleb B. Smith clearly stated the new policy.

It may well be questioned whether the government has not adopted a mistaken policy in regarding the Indian tribes as quasi-independent nations, and making treaties with them for the purchase of the lands they claim to own. They have none of the elements of nationality; they are within the limits of the recognized authority of the United States and must be subject to its control. The rapid progress of civilization upon this continent will not permit the lands which are required for cultivation to be surrendered to savage tribes for hunting grounds. In

deed, whatever may be the theory, the government has always demanded the removal of the Indians when their lands were required for agricultural purposes by advancing settlements. Although the consent of the Indians has been obtained in the form of treaties, it is well known that they have yielded to a necessity which they could not resist.¹³⁰

* * * A radical change in the mode of treatment of the Indians should, in my judgment, be adopted. Instead of being treated as independent nations they should be regarded as wards of the government, entitled to its fostering care and protection. Suitable districts of country should be assigned to them for their homes, and the government should supply them, through its own agents, with such articles as they use, until they can be instructed to earn their subsistence by their labor.¹³¹

Under the Lincoln administration, Commissioner Dole concerned himself with the legal disadvantage under which Indians labor, in the conflict between state and federal jurisdiction.¹³²

* * * they find themselves amenable to a system of local and federal laws, as well as their treaty stipulations, all of which are to the vast majority of them wholly unintelligible. If a white man does them an injury, redress is often beyond their reach; or, if obtained, is only had after delays and vexations which are themselves cruel injustice. If one of their number commits a crime, punishment is sure and swift, and oftentimes is visited upon the whole tribe. * * *¹³³

Better cooperation between the Federal Government and the states was recommended, with state legislation leading to ultimate citizenship the goal to be pursued.

Very much of the evil attendant upon the location of Indians within the limits of States might be obviated, if some plan could be devised whereby a more hearty co-operation with government on the part of the States might be secured. It being a demonstrated fact that Indians are capable of attaining a high degree of civilization, it follows that the time will arrive, as in the case of some of the tribes it has doubtless now arrived, when the peculiar relations existing between them and the federal government may cease, without detriment to their interests or those of the community or State in which they are located; in other words, that the time will come when, in justice to them and to ourselves, their relations to the general government should be identical with those of the citizens of the various States. In this view, a more generous legislation on the part of most of the States within whose limits Indians are located, looking to a gradual removal of the disabilities under which they labor, and their ultimate admission to all the rights of citizenship, as from time to time the improvement and advancement made by a given tribe may warrant, is earnestly to be desired, and would, I doubt not, prove a powerful incentive to exertion on the part of the Indians themselves.¹³⁴

At the end of the Civil War, Secretary of the Interior Harlan reported the terms of a negotiated peace with those Indians who had joined forces with Confederate soldiers.¹³⁵

* * * Such preliminary arrangements were made as, it is believed, will result in the abolition of slavery among them, the cession within the Indian territory of lands for the settlement of the civilized Indians now residing on reservations elsewhere, and the ultimate establishment of civil government, subject to the supervision of the United States.¹³⁶

¹³⁰ Extract from Report of the Secretary of the Interior, 1862, p. 7, in Rep. Comm. Ind. Aff., 1862.

¹³¹ *Ibid.*, p. 9.

¹³² See Chapter 8, sec. 10.

¹³³ Rep. Comm. Ind. Aff., 1862, p. 12.

¹³⁴ *Ibid.*, p. 12.

¹³⁵ See Chapter 3, sec. 4I and Chapter 8, sec. 11.

¹³⁶ Extract from Report of the Secretary of the Interior, 1865, p. 111, in Rep. Comm. Ind. Aff., 1865.

¹²⁴ Extract from Report of the Secretary of the Interior, 1859, pp. 4-5 in Rep. Comm. Ind. Aff., 1859.

¹²⁵ Rep. Comm. Ind. Aff., 1859.

¹²⁶ *Ibid.*, p. 22.

¹²⁷ *Ibid.*, p. 23.

¹²⁸ *Ibid.*, p. 24.

¹²⁹ See Chapter 3, sec. 4H and Chapter 8, sec. 11.

17

Apparently, even at this late date the policy of complete ex-
termination of the Indian was advocated by "gentlemen of high
position, intelligence, and personal character."¹³⁷

Financial considerations forbid the inauguration of
such a policy. * * * It is estimated that the mainte-
nance of each regiment of troops engaged against the In-
dians of the plains costs the government two million
dollars per annum. * * * Such a policy is manifestly
as impracticable as it is in violation of every dictate of
humanity and Christian duty.¹³⁸

Secretary Harlan, in urging Congressional action for the neces-
sary reforms in the administration of justice on Indian reserva-
tions, stated:

It is earnestly recommended that the superintendents,
and also agents of a suitable grade, be empowered to act as
civil magistrates within the limits of reservations where
the tribal relations are maintained, and also on the plains
remote from the jurisdiction of civil authorities. The
want of an acceptable and efficient provision for the ad-
ministration of justice has been sensibly felt in cases
arising between members of the tribes, or between Indians
and the white men who have been permitted to reside
among them.¹³⁹

Commissioner Cooley¹⁴⁰ recommended various radical reforms
in Indian Service personnel, particularly with regard to traders
and agents. To eliminate collusion between them, he urged
Congress to make it a penal offense for

* * * any agent or other officer in the Indian service to be in any manner, directly or indirectly, interested in the profits of the business of any trader, or in any contract for the purchase of goods, or in any trade with the Indians, at their own or any other agency; the same penalties to apply to the licensing of any relative to trade, or to purchasing goods or provisions for the use of the Indians of any firm in which they or any relative may be partners or in any way interested. * * * ¹⁴¹

In urging, as commissioners had done before, increase in
agents' salary above the $1,500 they had received since 1834,¹⁴² as
a means of securing more thoroughly qualified persons, Com-
missioner Cooley held:

* * * The fact that innumerable applicants stand ready to take any places which are vacated is not, in my judgment, an argument against an increase of pay; it is simply a proof of the commonly received idea of the outside profit of the business. * * * ¹⁴³

He noted progress in the civilization of the Indian:

Another evidence of progress in the right direction is
the request made by several agents, on behalf of the In-
dians, that the kind of goods furnished to them may be
changed from the blankets, bright-colored cloths, and
various gewgaws, which have from time immemorial gone
to make up invoices of Indian goods, to substantial gar-
ments, improved agricultural implements, etc.¹⁴⁴

¹³⁷ *Ibid.*, p. III.

¹³⁸ *Ibid.*, pp. III, IV.

¹³⁹ *Ibid.*, p. IV. See Chapter 7, sec. 9.

¹⁴⁰ Rep. Comm. Ind. Aff., 1865.

¹⁴¹ *Ibid.*, p. 2. Legislation along the lines proposed was enacted in 1874. Act of June 22, 1874, sec. 10, 18 Stat. 146, 177, 25 U. S. C. 87. This, in effect, strengthened the restrictions contained in section 14 of the Act of June 30, 1834, 4 Stat. 735, 738, R. S. § 2078, 25 U. S. C. 68. The Act of June 19, 1939, 53 Stat. 840, 25 U. S. C. 87a, modified these two prohibitory statutes to permit purchases for personal use by federal employees.

¹⁵² By Act of April 20, 1818, 3 Stat. 461, agents' salaries varied from $1,200 to $1,800, and subagents' were fixed at $500. By Act of June 20, 1834, 4 Stat. 735, agents' salaries were fixed at $1,500, and subagents' at $750.

¹⁵³ Rep. Comm. Ind. Aff., 1865, pp. 2-3.

¹⁵⁴ *Ibid.*, p. 4.

In 1867, Acting Commissioner Mix summarized the obstacles to Indian civilization as he saw them, and the means to overcome them.

* * * mainly * * * his almost constant contact with the vicious, unscrupulous whites, who not only teach him their base ways, but defraud and rob him, and, often without cause, with as little compulsion as they would experience in killing a dog, take even his life.¹⁴⁰

Further

* * * the Indian has no certainty as to the permanent possession of the land he occupies and which he is urged to improve, for he knows not how long he may be permitted to enjoy it. * * * ¹⁵⁰ Evidently the remedy for these evils lies in securing to the Indians a permanent home in a country exclusively set apart for them, upon which no whites or citizens, except government agents and employes, shall be permitted to reside or intrude; in the granting to them allotments of land as individual property, to cultivate and improve; in the appointment of moral, honest, and efficient agents, with a fair compensation for services; and in the prompt fulfilment by the government of its treaty and other obligations, furnishing the necessary aid required for teaching, and placing them in the way of becoming self-sustaining and eventually independent of the government.¹⁵¹

He recommended to the Secretary the repeal of section 4 of the Act of July 26, 1866,¹⁴⁵ allowing any citizen "of proper character" to trade with Indians, since the Department had no authority to restrict the numbers, nor discretion to determine the fitness or ability of a trader.¹⁴⁵

### C. THE PERIOD FROM 1868 TO 1876

For the next few years, with Indians largely in the process of
being settled or resettled on western reservations, commissioners
concerned themselves primarily with problems of permanent pol-
icy and administration. Should treaty-making be abandoned?
What was the proper role of the military? Should the Bureau
of Indian Affairs be transferred back to the War Department?¹⁵⁰
How should the Indian Service be reorganized so as to overcome
charges of dishonesty and inefficiency? What was the best
technique for individualizing and controlling the Indian? What
were the present rights and future prospects of the Indian?

Although Commissioner Parker in 1869 urged that treaties
then in force be "promptly and faithfully executed," never-
theless he recommended, as Secretary Smith had in 1862,¹⁵³ that
the whole policy of treaty-making be abandoned.

* * * A treaty involves the idea of a compact between two or more sovereign powers, each possessing sufficient authority and force to compel a compliance with the obligations incurred. The Indian tribes of the United States are not sovereign nations, capable of making treaties, as none of them have an organized government of such inherent strength as would secure a faithful obedience of its people in the observance of compacts of this character. They are held to be the wards of the government, and the only title the law concedes to them to the lands they occupy or claim is a mere possessory one. But, because treaties have been made with them, generally for the extinguishment of their supposed absolute title to land inhabited by them, or over which they roam, they have

¹⁴⁵ Rep. Comm. Ind. Aff., 1867, p. 1.

¹⁴⁶ *Ibid.*, p. 1.

¹⁴⁷ *Ibid.*, p. 2.

¹⁴⁸ 14 Stat. 255, 280, R. S. § 2128.

¹⁴⁹ Rep. Comm. Ind. Aff., 1867, pp. 5-6.

¹⁵⁰ See sec. 1B, *supra*, for a discussion of that problem, and the recommendations of various commissioners and the Indian Peace Commission of 1867.

¹⁵¹ See Rep. Comm. Ind. Aff., 1862, p. 7, and *supra*.

18

become falsely impressed with the notion of national independence. It is time that this idea should be dispelled, and the government cease the cruel farce of thus dealing with its helpless and ignorant wards. Many good men, looking at this matter only from a Christian point of view, will perhaps say that the poor Indian has been greatly wronged and ill treated; that this whole country was once his, of which he has been despoiled, and that he has been driven from place to place until he has hardly left to him a spot where to lay his head. This indeed may be philanthrope and humane, but the stern letter of the law admits of no such conclusion, and great injury has been done by the government in deluding this people into the belief of their being independent sovereigns while they were at the same time recognized only as its dependents and wards. As civilization advances and their possessions of land are required for settlement, such legislation should be granted to them as a wise, liberal, and just government ought to extend to subjects holding their dependent relation. * * * 152

By the Act of March 3, 1871,¹⁰⁵ treaty-making was abandoned. However, agreements, approved by both Senate and House of Representatives, continued to be made. In 1873 Commissioner Edward P. Smith urged that even agreements cease.

* * * We have in theory over sixty-five independent nations within our borders, with whom we have entered into treaty relations as being sovereign peoples; and at the same time the white agent is sent to control and supervise these foreign powers, and care for them as wards of the Government. This double condition of sovereignty and wardship involves increasing difficulties and absurdities, as the traditional chieftain, losing his hold upon his tribe, ceases to be distinguished for anything except for the lion's share of goods and moneys which the Government endeavors to send, through him, to his nominal subjects, and as the necessities of the Indians, pressed on every side by civilization, require more help and greater discrimination in the manner of distributing the tribal funds. So far, and as rapidly as possible, all recognition of Indians in any other relation than strictly as subjects of the Government should cease. To provide for this, radical legislation will be required.¹⁰⁶

On the use of the military, official opinion varied. Commissioner Taylor (1868)¹⁰⁷ was strongly opposed; Commissioner Parker (1869),¹⁰⁸ himself a general, believed in its use, particularly for those Indians who failed to remove. In his 1870 report¹⁰⁷ he lamented the passage by Congress of an act¹⁰⁸ which "* * * prohibited the employment of army officers in any civil capacity * * *." Commissioner Francis A. Walker (also a general) in 1872¹⁰⁹ urged the use of the military to effect the "peace policy."¹¹⁰⁰

* * * Such a use of the military constitutes no abandonment of the "peace policy," and involves no disparagement of it. It was not to be expected—it was not in the nature of things—that the entire body of wild Indians should submit to be restrained in their Ishmaelitish activities without a struggle on the part of the more audacious to maintain their traditional freedom. * * * 152

¹⁰⁵ R. p. Comm. Ind. Aff., 1869, p. 6.

¹⁰⁶ 16 Stat. 544, 566. R. S. § 2079, 25 U. S. C. 71. See Chapter 3.

¹⁰⁷ Rep. Comm. Ind. Aff., 1873, p. 3.

¹⁰⁸ Rep. Comm. Ind. Aff., 1868, pp. 8-10.

¹⁰⁹ Rep. Comm. Ind. Aff., 1869, p. 5.

¹¹⁰ Rep. Comm. Ind. Aff., 1870, pp. 9-10.

¹¹⁰¹ Act of July 15, 1870, 16 Stat. 315, 319. See fn. 41, *supra*. By Act of July 13, 1892, c. 164, sec. 1, 27 Stat. 120; and Act of July 1, 1898, c. 545, sec. 1, 30 Stat. 571, 573, the President was given the power to detail Army officers for duty to Indian agencies. 25 U. S. C. 27.

¹¹⁰² Rep. Comm. Ind. Aff., 1872.

¹¹⁰³ In 1867 (Act of July 20, 1867, 15 Stat. 17) the Indian Peace Commission was authorized by Congress to study the cause and cure for Indian wars. Their recommendations in 1868 (Report of January 7, 1868 to the President, in Rep. Comm. Ind. Aff., 1868, pp. 26-50) were the basis for the new "peace policy" of the Government. See discussion sec. 1, *supra*.

¹¹⁰⁴ Rep. Comm. of Ind. Aff., 1872, p. 5.

Commissioner Walker complained that his policy had been widely misunderstood and criticized by the press.

* * * This misunderstanding in regard to the occasional use of force in making effective and universal the policy of peace, has led no small portion of the press of the country to treat the more vigorous application of the scourge to refractory Indians which has characterized the operations of the last three months as an abandonment of the peace policy itself, whereas it is, in fact, a legitimate and essential part of the original scheme which the Government has been endeavoring to carry out, with prospects of success never more bright and hopeful than to-day.¹⁰⁵

In 1873, Commissioner Edward P. Smith urged that a military force be set up among the Sioux, notwithstanding treaty assurances to the contrary.

Hitherto the military have refrained from going on this reservation because of the express terms of the treaty with the Sioux, in which it is agreed that no military force shall be brought over the line. I respectfully recommend that provision be made at once for placing at each of the Sioux reservations a military force sufficient to enable the agents to enforce respect for their authority, and to conduct agency affairs in an orderly manner.¹⁰⁶

After many years of charges against Indian Service field personnel of dishonesty and inefficiency,¹⁰⁶ a new system of choosing agents was inaugurated in 1869 under President Grant.¹⁰⁷ Their nomination was for the most part delegated to various religious bodies active in missionary work, particularly the Society of Friends. The remaining agencies were filled by Army officers detailed for such duty,¹⁰⁸ until the Appropriation Act of July 15, 1870,¹⁰⁹ caused them to relinquish civil posts.

Commissioner Parker in 1839 and in 1870 reported the plan working well.¹⁰⁹ However, it was gradually abandoned and completely discontinued by the early eighties.¹¹⁰

On the question of the techniques for individualizing and controlling the Indians, commissioners differed somewhat, although all agreed basically on allotment of land in severally as one of the major methods.

* * * The policy of giving to every Indian a home that he can call his own is a wise one, as it induces a strong incentive to him to labor and make every effort in his power to better his condition. By the adoption, generally, of this plan on the part of the Government, the Indians would more rapidly advance in civilization than they would be if the policy of allowing them to hold their land in common were continued.¹¹⁰¹

* * * A fundamental difference between barbarians and a civilized people is the difference between a herd and an individual. * * * The starting-point of indi-

¹⁰⁵ *Ibid.*, p. 6.

¹⁰⁶ Rep. Comm. Ind. Aff., 1873, p. 6.

¹⁰⁷ Rep. Comm. Ind. Aff., 1869, p. 5.

¹⁰⁸ 1st Annual Message to Congress, December 6, 1869.

I have attempted a new policy towards these wards of the nation * * *. The Society of Friends is well known as having succeeded in living in peace with the Indians in the early settlement of Pennsylvania, while their white neighbors of other sects in other sections we e constantly embroiled. They are also known for their opposition to all strife, violence, and war, and are generally noted for their strict integrity and fair dealings. These considerations induced me to give the management of a few reservations of Indians to them and to throw the burden of the selection of agents upon the society itself * * *. For superintendents and agents not on the reservations, officers of the Army were selected. (Richardson, Messages and Papers of the Presidents, 1897, Vol. IX, pp. 3992-3993.)

According to Schmeckebler this policy was inaugurated by Grant to insure against opposition to his appointments by the Senate. (Schmeckebler, *op. cit.*, p. 54.)

¹¹⁰ 16 Stat. 315, 319. See fn. 157, *supra*.

¹¹¹ Rep. Comm. Ind. Aff., 1869, p. 5; Rep. Comm. Ind. Aff., 1870, pp. 9-10.

¹¹² Schmeckebler, *ap. cit.*, p. 55, fn. 92

¹¹³ Rep. Comm. Ind. Aff., 1870, p. 9. See Chapter 11, sec. 1.

19

vidualism for an Indian is the personal possession of his portion of the reservation.⁷¹¹

In 1870, Commissioner Parker reported, as an indication of Indian progress, that many were asking to have their land surveyed and allotted.⁷¹²

In 1872, Commissioner Walker defended the "feeding" policy which had been in effect for 3 years.

The Indian policy, so called, of the Government, is a policy, and it is not a policy, or rather it consists of two policies, entirely distinct, seeming, indeed, to be mutually inconsistent and to reflect each upon the other: the one regulating the treatment of the tribes which are potentially hostile, that is, whose hostility is only repressed just so long as, and so far as, they are supported in idleness by the Government; the other regulating the treatment of those tribes which, from traditional friendship, from numerical weakness, or by the force of their location, are either indisposed toward, or incapable of, resistance to the demands of the Government.⁷¹³ It is, of course, hopelessly illogical that the expenditures of the Government should be proportioned not to the good but to the ill desert of the several tribes; that large bodies of Indians should be supported in entire indolence by the bounty of the Government simply because they are audacious and insolent, while well-disposed Indians are only assisted to self-maintenance, since it is known they will not fight.⁷¹⁴ And yet, for all this, the Government is right and its critics wrong; and the "Indian policy" is sound, sensible, and beneficent, because it reduces to the minimum the loss of life and property upon our frontier, and allows the freest development of our settlements and railways possible under the circumstances.⁷¹⁵

There is no question of national dignity, be it remembered, involved in the treatment of savages by a civilized power. With wild men, as with wild beasts, the question whether in a given situation one shall fight, conx, or run, is a question merely of what is easiest and safest.⁷¹⁶

Commissioner Walker discussed the function of the reservation as he saw it.

* * * the Indians should be made as comfortable on, and as uncomfortable off, their reservations as it was in the power of the Government to make them; that such of them as went right should be protected and fed, and such as went wrong should be harassed and scourged without intermission. * * * Such a use of the strong arm of the Government is not war, but discipline.⁷¹⁷

* * * The reservation system affords the place for thus dealing with tribes and bands, without the access of influences inimical to peace and virtue. It is only necessary that Federal laws, judiciously framed to meet all the facts of the case, and enacted in season, before the Indians begin to scatter, shall place all the members of this race under a strict reformatory control by the agents of the Government. Especially is it essential that the right of the Government to keep Indians upon the reservations assigned to them, and to arrest and return them whenever they wander away, should be placed beyond dispute. * * * ¹⁷⁷

The problem of the consolidation and sale of surplus land on reservations had already appeared in 1872.

The reservations granted heretofore have generally been proportioned, and rightly so, to the needs of the Indians in a roving state, with hunting and fishing as their chief means of subsistence, which condition implies the occupation of a territory far exceeding what could possibly be

cultivated. As they change to agriculture, however rude and primitive at first, they tend to contract the limits of actual occupation. With proper administrative management the portions thus rendered available for cessation or sale can be so thrown together as in no way to impair the integrity of the reservation. Where this change has taken place, there can be no question of the expediency of such sale or cession. The Indian Office has always favored this course, and notwithstanding the somewhat questionable character of some of the resulting transactions, arising especially out of violent or fraudulent combinations to prevent a fair sale, it can be confidently affirmed that the advantage of the Indians has generally been subserved thereby.⁷¹⁸

The present rights and the future prospects of the Indian appears to have concerned many commissioners.

Commissioner Taylor, in 1868, asked the question:

Shall our Indians be civilized, and how?

* * * Assuming that the government has a right, and that it is its duty to solve the Indian question definitely and decisively, it becomes necessary that it determine at once the best and speediest method of its solution, and then, armed with right, to act in the interest of both races.

If might makes right, we are the strong and they the weak; and we would do no wrong to proceed by the cheapest and nearest route to the desired end, and, could, therefore, justify ourselves in ignoring the natural as well as the conventional rights of the Indians, if they stand in the way, and, as their lawful masters, assign their status and their tasks, or put them out of their own way and ours by extermination with the sword, starvation, or by any other method.

If, however, they have rights as well as we, then clearly it is our duty as well as sound policy to so solve the question of their future relations to us and each other, as to secure their rights and promote their highest interest, in the simplest, easiest, and most economical way possible.

But to assume they have no rights is to deny the fundamental principles of Christianity, as well as to contradict the whole theory upon which the government has uniformly acted towards them; we are therefore bound to respect their rights, and, if possible, make our interests harmonize with them. * * * ¹⁷⁹

Commissioner Walker, in 1872, answered the question in one way.

It belongs not to a sanguine, but to a sober view of the situation, that three years will see the alternative of war eliminated from the Indian question, and the most powerful and hostile bands of to-day thrown in entire helplessness on the mercy of the Government. * * *

No one certainly will rejoice more heartily than the present Commissioner when the Indians of this country cease to be in a position to dictate, in any form or degree, to the Government; when, in fact, the last hostile tribe becomes reduced to the condition of suppliants for charity. * * * ¹⁸⁰

Commissioner John Q. Smith in 1876 answered the question in another way.

* * * No new hunting-grounds remain, and the civilization or the utter destruction of the Indians is inevitable. The next twenty-five years are to determine the fate of a race. If they cannot be taught, and taught very soon, to accept the necessities of their situation and begin in earnest to provide for their own wants by labor in civilized pursuits, they are destined to speedy extinction.¹⁸¹

* * * We have despoiled the Indians of their rich hunting-grounds, thereby depriving them of their ancient means of support. Ought we not and shall we not give them at

⁷¹¹ Rep. Comm. Ind. Aff., 1873, p. 4.

⁷¹² Rep. Comm. Ind. Aff., 1870, p. 9.

⁷¹³ Rep. Comm. Ind. Aff., 1872, p. 3.

⁷¹⁴ * Ibid., p. 4.

⁷¹⁵ * Ibid., p. 5.

⁷¹⁶ * Ibid., p. 6.

⁷¹⁷ * Ibid., pp. 11-12.

¹⁸¹ * Ibid., p. 13.

¹⁸² Rep. Comm. Ind. Aff., 1868, p. 16.

¹⁸³ Rep. Comm. Ind. Aff., 1872, p. 9.

¹⁸⁴ Rep. Comm. Ind. Aff., 1876, p. VI.

20

least a secure home, and the cheap but priceless benefit of
just and equitable laws?¹⁸²

Along with the broad problems of administration and policy,
were the problems of specific reform in legislation as inadequa-
cies became apparent in laws governing intercourse and trade
with the Indians, and in the extension of United States law and
the jurisdiction of the courts over Indians. These specific reforms
had been recommended for many years, the revision of the Inter-
course Act of 1834¹⁸³ since 1853,¹⁸⁴ and law and order reform since
at least 1862.¹⁸⁵

In 1871 Acting Commissioner Clum wrote that the laws regu-
lating trade

* * * are so defective as to fail to secure the Indians against the encroachments of the whites * * *. A revision of these laws is very much to be desired to meet the changed circumstances now surrounding the Indians, arising out of the building of railroads through their lands, the rapid advance of white settlements, and the claims and rights of squatters, miners, and prospecting parties.¹⁸⁶

The request for reform in the administration of justice over the
Indians was made in the report of the Board of Indian Com-
missioners for 1871:¹⁹⁷ it was reiterated in 1873¹⁸⁸ by Com-
missioner Edward P. Smith, who urged that agents and superin-
tendents be given magistreral powers, and again in 1875, when he
urged that authority be given

* * * to the Secretary of the Interior to prescribe for
all tribes prepared, in his judgment, to adopt the same,
an elective government, through which shall be adminis-
tered all necessary police regulations of the reservation¹⁹⁹

Commissioner John Q. Smith recommended the

* * * Extension over them [the Indians] of United
States law and the jurisdiction of United States courts.¹⁹⁰

D. THE PERIOD FROM 1877 TO 1904

In 1877 Commissioner Hayt made seven specific recommenda-
tions for policy, that of a system of compulsory common schools
being particularly noteworthy: (1) A code of laws for reserva-
tions and means for dispensing justice; (2) Indian police under
white officers; (3) The promotion of agriculture and the division
of land "* * *" into farms of convenient size, the title to
which shall be vested in individuals and inalienable for 20
years * * *"; (4) The establishment of a compulsory com-
mon school system, including industrial schools; (5) Free access
to Indians of missionaries; (6) Insistence on labor in return for
food and clothing; and (7) A steady concentration of the smaller
bands on larger reservations.¹⁹¹

In 1880, Acting Commissioner Marble included statistical tables
of population and amount and types of work accomplished during
the year.¹⁹² He reported extensively on educational advances,

particularly the opening of new boarding schools.¹⁹³ "The im-
portance of having at lease one good boarding school at each
agency need not be argued."¹⁹⁴

The system of Indian police, in operation less than 3 years, was
reported to be working admirably with a force of 162 officers and
653 private s.¹⁹⁵

The plea for a "uniform and perfect title to their lands, as a
measure conducive in the highest degree to their present and
future welfare" was again urged for the Indians.¹⁹⁶

Commissioner Price, as a business man, was concerned with
Indian administration and personnel.

* * * Within the last year seven entire months were
consumed in making such a change at one of the agencies,
where any correct business man transacting his own busi-
ness would have made the change in less than seven days.
This is the fault of the law, and ought to be changed.¹⁹⁷

I give it as my honest conviction as a business man,
after one year and a half of close observation, in a position
where the chances for a correct knowledge of this question
are better than in any other, that the true policy of the
government is to pay Indian agents such compensation and
place them under such regulations of law as will insure
the services of first-class men. It is not enough that a
man is honest; he must, in addition to this, be capable.
He must be up to standard physically as well as morally
and mentally. Men of this class are comparatively scarce,
and as a rule cannot be had unless the compensation is
equal to the service required. Low-priced men are not
always the cheapest. A bad article is dear at any price.
Paying a man as Indian agent $1.200 or $1,500, and expect-
ing him to perform $3,000 or $4,000 worth of labor, is not
economy, and in a large number of cases has proven to be
the worst kind of extravagance.¹⁹⁸

He urged increased appropriations for education, particularly
for industrial schools.

* * * If one million of dollars for educational purposes given now will save several millions in the future, it is wise economy to give that million at once, and not dole it out in small sums that do but little good.¹⁹⁹

Commissioner Price departed from the accepted theory in
Indian education of the superiority of boarding over day
schools.²⁰⁰

* * * It is as common a belief that the boarding
should supersede the day school as it is that training-
schools remote from the Indian country ought to be sub-
stituted for those located in the midst of the Indians. But
I trust that the time is not far distant when a system
of district schools will be established in Indian settlements,
which will serve not only as centers of enlightenment for
those neighborhoods, but will give suitable employment

¹⁸² *Ibid.* p. XI. Commissioner Smith commends as "* * * The only thing yet done by the Government * * * permanent and far-reaching * * * the dedication of the Indian Territory as the final home for the race." (P. XI.) See Chapter 23, sec. 5, on the throwing open of Indian Territory lands for settlement.

183 Act of June 30, 1834, 4 Stat. 729. See Chapter 16.

184 See Rep. Comm. Ind. Affairs, 1853, pp. 261-262, and *supra*.

185 See Rep. Comm. Ind. Affairs, 1862, p. 12, and *supra*.

186 Rep. Comm. Ind. Aff., 1871, p. 6.

¹⁸⁷ Third Annual Report of the Board of Indian Commissioners, in
Rep. Comm. Ind. Aff. 1871, p. 16.

188 Rep. Comm. Ind. Aff., 1873, pp. 4-5.

189 Rep. Comm. Ind. Aff., 1875 p. 16.

¹⁸⁹ R. p. Comm. Ind. Aff., 1876, p. VII. See Chapter 7, sec. 9; Chapters 18 and 19.

190 Rep. Comm. Ind. Aff., 1877, pp. 1-2.

191 Rep. Comm. Ind. Aff., 1880, pp. III-IV.

193 *Ibid.*, pp. V-VI.

194 *Ibid.*, p. VI.

195 *Ibid.*, p. IX. Act of May 27, 1878, 20 Stat. 63, 86. Their duties involved discovery and arrest of thieves, action as truant officers, protection of annuities and property, prevention of depredations to timber and of the introduction of liquor, action as messengers and census takers, etc. (p X).

196 *Ibid.*, p. XVI.

197 Rep. Comm. Ind. Aff., 1882, p. V.

198 *Ibid.*, pp. V, VI. Commissioner E. P. Smith in his report for 1873 (pp. 9-10) had urged that salaries be increased to $2,000 or $2,500, depending on the remoteness of the reservation; Commissioner John Q. Smith in his report for 1876 (pp. III, IV) to $3,000; Commissioner E. A. Hayt in his report for 1877 (pp. 6-7) that salaries be scaled according to the number of Indians under an agent's jurisdiction. Recommendations for increasing agents' salaries appear constantly in Commissioners' reports.

199 *Ibid.*, p. VII.

200 See Chapter 12, sec. 2.

THE OFFICE OF INDIAN AFFAIRS

21

to returned students, especially the young women, for whom it is specially difficult to provide.²⁰¹

The cost of maintaining an Indian pupil in a reservation boarding school may be set down as a little over $150 per annum; in a day school at about $30 per annum.²⁰²

In the matter of health, also, Commissioner Price had specific recommendations.

When the length of time (three or four years) which is required for the physician to familiarize himself with the language, habits, and mental peculiarities of Indians is taken into consideration, and also the diplomacy which is required to obtain and maintain their confidence, it is obvious that it is specially desirable to procure efficient and, if possible, permanent medical officers of pronounced moral and temperate habits, of great will power, capable of making good and enduring impressions on the Indians. It is detrimental to the service to be continually changing medical officers.

In connection with permanent medical officers, a system should be inaugurated of caring for the blind, insane, and destitute aged Indians.²⁰³

The problem of freedmen in Indian Territory, pressing since the close of the Civil War, had not been solved by 1882.

The rights guaranteed to the freedmen in the Indian Territory by treaty stipulations have been ignored, and so far as their interests are involved the treaties themselves have been virtually set aside, both by the Indians and by the government.²⁰⁴

In this report of January 26, 1882, Agent Tufts states that—

> It is unpopular in the Cherokee Nation to advocate a measure that provides for placing the colored man on an equality with Cherokees, and the politicians are civilized enough to do nothing that might lessen their chances for political success; hence until the sentiment shall undergo a revolution there will be no favorable action.

From the hesitancy heretofore shown by the nation to carry out in good faith toward the colored people simply what has been granted them by the treaty, I am convinced that the nation will not fix and settle the status of the colored people until a more peremptory demand is made on the nation to execute the conditions of their treaty respecting them.

Many of the colored people speak the Cherokee language, and having been brought up among Cherokees and accustomed to their ways, it would be a hardship to remove them from that country, and remaining in the nation, they should be accorded all their rights. Agent Tufts recommended the appointment of a commission to visit the aency with authority to hear evidence and determine the question whether the claimants were freedmen liberated by voluntary act of owner, or by law, or whether they were free colored persons and in the country at the commencement of the rebellion; and whether they were residents of the nation at the time of the treaty, or returned within six months thereafter—the findings of the commission to be submitted to the department for approval.²⁰⁵

With the discovery of valuable coal deposits in an Indian reservation in Arizona Territory, arose the problem of its extraction and removal. Commissioner Price felt that the Indians could not be prevailed upon to remove again, that the Government could not undertake to work the mines, that the Indians themselves were not capable technically of doing so, and even were they, they could not dispose of the coal since

²⁰¹ Rep. Comm. Ind. Aff., 1882, p. XXXV.

²⁰² *Ibid.*, p. XL. See Chapter 12, sec. 3.

²⁰³ *Ibid.*, p. XLVIII.

²⁰⁴ Rep. Comm. Ind. Aff., 1882, p. LV.

* * * under existing law there is no authority for permitting the severance and removal from an Indian reservation, for purposes of sale or speculation, of any material attached to or forming a part of the realty, such as timber, coal, or other minerals.²⁰⁶

Commissioner Price therefore recommended a system of leasing.

After carefully considering the questions involved, this office became convinced that the most practicable solution of the matter would be the adoption of a system of leasing upon a royalty plan; and accordingly a draft of a joint resolution was prepared in this office and submitted to the department in April last with a view to securing the needful legislation therefore. It was believed that by this means a very large part of the annual expenditure for the support and care of the Indians of Arizona and New Mexico might be reimbursed to the government from the profit of the mines without hardship to consumers, and that the Indians themselves would be greatly benefited, not only by the example of industry set, but through the opportunity that would be afforded them to earn wages by their own labor.²⁰⁷

According to Commissioner Atkin's report for 1886,²⁰⁸ the system of leasing grazing land had been tried on the Cheyenne and Arapaho Reservation unsuccessfully. By Presidential proclamation²⁰⁹ the leases were declared null and void, and the cattle and cattlemen removed, much to the satisfaction of the Indians who

* * * no longer contemplate the monopoly of nineties of their reservation by outsiders, but in place thereof they view with satisfaction their own fields of corn, and farms inclosed with fences, put up by their own labor, * * * ²¹⁰

The system of leasing Indian lands was further complicated by a decision of the Attorney General to the effect that—

* * * the system of leasing Indian lands which has hitherto prevailed is illegal without the consent of Congress * * * ²¹¹

Commissioner Atkins recommended that the leasing system either be legalized, as his predecessor had recommended before him,²¹² or abolished.²¹³

If Congress would authorize Indians to dispose of their grass, or would take any definite action as to the policy which this office can legally pursue in regard to Indian grazing lands, it would materially lessen the perplexities and confusion which now pertain to the subject. Moreover, if some way could be adopted by which, under proper restrictions, the surplus grass on the several Indian reservations could be utilized with profit to the Indians, the annual appropriations needed to care for the Indians could be correspondingly and materially reduced.²¹⁴

Of the general allotment bill, which had passed the Senate and was favorably reported in the House, Commissioner Atkins reported:

* * * As there seems to be no substantial opposition to this bill, it is hoped that it will become a law during the coming winter. Its passage will relieve this office of much embarrassment and enable it to make greater progress in

²⁰⁵ Rep. Comm. Ind. Aff., 1882, p. LVII.

²⁰⁶ Rep. Comm. Ind. Aff., 1882, p. XLIX. See Chapter 15, sec. 19.

²⁰⁷ *Ibid.*, p. XLIX.

²⁰⁸ Rep. Comm. Ind. Aff., 1886.

²⁰⁹ See Sen. Ex. Doc. 17, 48th Cong., 2d sess., vol. I, pt. I, 1885.

²¹⁰ Rep. Comm. Ind. Aff., 1886, p. XVIII.

²¹¹ *Ibid.*, p. XIX. 18 Op. A. G. 235 (1885).

²¹² See R. P. Comm. Ind. Aff. (Hiram Price) 1882, p. XLIX, and *supra*.

²¹³ Rep. Comm. Ind. Aff., 1886, p. XIX.

²¹⁴ *Ibid.*, p. XIX.

22

the important work of assisting the Indians to become in-
dividual owners of the soil by an indefeasible title.²¹⁵

Of courts of Indian offenses which had been instituted at various agencies to try minor offenses, Commissioner Atkins wrote:

> These courts are also unquestionably a great assistance to the Indians in learning habits of self-government and in preparing themselves for citizenship. I am of the opinion that they should be placed upon a legal basis by an act of Congress authorizing their establishment, under such rules and regulations as the Secretary of the Interior may prescribe. Their duties and jurisdiction could then be definitely determined and greater good accomplished.²¹⁶

Commissioner Atkins expressed a hope with regard to traders which has not yet been realized.

> But it is earnestly hoped that the necessity for white traders upon the reservations will soon be superseded. Under the law the full-blood Indian is guaranteed the right to trade with the Indians of his tribe, without the restrictions imposed upon half-breeds and white traders. It is the constant aim and effort of the Indian Office to make the Indian self-reliant and self-sustaining, and if this policy is persevered in with the aid of the educational advantages available at almost every agency, I cannot but believe that the Indians will at an early day acquire sufficient ability to manage the trading posts themselves and supply their people with such goods as they may need.²¹⁷

In the report of the Commissioner of Indian Affairs for 1888 one notes the beginnings of a problem which grew into major proportions in later years—the problem of the annuity roll.

> In this connection, I would suggest that action should be taken by Congress to confine the benefits arising under Indian treaties to those justly entitled thereto, by excluding from participation therein whites hereafter enrolled as Indians by adoption and also the descendants of whites and Indians beyond a certain degree.²¹⁸

Of the application of the Allotment Act,²¹⁹ which had been in force for more than a year, Commissioner Oberly reports slow progress,²²⁰ and considerable opposition.

Considerable opposition to the allotment policy has been developed from two sources. Those who believe in the wisdom of tribal ownership, and in the policy of continuing the Indian in his aboriginal customs, habits, and independence, oppose it because it will eventually dissolve his tribal relations and cause his absorption into the body politic. On the other hand, those who expected that the severality act would immediately open to public settlement long-coveted Indian lands, oppose it because they have learned that these expectations will not be realized.

There is a third class of persons who are heartily in favor of allotting Indian lands, but who are apprehensive that, under the flexible terms of the allotment act, allot-

²¹⁵ *Ibíd.*, p. XX. In an earlier report (1885) Commissioner Atkins had recommended that "When the Indians have taken their lands in severity in sufficient quantities * * *," the remainder should be purchased by the Government and thrown open for homesteading.

The money paid by the Government for their lands should be held in trust in a separate bonds, to be invested as Congress may provide, for the education, civilization, and material development and advancement of the red race, reserving for each tribe its own money. (Rep. Comm. Ind. Aff., 1885, p IV)

This became part of the General Allotment Act of February 8, 1887, 24 Stat. 388, 25 U. S. C. 331 et seq. and was the basis of trust-fund reports of succeeding commissioners. For a discussion of the background of the allotment system, see Chapter 11, sec. 1.

²¹⁶ *Ibid.*, p. XXVII. The courts of Indian offenses were established in 1882 according to the Report of the Commissioner of Indian Affairs for 1889 (p. 26).

²¹⁷ *Ibid.*, p. XL. See Chapter 17.

²¹⁸ R-p. Comm. Ind. Aff. (John H. Oberly), 1888, p. XXXIII.

²¹⁹ Act of February 8, 1887, 24 Stat. 338, 25 U. S. C. 331, et seq.

²²⁰ Rep. Comm. Ind. Aff., 1888, p. XXXVII. The necessity for surveying prior to allotment, and the late date at which the appropriation bill passed are the reasons given.

ments may be forced upon Indians before they are ready to receive, use, and hold them. * * * ²²¹

Commissioner Oberly presents a detailed analysis of the status of Indian health ²²²—the diseases prevalent among Indians, the scarcity of physicians ²²³ and nurses, and the need for a hospital at every agency.

In his report on the operation of the contract system of purchasing Indian supplies, whereby numerous contractors submit samples which the Government is forced to examine, he recommends that the Indian Office fix the standard sample on which bids are to be received, thus assuring uniformity of quality, saving time, and eliminating charges of favoritism.²²⁴

Since Commissioner Oberly had been United States Civil Service Commissioner ²²⁵ as well as Superintendent of Indian Schools,²²⁶ he was particularly interested in incorporating school employees under Civil Service, to correct the "party spoils system" method of appointment and dismissal.

* * * for no matter how desirous the Commissioner of Indian Affairs and the Superintendent of Indian Schools may be to obtain good material for the service, and no matter how conscientiously both may endeavor to improve its condition, they will, so long as this system is endured, be obstructed in all such efforts by clamorous demands that the places on Indian reservations, and in the schools not on reservations, shall be dispensed as rewards for partisan activity. In short, the Commissioner and Superintendent, with 1,200 places (exclusive of Indians) at their disposal, can not give to the agency and the school competent employees until after they shall have secured protection from partisan pressure and personal solicitation; and such protection can be afforded to them only by the provisions of the civil-service act of 1883. As United States Civil Service Commissioner I gave to this subject much consideration, and I have no doubt that the provisions of that act could be applied to the Indian service, and, that by their application thereto, under wise rules promulgated by the President, the cause of Indian civilization would be advanced many years.

* * * ²²⁷

Commissioner Thomas J. Morgan entered upon his duties on July 1, 1889, and made his first report in October of that year. He offers, until such time as he may acquaint himself

* * * by personal observation with the practical workings of the Indian field-service * * * a few simple, well-defined, and strongly cherished convictions:

First.—The anomalous position heretofore occupied by the Indians in this country can not much longer be maintained. The reservation system belongs to a "vanishing state of things" and must soon cease to exist.

Second.—The logic of events demands the absorption of the Indians into our national life, not as Indians, but as American citizens.

Third.—As soon as a wise conservatism will warrant it, the relations of the Indians to the Government must rest solely upon the full recognition of their individuality. Each Indian must be treated as a man, be allowed a man's rights and privileges, and be held to the performance of a man's obligations. Each Indian is entitled to his proper share of the inherited wealth of the tribe, and to the protection of the courts in his "life, liberty, and

²²¹ *Ibid.*, pp. XXXVIII-XXXIX. Of report of the previous commissioner, Atkins, in 1886, supra, of "* * * no substantial position to this bill * * *" (P. XX.)

²²² Rep. Comm. Ind. Aff., 1888, pp. XXXIV-XXXV.

²²³ There were 81 physicians for more than 200,000 Indians—approximately 1 for every 2,500 Indians.

²²⁴ Rep. Comm. Ind. Aff., 1888, pp. LXXXI, LXXXII.

²²⁵ *Ibid.*, p. LXXV. From April 17, 1886, to October 10, 1888, according to the Civil Service Commission official files.

²²⁶ *Ibid.*, p. LXXIV. From 1880 to 1886, according to Indian Office Library files.

²²⁷ *Ibid.*, p. LXXXV.

THE OFFICE OF INDIAN AFFAIRS

23

pursuit of happiness." He is not entitled to be supported in idleness.

*Fourth*.—The Indians must conform to "the white man's ways," peaceably if they will, forcibly if they must. They must adjust themselves to their environment, and conform their mode of living substantially to our civilization. This civilization may not be the best possible, but it is the best the Indians can get. They can not escape it, and must either conform to it or be crushed by it.

*Fifth*.—The paramount duty of the hour is to prepare the rising generation of Indians for the new order of things thus forced upon them. A comprehensive system of education modeled after the American public-school system, but adapted to the special exigencies of the Indian youth, embracing all persons of school age, compulsory in its demands and uniformly administered, should be developed as rapidly as possible.

*Sixth*.—The tribal relations should be broken up, socialism destroyed, and the family and the autonomy of the individual substituted. The allotment of lands in severalty, the establishment of local courts and police, the development of a personal sense of independence, and the universal adoption of the English language are means to this end.

*Seventh*.—In the administration of Indian affairs there is need and opportunity for the exercise of the same qualities demanded in any other great administration—integrity, justice, patience, and good sense. Dishonesty, injustice, favoritism, and incompetency have no place here any more than elsewhere in the Government.

*Eighth*.—The chief thing to be considered in the administration of this office is the character of the men and women employed to carry out the designs of the Government. The best system may be perverted to bad ends by incompetent or dishonest persons employed to carry it into execution while a very bad system may yield good results if wisely and honestly administered.

In 1890, Commissioner Morgan made a very detailed report (144 pp.) of the duties, difficulties, hopes, and improvements of his administration.²²⁹ One of the chief difficulties was lack of personnel. A chief clerk, solicitor, and medical expert for the office were urged, in addition to other clerical help.²³⁰ Agents' salaries were still too low for adequate performance.²³¹

Another difficulty was the whole reservation policy.

The entire system of dealing with them [the Indians] is vicious, involving, as it does, the installing of agents, with semi-despotic 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, etc.²³²

Commissioner Morgan looked with hope on

* * * the settled policy of the Government to break up reservations, destroy tribal relations, settle Indians upon their own homesteads, incorporate them into the national life, and deal with them not as nations or tribes or bands, but as individual citizens. The American Indian is to become the Indian American. * * * ²³³

The rapid process of individualizing the Indian, Commissioner Morgan felt, was best indicated by the reduction of reserves.

²³⁴ More than 17,400,000 acres, or about one-seventh of all Indian land had been acquired by the Government during the year.²³⁵

Commissioner Morgan reported:

* * * the growing recognition on the part of Western people that the Indians of their respective States and Territories are to remain permanently and become absorbed into the population as citizens. * * *

There is also a growing popular recognition of the fact that it is the duty of the Government, and of the several States where they are located, to make ample provision for the secular and industrial education of the rising generation, * * * ²³⁶

Commissioner Morgan refused to grant further licenses for Indians to leave the reservation for the purpose of travel with "Wild West." shows on the grounds of the demoralizing influence.²³⁷

* * * * I consider the payment of cash to Indians," Commissioner Morgan wrote, "except in return for service rendered or labor performed for themselves or their people, as of very little real benefit in a majority of cases * * * ²³⁸

In the matter of traders, the policy of the office was to permit at least two on every reservation.

Competition within the reservation, in addition to that growing up outside, is fostered by licensing on each reserve as many traders as practicable.²³⁹

Commissioner Browning, in 1895, reports progress, particularly in the education and the employment of the Indians.

* * * a large increase has been made in the number of Indian employees, and in filling positions at agencies and schools Indians have been given the preference for appointment when found competent to do the work required.²⁴⁰

In education, opposition from the older Indians appears to have lessened.²⁴¹ Enrollment and school attendance increased.

* * * without resort to coercion even to the extent allowed by law. * * * I have refrained from using such means, preferring the better course of moral suasion and convincing arguments, and finding them ultimately effective. It gives me pleasure to note the success of such methods, * * * ²⁴²

²³⁵ *Ibid.*, p. VI.

²³⁶ *Ibid.*, p. XXXIX. Of the reduction of Indian-owned lands Commissioner Morgan felt constrained to say:

This might seem like a somewhat rapid reduction of the landed estate of the Indians, but when it is considered that for the most part the land relinquished was not being used for any purpose whatever, that scarcely any of it was in cultivation, that the Indians did not need it and would not be likely to need it at any future time, and that they were, as is believed, reasonably well paid for it, the matter a sumes quite a different aspect. The sooner the tribal relations are broken up and the reservation system done away with the better it will be for all concerned. If there were no other reason for this change, the fact that individual ownership of property is the universal custom among civilized people of this country would be a sufficient reason for urging the handful of Indians to adopt it. (P. XXXIX.)

²³⁷ *Ibid.*, pp. VI-VII.

²³⁸ *Ibid.*, pp. VIII, LVII. By letter of August 4, 1890, the Secretary of the Interior directed that no more licenses be granted. (Ibid., p. LVII.) On the issuance of passes to Indians leaving a reservation, see Chapter 8, sec. 10A (2).

²³⁹ Rep. Comm. Ind. Aff., 1890, p. CXVIII.

²⁴⁰ *Ibid.*, L.X. However, Commissioner Morgan felt the whole license system was archaic, "* * * a relic of the old system of considering an Indian as a ward, a reservation as a corral, and a tradership as a golden opportunity for plunder and profit." (Ibid., p. LIX.)

²⁴¹ Rep. Comm. Ind. Aff., 1895, p. 1.

²⁴² *Ibid.*, p. 3.

²⁴³ *Ibid.*, p. 4.

²²⁸ Rep. Comm. Ind. Aff., 1889, pp. 3-4.

²²⁹ Rep. Comm. Ind. Aff., 1890.

²³⁰ *Ibid.*, pp. IV-V. See sec. 3B infra.

²³¹ *Ibid.*, pp. CXVIII-CXIX. Salaries ranged from $800 to $2,200, and averaged $1,533. See fn. 142, *supra*.

²³² *Ibid.*, p. V.

²³³ Rep. Comm. Ind. Aff., 1890, p. VI. For an index of prevailing policy on allotment versus tribal ownership, see the Act of March 3, 1893, 27 Stat. 557, 561 (Kickapoo).

24

Commissioner Browning reports in detail on the leasing of Indian lands. The Act of February 28, 1891,²⁴³ authorized the leasing of unallotted or tribal lands, and allotted lands where age or disability of allottee warrants it. By Act of August 15, 1894,²⁴⁴ and later acts these leasing statutes were broadened.

On this point, Commissioner Browning stated:

* * * the indiscriminate leasing of allotments will not be permitted. * * * the indiscriminate leasing of allotments would defeat the very purpose for which they were made. * * * ²⁴⁵

Commissioner Jones,²⁴⁶ like his predecessor, reports progress in all fields, follows a statistical pattern of summarizing, and offers accompanying papers in support. The activity of the Bureau of Indian Affairs centered mainly about education; allotment and the problems arising therefrom—leasing, homesteading, surveying; the sale of liquor; railroads; and disturbances on reservations.

## E. THE PERIOD FROM 1905 TO 1927

Commissioner Francis E. Leupp, in his first report in 1905, presents his outlines of an Indian policy as "* * * one of the fruits of my twenty years' study of the Indian face to face and in his home, as well as of his past and present environment * * * ²⁴⁷"

The Indian, says Commissioner Leupp.

* * * will never be judged aright till we learn to measure him by his own standards, as we whites would wish to be measured if some more powerful race were to usurp dominion over us.²⁴⁸

Commissioner Leupp has various recommendations for a new Indian policy—in education, in individualizing Indian land and money, in weaning the Indian from the licensed trader, in making him a part of his community.²⁴⁹

To carry out this policy,

* * * our main hope lies with the youthful generation * * *. The task we must set ourselves is to win over the Indian children by sympathetic interest and unobtrusive guidance. It is a great mistake to try, as many good persons of bad judgment have tried, to start the little ones in the path of civilization by snapping all the ties of affection between them and their parents, and teaching them to despise the aged and non-progressive members of their families. * * * ²⁵⁰

²⁴³ S. c. 3, 26 Stat. 794, 795 partly embodied in 25 U. S. C. 397. See Chapter 15, sec. 19, Chapter 11, sec. 5.

²⁴⁴ 28 Stat. 286, 305. See Chapter 15, sec. 19, Chapter 11, secs. 1C and 5.

²⁴⁵ Rep. Comm. Ind. Aff., 1895, p. 34.

²⁴⁶ Rep. Comm. Ind. Aff., 1807.

²⁴⁷ Rep. Comm. Ind. Aff., 1905, p. 1. Many of Commissioner Leupp's views on Indian affairs are set forth in The Indian and His Problem (1910).

²⁴⁸ *Ibid.*, p. 1. To illustrate his point, Commissioner Leupp goes on to say:

Suppose, a few centuries ago, an absolutely alien people like the Chinese had invaded our shores and driven the white colonists before them to districts more and more isolated, destroyed the industries on which they had always subsisted, and crowned all by disarming them and penning them on various tracts of land where they could be fed and clothed and cared for at no cost to themselves, to what condition would the white Americans of today have been reduced? In spite of their vigorous ancestry they would surely have lapsed into barbarism and become pauperized. No race on earth could overcome, with forces evolved from within themselves, the effect of such treatment. That our red brethren who have not been wholly ruined by it is the best proof we could ask of the sturdy traits of character inherent in them. (P. 2.)

²⁴⁹ *Ibid.*, pp. 3-5.

²⁵⁰ *Ibid.*, p. 2.

Manual training is the basis of Commissioner Leupp's educational policy. He would limit the ordinary Indian boy scholastically to enough of the "3 R's" so that

* * * he can read the simple English of the local newspaper, can write a short letter which is intelligible though maybe ill-spelled, and knows enough of figures to discover whether the storekeeper is cheating him. * * * ²⁵¹

Of the policy of individualizing the Indian through division of tribal lands and tribal funds, Commissioner Leupp says:

* * * it is our duty to set him upon his feet and sever forever the ties which bind him either to his tribe, in the communal sense, or to the Government. This principle must become operative in respect to both land and money.

* * * ²⁵² Thanks to the late Senator Henry L. Dawes of Massachusetts, we have for eighteen years been individualizing the Indian as an owner of real estate by breaking up, one at a time, the reservations set apart for whole tribes and establishing each Indian as a separate landholder on his own account. Thanks to Representative John F. Lacey of Iowa, I hope that we shall soon be making the same sort of division of the tribal funds.²⁵³

In order that the Indian might rapidly become a member of his community instead of a "necessary nuisance,"²⁵⁴ Commissioner Leupp would encourage him to trade in local market towns; he would have Indian money deposited in local banks; he would teach him to shop competitively instead of with the obsolescent licensed trader.

In 1908, Commissioner Leupp reports the success of his plan

* * * for systematic cooperation between various departments and bureaus of the Government, so as to get rid of the "wheels within wheels" which are so grave a source of waste in administration.²⁵⁵

The Reclamation Service, Geological Survey, and Forest Service in the Department of the Interior, and the Bureaus of Plant Industry and Animal Industry in the Department of Agriculture cooperated with the Bureau of Indian Affairs on specific projects of common interest.²⁵⁶

In 1911, Commissioner Valentine reports individual Indian money as a source of both good and harm. It had been used for houses, farm repairs, etc., helping to quicken industrial development of the Indians.²⁵⁷ It had also caused traders to accumulate extravagant habits in the possessors of funds, and caused a great increase in indebtedness.²⁵⁸ He recommends a continuance of the policy of "liberal supervision" over Indian funds by superintendents.²⁵⁹

²⁵³ *Ibid.*, p. 3. Commissioner Leupp would have a girl trained in the domestic arts necessary for frontier life—cooking, sewing, washing, and ironing (p. 3).

²⁵⁴ *Ibid.*, p. 3.

²⁵⁵ *Ibid.*, p. 4. Two years later Congress enacted legislation providing for the breaking up of tribal funds. Act of March 2, 1907, 34 Stat. 1221, 25 U. S. C. 119. See Chapter 15, sec. 23B; Chapter 10, sec. 4; Chapter 9, sec. 6.

²⁵⁶ *Ibid.*, p. 4.

²⁵⁷ Rep. Comm. Ind. Aff., 1908, p. 2. See sec. 3, infra, for a discussion of the extensive cooperation between bureaus and departments that has been effected.

²⁵⁸ *Ibid.*, pp. 2-9 The joint projects were the result either of direct approach between departments, or specific legislation. E. g., the Act of May 30, 1908, 35 Stat. 558 directed the Secretary of the Interior to cause an examination of the lands on the Fort Peck Reservation to be made by Reclamation Service and Geological Survey (p. 3). See sec. 3C, infra, and Chapter 12, sec. 7.

²⁵⁸ Rep. Comm. Ind. Aff., 1911, p. 21.

²⁵⁹ *Ibid.*, p. 22.

²⁶⁰ *Ibid.*, p. 21.

THE OFFICE OF INDIAN AFFAIRS

25

Various amendments²⁰⁰ to the Allotment Act permitting alienation had been passed, some causing difficulty. The Act of June 25, 1910,²⁰¹ requiring that the Secretary determine the heirs of deceased allottees and issue patents in fee entailed

* * * a vast amount of work; many allotments are now of 20 years' standing; estates are contested; and the questions of law, and particularly of fact, become extremely difficult, largely through difficulty in obtaining Indian testimony of value. As allotments have been made on 55 reservations, and upon the Winnebago Reservation alone— one of the smaller reservations—there are 600 heirship cases, the work to be done under this act will become one of the greater tasks of the office. * * * ²⁰²

The leasing system, in general operation since 1891 "* * * raises some of the gravest questions of policy with which the Indian Office has to deal."²⁰³ Commissioner Valentine analyzes the cases where leasing has been of real value to the Indian— where the Indian is already farming as much as his capital and help permit; where the Indian has chosen some other industrial pursuit than farming; where he is ill or otherwise incapacitated.²⁰⁴ For the most part, however, "* * * leasing as it has been practiced is * * * a positive detriment to the Indians. * * * a steady rental from his land is one of the strongest incentives not to begin to work."²⁰⁵

Commissioner Valentine reports the result of investigation into the status of "State" Indians—Indians who have long been more or less independent of the Federal Government.²⁰⁶

* * * It is noteworthy that in many cases these Indians have worked out for themselves, with some assistance from their States, problems which the service has still to meet in other parts of the field.²⁰⁷

Although, by the Act of May 8, 1906,²⁰⁸ the Secretary of the Interior was given the power, before the expiration of the 25-year trust period, to issue a patent in fee "whenever he shall be satisfied that any Indian allottee is competent and capable of managing his or her affairs * * *," a conservative policy was followed.²⁰⁹ Each application had to be considered on its merits, and was accompanied by a report of the superintendent. However, even with this conservative policy, during the first 3 years of the law's operation, 60 percent of the patentees disposed of their land and its proceeds.²¹⁰

Commissioner Valentine, therefore, inaugurated a policy of requiring more rigid proof of competency, and superintendents were required to answer more specific questions.²¹¹ In his report for 1911, he sums up his policy thus:

* * * I am opposed to granting patents in fee unless circumstances clearly show that a title in fee will be of undoubted advantage to the applicant. * * * In the

²⁰⁰ See Chapter 5, secs. 11B and 11C. And cf. Rep. Comm. Ind. Aff., 1911, p. 26.

²⁰¹ 36 Stat. 855. See Chapter 5, sec. 11C.

²⁰² Rep. Comm. Ind. Aff., 1911, p. 26.

²⁰³ *Ibid.*, p. 26. See Chapter 11, sec. 5 and Chapter 15, sec. 19.

²⁰⁴ Rep. Comm. Ind. Aff., 1911, pp. 26-27.

²⁰⁵ *Ibid.*, p. 27.

²⁰⁶ E. g. the Catawba Indians of South Carolina, over whom the State of South Carolina had assumed sovereign rights without federal objection. It had treated with the Indians since 1763, had granted them a reservation and had attempted to extinguish their title in 1840. The Alabama Indians in Texas lived on land granted to them conditionally by the state about 1850. Rep. Comm. Ind. Aff., 1911, pp. 46, 47.

²⁰⁷ Rep. Comm. Ind. Aff., 1911, p. 46.

²⁰⁸ 34 Stat. 182, 183, generally known as the Burke Act. See Chapter 5, sec. 11B.

²⁰⁹ Schmeckebler, *op. cit.*, pp. 150-151.

²¹⁰ *Ibid.*, p. 151.

²¹¹ According to Schmeckebler (*op. cit.*, p. 151), between 1909 and 1912, 3,400 applications for patents were approved, and approximately 2,000 denied.

face of existing evidences of carelessness and incompetence any liberal policy of giving patents in fee would be utterly at cross-purposes with the other efforts of the Government to encourage industry, thrift, and independence.²¹²

In 1917, under Commissioner Cato Sells,²¹³ a more drastic policy was inaugurated.

Broadly speaking, a policy of greater liberalism will henceforth prevail in Indian administration to the end that every Indian, as soon as he has been determined to be as competent to transact his own business as the average white man, shall be given full control of his property and have all his lands and moneys turned over to him, after which he will no longer be a ward of the Government.

Pursuant to this policy, the following rules shall be observed:

1. *Patents in fee.*—To all able-bodied adult Indians of less than one-half Indian blood, there will be given as far as may be under the law full and complete control of all their property. Patents in fee shall be issued to all adult Indians of one-half or more Indian blood who may, after careful investigation, be found competent, provided, that where deemed advisable patents in fee shall be withheld for not to exceed 40 acres as a home.

Indian students, when they are 21 years of age, or over, who complete the full course of instruction in the Government schools, receive diplomas and have demonstrated competency will be so declared.

2. *Sale of lands.*—A liberal ruling will be adopted in the matter of passing upon applications for the sale of inherited Indian lands where the applicants retain other lands and the proceeds are to be used to improve the homesteads or for other equally good purposes. A more liberal ruling than has hitherto prevailed will hereafter be followed with regard to the applications of noncompetent Indians for the sale of their lands where they are old and feeble and need the proceeds for their support.

3. *Certificates of competency.*—The rules which are made to apply in the granting of patents in fee and the sale of lands will be made equally applicable in the matter of issuing certificates of competency.

4. *Individual Indian moneys.*—Indians will be given unrestricted control of all their individual Indian moneys upon issuance of patents in fee or certificates of competency. Strict limitations will not be placed upon the use of funds of the old, the indigent, and the invalid.

5. *Pro rata shares—trust funds.*—As speedily as possible their pro rata shares in tribal trust or other funds shall be paid to all Indians who have been declared competent, unless the legal status of such funds prevents. Where practicable the pro rata shares of incompetent Indians will be withdrawn from the Treasury and placed in banks to their individual credit.

This is a new and far-reaching declaration of policy. It means the dawn of a new era in Indian administration. It means that the competent Indian will no longer be treated as half ward and half citizen. It means reduced appropriations by the Government and more self-respect and independence for the Indian. It means the ultimate absorption of the Indian race into the body politic of the Nation. It means, in short, the beginning of the end of the Indian problem.²¹⁴

Competency commissions were set up, and superintendents were requested to furnish—

* * * a list of all Indians of one-half or less Indian blood, who are able-bodied and mentally competent,

²¹² Rep. Comm. Ind. Aff., 1911, pp. 22-23.

²¹³ Cato Sells was Commissioner of Indian Affairs for 8 years under President Wilson (from 1913 to 1921), the first Commissioner to hold office for that length of time.

²¹⁴ Report of the Commissioner of Indian Affairs, 1917, pp. 3-4, declaration of policy of April 17, 1917. (Schmeckebler, *op. cit.*, pp. 152-153.) From 1917 to 1920, 10,956 fee simple patents were issued, as compared with 9,804 from 1906 to 1916. (Schmeckebler, *op. cit.*, p. 154. Also Rep. Comm. Ind. Aff., 1920, p. 8.)

267785-41-4

26

twenty-one years of age or over, together with a description of land allotted to said Indians, and the number of the allotment. It is intended to issue patents in fee simple to such Indians.²⁷⁵

The question of Indian citizenship became prominent after Indian participation in the World War.²⁷⁶ In reply to critics, Commissioner Sells wrote in 1920:

* I have, however, gone further and taken the position that the citizenship of Indians should not be based upon their ownership of lands, tribal or in severalty, in trust or in fee, but upon the fact that they are real Americans, and favorable report has been made on a bill introduced in Congress having for its purpose the conferring of citizenship on all Indians, but retaining control of the estates of incompetents.²⁷⁷

Commissioner Sells adopted the policy with respect to individual Indian money of paying it directly to competent adult Indians without deposit, or having it disbursed in large sums by the superintendents from funds deposited under their supervision.²⁷⁸

In 1921, with a change in administration, the new commissioner²⁷⁹ declared:

This practice, however [of issuing patents in fee to Indians of one-half or less Indian blood without any further proof of competency], has been discontinued, and in all cases involving the issuance of patents to Indians, the practice is now to require a formal application and proof of competency.²⁸⁰

The result of the shift in policy is clear from the following tabulation of patents issued from 1921 to 1926:²⁸¹

Fiscal year:

<table><tr><td>1921</td><td>1, 692</td></tr><tr><td>1922</td><td>911</td></tr><tr><td>1923</td><td>625</td></tr><tr><td>1924</td><td>913</td></tr><tr><td>1925</td><td>451</td></tr><tr><td>1926</td><td>322</td></tr></table>

In his brief report for 1922, Commissioner Burke devotes a considerable portion to education.

In the education of the Indian youth lies the hope of the future generations of the American Indian. In this time, when it is so essential to practice economy in every possible way, it should be realized that the child who is allowed to grow up in this country without being taught English and manual skill in some useful occupation is always in danger of becoming a liability. It is false economy to neglect the education of any children.²⁸²

An industrial survey of all the reservations, based on a house-to-house canvass of Indian families, was inaugurated

* * * to ascertain their condition, needs, and resources, with the view to organizing the work of the reservation

²⁷⁵ Letter of March 7, 1919, to superintendents in Schmeckebler, op. cit., pp. 153-154. This liberal policy of Commissioner Sells under the secretaryship of Franklin K. Lane has resulted in litigation based on forced allotments and sale of land for taxes, which is still one of the chief concerns of the Department of Justice. See Chapter 11.

²⁷⁶ By Act of November 6, 1919, 41 Stat. 350, 8 U. S. C. 3, citizenship had been made available to Indian participants in the World War, honorably discharged, on declaration of courts of competent jurisdiction. See Chapter 8, sec. 2.

²⁷⁷ Rep. Comm. Ind. Aff., 1920, p. 8. By Act of June 2, 1924, c. 233, 43 Stat. 253, 8 U. S. C. 3, 173, such general citizenship was granted. See Chapter 8, sec. 2.

²⁷⁸ Rep. Comm. Ind. Aff., 1920, p. 50.

²⁷⁹ Charles H. Burke became the new Commissioner of Indian Affairs, and served for more than 8 years under 2 Presidents. The reports again become brief summaries as they were at the beginning of the Bureau of Indian Affairs in 1824.

²⁸⁰ Rep. Comm. Ind. Aff., 1921, p. 23.

²⁸¹ Schmeckebler, op. cit., p. 154.

²⁸² Rep. Comm. Ind. Aff., 1922, p. 7.

service so that each family will make the best use of its resources. * * * ²⁸³

The industrial survey was to form the basis of a more comprehensive one for each reservation, embracing the needs—for health, education, housing, sanitation, social welfare on the one hand, and the resources—both tribal and individual on the other. The purpose of such a survey would be “to formulate for each reservation a definite program or policy which may be followed for such term of years as will place the Indians on a self-supporting basis.”²⁸⁴

Increasing cooperation with Federal health agencies, as well as with state, local, and voluntary agencies, is noted during Commissioner Burke's administration.²⁸⁵

It is hoped that closer cooperation may be established between States having Indian populations and the Federal Government in dealing with questions of education, health, and law enforcement. Probably States should ultimately assume complete responsibility for the Indians within their borders, but pending that time, there is much to be done by the Federal service.²⁸⁶

## F. THE PERIOD FROM 1929 TO 1939

The survey of the social and economic conditions of the Indians, begun at the invitation of the Interior Department in 1926 by the Institute for Government Research,²⁸⁷ was completed in 1928.

The publication of this report helped to inaugurate a new era in the Indian Service. The criticisms and recommendations contained in the report commanded the attention of the Bureau,²⁸⁸ as well as the general public. The report raised serious doubts as to the wisdom of such established Indian policies as that which had developed around the allotment problem. Of the policy of individual allotment, the report declared:

* * * Not accompanied by adequate instruction in the use of property, it has largely failed in the accomplishment of what was expected of it. It has resulted in much loss of land and an enormous increase in the details of administration without a compensating advance in the economic ability of the Indians. The difficult problem of inheritance is one of its results. * * * (P. 41.)

Even more serious doubts were raised as to the efficiency and adequacy of the public services rendered by the Indian Bureau. On the question of health, the survey reported:

The health of the Indians as compared with that of the general population is bad. (P. 3.)

* * * For some years it has been customary to speak of the Indian medical service as being organized for public health work, yet the fundamentals of sound public health work are still lacking. (P. 190.)

²⁸³ Ibid., p. 11.

²⁸⁴ Ibid., p. 11. That program was later followed in the establishment of a unit of the Soil Conservation Service, known as Technical Cooperation, Bureau of Indian Affairs (TC-BIA), in November 1935. The purpose of the TC-BIA is to make such surveys and recommendations for each reservation, in collaboration with the Soil Conservation Service.

²⁸⁵ Rep. Comm. Ind. Aff., 1928, p. 1.

²⁸⁶ Ibid., 1928, p. 7.

²⁸⁷ Meriam, Problem of Indian Administration (1928). In a publication of the American Indian Defense Association (American Indian Life, Bulletin No. 12, June 1928, p. 6) the survey was evaluated.

The report of the Institute for Government Research is the most important single document in Indian Affairs since Helen Hunt Jackson's "The Century of Disherence" published 45 years ago. It contains three sections which intrinsically are very fine. (Health, Education, and Women and Family and Community Life.) Its 847 pages of text are a result of team-work between ten specialists. The studied moderation of its language; the avoidance of a suggestion even as to where responsibility shall be placed; the omission (save in regard to health and education) of most of the facts which give a quality of sinister deliberateness to the wrongs suffered by Indians; its nearly total avoidance of those skeleton closets, the handling of individual Indian trust moneys and reimbursable indebtedness; these qualities of the report increase its convincingly and usefulness.

²⁸⁸ R. P. Comm. Ind. Aff., 1928, pp. 4-7.

28

be pressed without wearying. To this end, adjustments of Civil Service arrangements to Indian need must be sought; but in order that standards may not be lowered, opportunities for professional training must be made gen- uinely accessible to Indians. With respect to unofficial Indian self-service, a steadily widening tribal and local participation by Indians in the management of their own properties and in the administration of their own services must be pursued.

(4) Reorganization of the Indian Service.—A decenteralizing of administrative routine must be progressively attempted. The special functions of Indian Service must be integrated with one another and with Indian life, in terms of local areas and of local groups of Indians. An enlarged responsibility must be vested in the superintendents of reservations and beyond them, or concurrently, in the Indians themselves. This reorganization is in part dependent on the revision of the land allotment system; and in part it is dependent on the steady development of cooperative relations between the Indian Service as a Federal agency, on the one hand, and the States, counties, school districts, and other local units of government on the other hand.²⁹⁰

Commissioner Collier's major policies found statutory expression in the Wheeler-Howard (Indian Reorganization) Act of June 18, 1934.²⁹¹ The extent to which they have been embodied in existing law and practice will be one of the principal inquiries of the substantive chapters that follow.

## G. HISTORICAL RETROSPECT

Recent trends in our national Indian policy are set forth against the background of history in a statement prepared by the Office of Indian Affairs in 1938, at the request of the Department of State:²⁹²

* * * The chief issue around which Indian policy revolved prior to 1933 was whether this transfer of ownership [of land and resources] could best be brought about through peaceful treaty, through force of arms, or through the usual legal forms of patent, deed and mortgage. Indian policy and Indian administration, even today when this motive has been reversed, is underlaid with strata of the earlier policies, and can be understood only as these earlier policies are understood.

During the years when the rivalries of England, France and Spain on the continent gave the various Indian tribes positions of strategic power, negotiations with these tribes were carried on by the Colonies and later by the United States on the basis of international treaties. These treaties acknowledge the sovereignty of Indian tribes and implied the acknowledgement of a possessory right in the soil that the tribes occupied. After the cession of Louisiana by France in 1803, the termination of the war with Great Britain in 1814 and the cession of Florida by Spain in 1819, there developed an increasing tendency to deny the sovereignty of Indian tribes and to deal with them by force of arms.²⁹³

The use of military force to control Indians was a dominant factor in United States policy from the 1820s until the 1850s and did not wholly disappear with the last of the Indian wars in the 1890s. This warfare materially handicapped the settlement of the West and proved costly to the Federal Government. It was officially estimated with probable correctness about 1870 that Indian wars had

cost the Government in excess of $1,000,000 for every dead Indian.²⁹⁴

While treaties and wars had failed to break down the internal organization and culture of the Indian tribes, the allotment policy brought with it a growing roster of white superintendents, farm agents, teachers, inspectors and missionaries who superseded Indian leaders and to a large extent succeeded in destroying Indian culture. There was developed a system of closed reservations ruled autocratically by the Indian Bureau, which in 1819 had been transferred from the War Department to the Department of the Interior. This autocratic rule was carried out under an ever-increasing number of uncorrelated statutes; a never codified and vast body of administrative regulations; and the personal government of Indian agents who were politically appointed. Misery became extreme upon the reservations, graft became notorious and led to more Indian outbreaks, and as a measure of relief, President Grant, in his first term, placed Christian mission bodies administratively in charge of Indian affairs in numerous parts of the country. This official identification of missionary bodies with Indians gradually was brought to an end in later years, but the political identification of the mission bodies with the Indian Bureau had not been dissolved until very recent times. * * * It was not acknowledged that Indians were entitled to the constitutional guarantees of liberty of conscience.²⁹⁵

The guiding concepts in what may be called the autocratic phase of the Federal policy toward Indians were the destruction of all Indian tribal bonds, the effacing of Indian languages and cultural heritages, the forcing of the Indian as an individual to become identified with and lost in the white life, and the breaking of tribal, communal and even family landholdings into individual allotments of farm, timber and grazing lands.²⁹⁶

In the autocratic phase of Indian policy, a uniform pattern of administration and of program was imposed throughout the Indian country.²⁹⁷

Against the above background the present phase of governmental Indian policy can be better understood. The present policy continues the Federal guardianship over Indians and trusteeship over Indian property while seeking to establish individual and group liberty within the guardianship.²⁹⁷ * * * In the new phase, the stress is against uniformity and in the direction of the maximum of local adaptation, both of method and of goal.²⁹⁸

In all of these phases of the present-day government policy toward Indians, an underlying factor is the realization that the Indian is no longer the "vanishing American," but is actually increasing in numbers. During the past eight years the growth in population as reported by Indian agencies in the United States has been at the rate of over 1 per cent per annum. As with various other peoples during periods of development, the birth rate has been decreasing, but the decline in the Indian death rate has been even greater.

To help Indians in making adjustments to the drastic changes in their way of life made necessary by the overwhelming invasion of the alien white race, and yet to foster the perpetuation of much of their cultural heritage, to train and stimulate them for complete economic self-sufficiency, looking toward a better standard of living for this vital race, are the ultimate goals of the present Administration.

Although only slightly over a third of a million in population in a nation of approximately 130 million people, the Indians of the United States will become an even greater factor in its cultural, social, and economic life.²⁹⁹

²⁹⁰ Annual Report of The Secretary of the Interior, 1933, Rep. Comm. Ind. Aff., pp. 68-69.

²⁹¹ 48 Stat. 984, 25 U. S. C., 461 et seq. See Chapter 4, sec. 16.

²⁹² "A Brief Statement on the Background of Present-day Indian Policy" (submitted November 21, 1938).

This statement was for the use of the American delegation at the Eighth International Conference of American States, at Lima, Peru, December 9, 1938.

²⁹³ Ibid., pp. 1-2.

²⁹⁴ Ibid., p. 2.

²⁹⁵ Ibid., p. 3.

²⁹⁶ Ibid., pp. 3-4.

²⁹⁷ Ibid., p. 8.

²⁹⁸ Ibid., p. 6.

²⁹⁹ Ibid., p. 8.

³⁰⁰ Ibid., p. 9.

THE OFFICE OF INDIAN AFFAIRS

29

SECTION 3. ADMINISTRATION OF THE INDIAN SERVICE TODAY

A. ORGANIZATION AND ACTIVITIES

The organization and functions of the Office of Indian Affairs
today are pictured in the accompanying chart.⁵³⁰

The Commissioner of Indian Affairs is the titular and func-
tioning head of the entire office, both in Washington and in the
field. He has directly under him the Assistant Commissioner,
who shares the duties of office and acts in his place. Those duties
are: General management of and promulgation of policies cover-
ing all matters relating to Indians and to the natives of Alaska,
including economic development; organization of tribes; educa-
tion; health activities; land acquisitions, leases, sales; forest
and grazing management; construction, maintenance, and opera-
tion of irrigation facilities; construction and upkeep of roads
and bridges on Indian reservations; conservation work; and
relief activities; and the interpretation of the needs of the Indian
Service in legislative and budgetary terms.

⁵³⁰ Chart on Organization and Functions prepared by the Office of Indian Affairs as of May 1940. All the descriptions of duties contained in this section are based on information supplied by the Indian Office. The chart appears also in Blauch, Educational Service for Indians (President's Advisory Committee on Education, Staff Study No. 18, 1939), p. 28.

The Probate Division and the Legal Division are jointly under
the Office of the Commissioner of Indian Affairs and under the
Solicitor for the Department.

The Probate Division <sup>211</sup> determines heirs and probates wills of all deceased Indians outside the Five Tribes and Osage Nation; reviews the work of the Probate Attorneys of the Five Tribes, and the probate recommendations of the Osage Tribal Attorney and Superintendent; and handles income and inheritance tax matters of the Five Tribes.

The Legal Division reviews matters covering legal and other
questions affecting the Indians, including reviewed reports on
Congressional bills affecting Indians, and passes on a host of
other legal matters involving Indians or their property, rights-
of-way, condemnation, taxation, irrigation, determination of
heirs, etc.

The Assistants to the Commissioner are the Commissioner's
immediate staff officers. They are assigned from time to time
numerous duties which devolve upon the Commissioner's Office.
In general the Assistants to the Commissioner serve to coordinate
the diverse functions of the Service and to stimulate cooperative
planning. There are at present three field representatives, four

<sup>211</sup> See Chapter 11, sec. 6.

ORGANIZATION CHART OF THE OFFICE OF INDIAN AFFAIRS.

1940

30

special assistants, and two finance officers. One field representative is in charge of contacts with Indian tribes; the second, in charge of conferences and the relating of educational, health, and other facilities to new projects and management problems; the third, in charge of cooperation with other agencies. Of the four special assistants, one is in charge of land use, consolidation, and heirship problems. A second coordinates projects involving land use and resettlement and works chiefly with the Statistics Section and the Rehabilitation Division. A third handles all matters relating to Indian tribal organization, Indian delegations, law and order, individual Indian moneys, field investigations, and works chiefly with the Indian Organization Division and the Miscellaneous Section. A fourth is in charge of personnel policies and works with the Personnel Division. The finance officer and his assistant are in charge of all fiscal matters for the Office of Indian Affairs—its budget, expenditure of funds under appropriation acts, and legislation.

In the Washington office, organizational functions are broken up into 17 divisions and sections directly under the Office of the Commissioner. At the head of each division is a director. The division directors are responsible to the Commissioner for the general development of policies and programs and the professional direction of activities within the spheres of their several interests. They work through the agency superintendents and in cooperation with each other and the assistants to the Commissioner. Each division director collaborating with the finance officer prepares estimates of needed funds, presents the case to the Bureau of the Budget and the committees of Congress. They advise the finance officer in the allotment of funds to agencies. They collaborate with the personnel officer in the preparation of civil-service examinations and in the selection, placement in-service training, transfer, and separation of personnel.

The Education Division has professional direction of the educational program of Indian schools in the United States and of schools for the natives of Alaska; handles all matters relating to the attendance of Indian children in public schools; administers educational loan funds; coordinates social welfare services.

The Civilian Conservation Corps, Indian Division, administers C. C. C. funds allocated to the Indian Service and gives general direction to work projects, safety measures, and the enrollee program of welfare, instruction, and recreation.

The Irrigation Division has general direction of the construction, operation, and maintenance, including power service, of irrigation projects, together with the development of subsistence gardens and domestic and stock water shoppes on Indian reservations.

The Roads Division develops and directs policies and programs of road and bridge work on Indian reservations, including construction and maintenance, prepares specifications, and pirochess all road machinery, equipment, and trucks.

The Health Division develops policies and programs of health conservation and gives professional supervision to all medical, dental, nursing, and sanitation activities.²¹²

The Division of Forestry and Grazing encourages conservation practices, exercises professional direction of the general forestry and grazing program.

The Division of Extension and Industry stimulates and aids the development of agricultural and livestock enterprises and home improvement.

The Land Division is responsible for protection and proper handling of all Indian-owned land, and for acquisition of additional lands needed for tribal, individual, school, hospital, or other purposes; and reviews or initiates legislation pertaining to Indian lands, mineral rights, and tribal claims.

The Statistics Section collects, tabulates, and analyses data obtained from the field on population, health, Indian income, land, agricultural, and other activities of Indians needed in dealing with Indian problems and Indian development; and coordinates statistical needs, improves statistical records, and designs forms for use in the field and by divisions of the Washington office.

The Rehabilitation Division applies for allotments of emergency relief funds, and in consultation with other divisions and with field superintendents, allots to agencies these funds for approved rehabilitation projects.

The Indian Organization Division assists Indian tribes and bands to draft constitutions, bylaws, and charters of incorporation under authority of the Act of June 18, 1934,³¹³ the Oklahoma Indian Welfare Act,³¹⁴ and the Alaska Reorganization Act³¹⁵; conducts educational work and supervises elections in connection therewith; assists tribes to make intelligent use of the powers acquired through organization and incorporation; reviews ordinances and resolutions adopted by tribes and presented for departmental review or approval; and determines the tribal status of individual Indians or groups of Indians.

The Miscellaneous Section initiates correspondence on the following: maintenance of law and order, individual Indian money, claims for withdrawal of pre-rata shares and Sioux benefits, traders, dance and ceremonies, Indian monuments, delegations to Washington, and a variety of miscellaneous subjects.

The Personnel Division develops personnel policies, stimulates and coordinates in-service training, discovers employment opportunities in private industry for Indians, and provides records and procedures for the orderly and efficient management of personnel.

The Fiscal Division directs and supervises bookkeeping and accounting matters; examination of accounts and claims; requisition of funds for advance to disbursing agents; investment and deposit of Indian funds; and property accounting.

The Service Section provides services such as a stenographic pool, mail room for handling of incoming and outgoing mails, and organized files of all pertinent correspondence for the orderly and efficient handling of the business of the office.

The Construction Division in cooperation with the superintendents and the several division directors, prepares plans and specifications, estimates costs, and supervises the construction of all Indian Service buildings; gathers engineering data and prepares engineering reports on buildings, utility services, and plant maintenance.

The Information Division advises on articles for publication and public speeches by employees of the Office of Indian Affairs; assembles and interprets to the public pertinent facts concerning Indians and the work of the Indian Office; and has editorial supervision over the office publication "Indians at Work."

Directly under the Office of Indian Affairs, and solely responsible to it are field organizations covering 64 superintendents and 25 independent units—6 sanatoria, 10 schools, and 9 district offices.

The superintendent is responsible directly to the Commissioner of Indian Affairs for the orderly and efficient administration of governmental affairs relating to the Indians of his jurisdiction, including moneys, property, and personnel. He coordinates the work of his staff and utilizes all available technical and professional aid from the Washington and district offices in developing and administering a program that serves the needs of the Indians of his jurisdiction.

²¹² See Chapter 12, sec. 3.

³¹³ See Chapter 4, sec. 16.

³¹⁴ See Chapter 23, sec. 13.

³¹⁵ See Chapter 21, sec. 9.

THE OFFICE OF INDIAN AFFAIRS

31

An examination of the regulations under which the Indian Service operates will illustrate its manifold activities. The codified regulations cover Alaska; antiquities; attorneys and agents; Civilian Conservation Corps, Indian Division; credit to Indians; education of Indians; enrollment and realignment of Indians; forestry, grazing; heirs and wills; hospital and medical care of Indians; irrigation projects; law and order; leases, permits, and sale of minerals on restricted Indian lands; moneys, tribal and individual; patents in fee, competency certificates, sales, and reinvestment of proceeds; records (Oklahoma Indian tribes); relief of Indians; rights-of-way; roads and highways; trading with Indians; wilderness and roadless areas; wildlife. In addition to the regulations contained in the Code of Federal Regulations there are many special regulations.²¹⁶

## B. PERSONNEL

The Act of July 9, 1832,²¹⁷ which provided for the appointment of a Commissioner of Indian Affairs at a salary of $3,000, made no provision for specific clerical assistance or contingent expenses of the office. The Appropriation Act of June 18, 1834,²¹⁸ provided for the first time, in addition to $3,000 for salary of the Commissioner of Indian Affairs, $5,000 for salary of clerks in the office of the Commissioner, $700 for salary of the messenger, and $800 for contingent expenses.²¹⁹

Provisions for various increases and new offices gradually appeared in the appropriation acts.²²⁰

The Commissioner of Indian Affairs²²¹ and the Assistant Commissioner²²² are appointed by the President with the consent of the Senate. All other employees²²³ are appointed by the Secretary of the Interior after certification by the Civil Service Commission,²²⁴ with the exception of specified field personnel and certain

²¹⁶ This list is taken from title 25 of the Code of Federal Regulations (1940) pp. 1-3. The major subjects covered by these regulations are discussed in other chapters of this book.

²¹⁷ 4 Stat. 564, 25 U. S. C. 1, R. S. § 462, 25 U. S. C. 2, R. S. § 463.

²¹⁸ 4 Stat. 677.

²¹⁹ This is the budget for the Office of the Commissioner only, and does not include the field. There were separate appropriations for the "Indian Department."

²²⁰ By the Act of June 15, 1880, 21 Stat. 210, the Commissioner's salary was raised to $3,500 and the budget for the office raised to $77,980. By the Act of August 5, 1882, 22 Stat. 219, the Commissioner's salary was raised to $4,000. By the Act of July 31, 1886, 24 Stat. 172, the Office of Assistant Commissioner was created at a salary of $8,000. The Assistant Commissioner also performed the duties of chief clerk. The Commissioner's salary was raised to $5,000 by the Act of April 28, 1902, 32 Stat. 129, 158. Under the Appropriation Act of June 18, 1940, 76th Cong., 5d sess., Pub., No. 640, the Commissioner's salary is $9,000 annually and the Assistant Commissioner's $7,500. By the Act of February 26, 1907, 34 Stat. 935, 936, the Chief Clerk's Office was separated from that of Assistant Commissioner and by the Act of June 17, 1910, 36 Stat. 468, the Chief Clerk's title was changed to Second Assistant Commissioner. By the Act of May 10, 1916, 39 Stat. 66, 100, the Second Assistant Commissioner's Office was abolished and the title of Chief Clerk reinstated. This act also provided compensation for fester, financial clerk, chiefs of divisions, law clerk, examiner of irrigation accounts, draftsman, etc.

²²¹ Act of July 9, 1832, 4 Stat. 564, 25 U. S. C. 1, R. S. § 462.

²²² Act of July 31, 1886, 24 Stat. 172.

²²³ On June 30, 1926, Schmeckebler reported 5,002 employees in the entire service, 190 in Washington office, with a total salary of $619,313. (Schmeckebler, op. cit., p. 293.) There were, according to the 1940 budget, 9,173 employees in the Bureau of Indian Affairs (including emergency and conservation employees), of which 388 were in Washington, with a total salary of $14,781,927. (Figures from Office of Indian Affairs, May, 1940.)

²²⁴ The Civil Service Commission has to some extent recognized the specialized problems that exist in the Indian Service, and has held examinations for the purpose of filling specific positions in the Indian Service, such as those for teachers and nurses. (Annual Report of the Secretary of the Interior (1937), p. 241; *ibid.* (1936), p. 203.) Annual reports of the Secretary of the Interior comment on the extreme diversity in the types of personnel needed, and on the need for persons with ability to handle human relation problems, in addition to their particular training.

²²⁵ administrative offices in the Washington office.²²⁵ The salaries are fixed basically by the Classification Act of March 4, 1923,²²⁶ The extent to which Indians themselves are employed is elsewhere discussed.²²⁷

²²⁷ Up to 1893 officers in immediate control of Indians were known as "agents." They were appointed by the President with the consent of the Senate.²²⁸ To remove this office from politics the Act of March 3, 1893,²²⁹ authorized the Commissioner of Indian Affairs, with the approval of the Secretary of the Interior, to devolve the duties of agent upon the superintendent of the school located at the agency.

²²⁹ With the closing of Government schools many "superintendents" were left without schools. "Agency" has again become the term for units of administration, but officers in charge are still called "superintendents."²³⁰

²³¹ The superintendent of an agency is a bonded officer, responsible for all expenditures.²³¹ The superintendent is authorized to acknowledge deeds, administer various oaths, take depositions.²³² He instructs new employees in their duties and the statutory limitations or prohibitions.²³² He may not serve as a guardian of an Indian under appointment by a local court.²³⁴

²³³ No employee of the United States Government may have any interest or concern in any trade with the Indians, except for and on account of the United States; and any person offending is liable to a penalty of $5,000 and removal from office.²³⁵ The purchase of articles from Indians for home use by Government employees is not held to constitute trade.²³⁶

²³⁷ According to Commissioner Collier,

> The major principle of field administration is that the Superintendent of a jurisdiction is the responsible officer in that jurisdiction. He is responsible directly to the Commissioner of Indian Affairs. There is no intervening administrative authority between him and the Commissioner, nor is there any intervening administrative authority between him and the employees under his jurisdiction. * * * ²⁷⁷

²³⁸ Commissioner Cato Sells expressed the same idea in 1916:

> Inspecting officers should impress superintendents with the fact that they are held responsible for every activity

(Annual Report of the Secretary of the Interior (1937), pp. 240-242; Annual Report of the Secretary of the Interior (1938), p. 256.)

²³⁹ The need for such peculiarly equipped employees was voiced by Commissioners for more than 100 years. See sec. 2, supra. Also Schmeckebler, op. cit., pp. 296-299.

²⁴⁰ See Schmeckebler, op. cit., pp 293, 294, for a list of such exceptions.

²⁴¹ 42 Stat. 1488. Amended by the Act of May 28, 1928, 43 Stat. 776 (Welsh Act); Act of July 3, 1930, 46 Stat. 1003 (Brookhart Act); and by Executive Order No. 6746, June 21, 1934.

²⁴² S. c. Chapter 8, sec. 4B.

²⁴³ Schmeckebler, op. cit., p. 282.

²⁴⁴ 27 Stat. 612, 614, 25 U. S. C. 66. This provision was carried in later

Indian appropriation acts up to March 1, 1907, 34 Stat. 1015, 1020,

²⁴⁵ Schmeckebler, op. cit., pp. 282-284.

²⁴⁶ Department of the Interior, U. S. Indian Field Service Regulations (1939), Section A—Administration, p. A-8. The superintendent is bonded in such amount as the President or Secretary of the Interior may require.

²⁴⁷ *Ibid.*, pp. A-11, A-12.

²⁴⁸ *Ibid.*, p. A-9.

²⁴⁹ *Ibid.*, p. A-9. See Chapter 12, sec. 2.

²⁵⁰ *Ibid.*, p. A-52. Based on R. S. § 2078 (derived from Act of June 30, 1834, 4 Stat. 735, 738), 25 U. S. C. 68; Act of June 22, 1874, 18 Stat. 146, 177, 25 U. S. C. 87. See letter of Attorney General dated February 15, 1940, holding that an employee of the Indian Service may not accept employment after hours as a salaried manager of an Indian community store. And see Memo, Sol. I. D., November 7, 1939, holding Indian Service employee may not lease land from Indian for home site.

²⁵¹ *Ib. d.*, p. A-52. (Order of Secretary of the Interior, September 30, 1912.) See also Act of June 19, 1939, 53 Stat. 840, 25 U. S. C. (Supp.) 87a.

²⁵² Office of Indian Affairs, Order No. 481, Field District Plan, June 21, 1937, p. 2.

32

relating to Indians within their jurisdiction, from "saving the babies" to taking care of old Indians. (Department of Interior, Office of Indian Affairs, "Methods and Suggestions for Inspecting Officers of the United States Indian Service," February 23, 1916, p. 7.)

### C. COOPERATION WITH OTHER AGENCIES

Some decentralization of administrative control over Indian life²⁸⁸ has been effected in recent years by the distribution of governmental powers among the federal, state, and tribal governments. In earlier decades, cooperation, where it has existed, has been primarily between the Indian Bureau and other federal agencies,²⁹⁰ not between the Indians and the agencies. In recent years various federal agencies have been in direct contact with the Indians. They include the Soil Conservation Service, the Farm Security Administration, the Social Security Board, the Civilian Conservation Corps,²⁹⁰ the National Youth Administration, the Public Works Administration, and the Works Progress Administration.

The General Land Office assists the Indian Office in the sale of land which the Indian tribes cede to the United States.²⁹¹ It also adjudicates or administers Indian allotments and Indian homesteads,²⁹² and issues allotments on certification by the Commissioner of Indian Affairs,²⁹³ who must also consent to the granting of various licenses by the Federal Power Commission²⁹⁴ and other agencies for irrigation, right-of-way, power development, and other land use.

In the field of conservation the Indian Service often unites for common action with one or more state or federal bureaus. The Interdepartmental Rio Grande Board, composed of representatives of the Indian Service, Grazing Service, and the Bureau of Reclamation of the Department of the Interior, and the Soil Conservation Service, the Forest Service, the Farm Security Administration and the Bureau of Agricultural Economics of the Department of Agriculture,²⁹⁵ seeks to determine how a native rural population of Indians and Spanish Americans can subsist permanently through the utilization of the Rio Grande watershed in central and northern New Mexico.²⁹⁶

A survey and planning unit was created by the Soil Conservation Service to study Indian reservations and prepare plans for proper land use and conservation for the Indian Service.²⁹⁷ This unit (TC-BIA) has supplied a new type of integrated administrative procedure in which two services are functionally integrated, though preserving technical and organizational distinct-

²⁸⁸ See Chapter 5. See also sec. 2F. *supra*, for a statement of policy regarding decentralization by Commissioner Collier in 1933.

²⁹⁰ E. a., the Bureaus of Plant and Animal Industry of Agriculture and the Reclamation Service, Geological Survey and Forest Service of Interior had cooperated with the Indian Bureau under Commissioner Leupp in 1908. (See sec. 2 *supra*. Also see Rep. Comm. Ind. Aff. 1908, pp. 2-9.)

²⁹¹ The Indian Office has a special division devoted to the C. C. C. See sec. 3A *supra*.

²⁹² Conover, The General Land Office (1923), p. 76.

²⁹³ *Ibid.*, p. 88.

²⁹⁴ *Ibid.*, pp. 61-62.

²⁹⁵ Since the primary responsibility for administering an Indian reservation is in the Commissioner of Indian Affairs and the Secretary of the Interior, it has been urged that the Federal Power Commission must decline to issue a permit if the Secretary believes that a proposed power development would be inconsistent with the purposes of the reservation. (Letter of Assistant Commissioner of Indian Affairs to Chairman, Federal Power Commission, February 19, 1935.)

²⁹⁶ National Resources Planning Board, General Land Office, and Reconstruction Finance Corporation are consulting members. (Annual Report of the Secretary of the Interior (1939) p. 64.)

²⁹⁷ Annual Report of the Secretary of the Interior (1928), p. 253.

²⁹⁸ Annual Report of the Secretary of the Interior (1936), p. 188. The unit is commonly designated as TC-BIA, Technical Cooperation, Bureau of Indian Affairs.

²⁹⁹ The TC-BIA works with and through the Indian superintendents, their local staffs, and Indian governing bodies. They are consulted in its surveys, they comment on its findings, and they are expected to carry out its program.²⁹⁹

Section 4 of the Act of March 10, 1934,²⁹⁹ provides:

The Office of Indian Affairs, the Bureau of Fisheries, and the Bureau of Biological Survey are authorized, jointly, to prepare plans for the better protection of the wild-life resources, including fish, migratory waterfowl and upland game birds, game animals and fur-bearing animals, upon all the Indian reservations and unallotted Indian lands coming under the supervision of the Federal Government.

It also empowers the Secretary of the Interior to promulgate such plans and to make rules for their enforcement.

Because there is danger of depletion of fish and animals, particularly in the case of spawning salmon, where fox or mink farmers may exploit small local runs, the Office cooperates with the Alaska Game Commission and the Division of Alaskan Fisheries, Bureau of Fisheries, in settling problems affecting the rights of Indians.

An interesting cooperative enterprise is the joint operation by the Indian Service and the Bureau of Animal Industry of a sheep genetics laboratory at Fort Wingate, New Mexico.²⁹⁹

The Indian Service has always cooperated with the Department of Justice in enforcing prohibition laws and suppressing liquor traffic with the Indians, and generally in litigation affecting Indians.

Other cooperating agencies²⁹⁷ include the Extension Service of the Department of Agriculture, the Bureaus of Mines, Standards, Animal Industry, and Plant Industry, the Public Health Service,³⁰⁰ the Children's Bureau of the Department of Labor, state agricultural colleges, and education and welfare bureaus of various states.³⁰¹

Mr. Joseph C. McCaskill, one of Commissioner Collier's four assistants, has summed up the recent trend in Indian administration:

> Thus we see the Indian Office divesting its authority into three directions: first among other agencies of the Federal Government which have specialized services to render; second among the local state and county governments which are much more closely associated with the problems in some areas than Washington can be; and finally among the tribal governments which have organized governing bodies, and which expect eventually to take over and manage all of the affairs of Indians. Perhaps thus, but not at once, it may be found possible to cease special treatment, special protective and beneficial legislation for the Indians, and they shall become self-supporting, self-managing, and self-directing communities within our national citizenry. (P. 76.)²⁹⁹

³⁰⁰ Annual Report of the Secretary of the Interior (1936), p. 188.

³⁰¹ Indian Office Order 483, United States Indian Field Service, Rules and Regulations (1929), section A—Administration, pp. A-5, A-6.

³⁰² 48 Stat. 401, 402.

³⁰³ See Annual Report of the Secretary of the Interior (1938), p. 253.

³⁰⁴ Annual Report of the Secretary of the Interior (1936), pp. 169-172, 180-183.

³⁰⁵ The United States Public Health Service, since 1926, has detailed personnel to the Indian Service, for health and medical work on reservations. *Ibid.*, p. 179.

³⁰⁶ Under the Johnson-O'Malley Act of April 16, 1934, 48 Stat. 596, amended by Act of June 4, 1936, 49 Stat. 1458, state educational and health services were made available to certain Indian tribes by contract between the State and the Federal Government. As of 1939, California, Washington, and Minnesota have contracted for the education of Indian children, Wisconsin for child-welfare services, and Arizona for limited educational services. (Annual Report of the Secretary of Interior (1939), p. 64.) See Chapter 12, sec. 1.

³⁰⁷ Joseph C. McCaskill, The Cessation of Monopolistic Control of Indians by the Indian Office, in *Indians of the United States*, April 1940, pp. 69-76. This paper was prepared for the First Inter-American Conference on Indian Life, held at Patzcuaro, Mexico, in April 1940.

34

INDIAN TREATIES

edly confirmed by the federal courts and newer successfully challenged.⁴

As late as 1828 Attorney General William Wlat, in an opinion to the President on Georgia and the Treaty of Indian Sprig,⁵ found it necessary to answer the contention that treaties with Indians were not effective because they were not treaties with an independent nation, and because, even if independent, the Indians were uncivilized. In discussing the first objection the Attorney General said, in part:

> If it be meant to say that, although capable of treating, their treaties are not to be construed like the treaties of nations absolutely independent, no reason is discerned for this distinction in the circumstance that their independence is of a limited character. If they are independent to the purpose of treating, they have all the independence that is necessary to the argument. * * * The point, then, once conceded, that the Indians are independent to the purpose of treating, their independence is, to that purpose, as absolute as that of any other nation.

* * * Nor can it be conceded that their independence as a nation is a limited independence. Like all other independent nations, they are governed solely by their own laws. Like all other independent nations, they have the absolute power of war and peace. Like all other independent nations, their territory is inviolable by any other sovereignty. Questions have arisen as to the character of their title to that territory; but these discussions have resulted in this conclusion: that, whether their title be that of sovereignty in the jurisdiction or the soil, or a title by occupancy only, it is such a title as no other nation has a right to interfere with, or to take from them; and which no other nation can rightfully acquire, but by the same means by which the territory of all other nations, however absolute their independence, may be acquired—that is, by cession or conquest. * * * As a nation they are still free and independent. They are entirely self-governed—self-directed. They treat, or refuse to treat, at their pleasure; and there is no human power which can rightfully control them in the exercise of their discretion in this respect. In their treaties, in all their contracts with regard to their property, they are as free, sovereign, and independent as any other nation. And being bound, on their own part, to the full extent of their contracts, they are surely entitled, on every principle of reason, justice, and equity to hold those with whom they thus treat and contract equally bound to them. Nor can I discover the slightest foundation for applying different rules to the construction of their contracts from those which are applied to all other contracts, because they reside within the local limits of the sovereignty of Georgia. (Pp. 132-135.)

The Circuit Court for the Michigan District said:⁶

* * * It is contended that a treaty with Indian tribes, has not the same dignity or effect, as a treaty with a foreign and independent nation. This distinction is not authorized by the constitution. Since the commencement of the government, treaties have been made with the Indians, and the treaty-making power has been exercised in making them. They are treaties, within the meaning of the constitution, and, as such, are the supreme laws of the land. (P. 346.)

It is clear that the Constitution recognized as part of the supreme law of the land treaties made with Indian tribes prior to its ratification.⁷ The Supreme Court said with reference to the provisions of an Indian treaty:⁸

⁴ Holden v. Joy, 17 Wall. 211, 242-243 (1872); Worcester v. Georgia, 6 Pet. 515, 559 (1832); Turner v. American Baptist Missionary Union, 24 Fed. Cas. No. 14251 (C. C. Mich. 1852).

⁵ 2 Op. A. G. 110 (1828).

⁶ Turner v. American Baptist Missionary Union, 24 Fed. Cas. No. 14251 (C. C. Mich. 1852).

⁷ Worcester v. Georgia, 6 Pet. 515, 559 (1832). Examples of such treaties are found in the opinion of the Supreme Court in *Cherokee Nation v. Georgia*, 5 Pet. 1, 32-38 (1831).

⁸ United States v. Forty-three Gallons of Whiskey, 93 U. S. 188 (1876).

* * * the Constitution declares a treaty to be the supreme law of the land; and Chief Justice Marshall, in *Foster and Elam v. Neilson*, 2 Pet. 314, has said, "That a treaty is to be regarded, in courts of justice, as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision." No legislation is required to put the seventh article in force; and it must become a rule of action, if the contracting parties had power to incorporate it in the treaty of 1863. About this there would seem to be no doubt. * * * (P. 196.)

Generally speaking, the incidents attaching to a treaty with a foreign power have been held applicable to Indian treaties. Thus, in accordance with the general rule applicable to foreign treaties, the courts will not go behind a treaty which has been ratified to inquire whether or not an Indian tribe was properly represented by its head men, nor determine whether a treaty has been procured by duress or fraud, and declare it inoperative for that reason.⁹

* * * the treaty, after executed and ratified by the proper authorities of the Government, becomes the supreme law of the land, and the courts can no more go behind it for the purpose of annulling its effect and operation, than they can behind an act of Congress.¹⁰

An Indian treaty, like a foreign treaty, may be modified by mutual consent.¹¹

The fact that Congress has, by legislation, repealed, modified, or disregarded various Indian treaties has been thought by some to show that Indian treaties are of inferior legal validity. The fact is, however, that the power of Congress to enact legislation in conflict with treaties is well established in the field of foreign affairs, as well as in the field of Indian affairs.¹²

In upholding legislation contravening a treaty, the Supreme Court in *Lone Wolf v. Hitchcock*¹³ said:

* * * Until the year 1871 the policy was pursued of dealing with the Indian tribes by means of treaties, and, of

⁵ United States v. New York Indians, 173 U. S. 464 (1890); United States v. O'd Settlers, 148 U. S. 427, 466 (1893). See fn. 7, supra, and on the form of tribal government, see Chapter 7, sec. 3.

⁶ Fellows v. Blacksmith, 60 U. S. 366, 372 (1856).

¹¹ 14 Pet. 4 (1840). Justice McLean said in the case of *Latimer v. Polcet*:

> It is argued that it was not in the power of the United States and the Cherokee nation by the treaty of Tellico, in 1798, to vary in any degree the treaty line of Holton; so as to affect private rights, or the rights of North Carolina. The answer to this is, that the Tellico treaty does not put part to alter the boundary of the Holston treaty, but by the acts of the parties, this boundary is recognized. Not that a new boundary was substituted, but that the old one was substantially designated. Will any one deny that the parties to the treaty are competent to determine any dispute respecting its limits. In what mode can a controversy of this nature be settled? As the treaty determines, or as the contracting parties, if their language in the treaty be wholly indefinite, or the natural objects called for are uncertain or contradictory, there is no power but that which formed the treaty which can remedy such defects. And it is a sound principle of national law, and applies to the treaty-making power of this government, whether exercised with a foreign nation or an Indian tribe, that all questions of disputed boundaries may be settled by the parties to the treaty. And to the exercise of the high functions by the government, within its constitutional powers, neither the rights of a state, nor those of an individual, can be interposed. We think it was in the due exercise of the powers of the executive and the Cherokee nation, in concluding the treaty of Tellico, to recognize in terms, or by acts, the boundary of the Holston treaty. (P. 13.)

¹² The Supreme Court in *Ex parte Webb*, 225 U. S. 663 (1912), said:

> Of course, an act of Congress may repeal a prior treaty as well as it may rep at a prior act. *The Cherokee Tobacco*, 11 Wall. 616; *Fong Yee T'ing*, *United States*, 149 U. S. 698, 720; *Ward v. Race Horse*, 163 U. S. 504, 511; *Draper v. United States*, 164 U. S. 240, 243. (P. 683.)

¹³ 187 U. S. 553, 565-566 (1903). Also see *Cherokee Tobacco*, 11 Wall. 616 (1870); *Ward v. Race Horse*, 163 U. S. 504 (1896); *Thomas v. Gay*, 169 U. S. 364 (1898); 16 Op. A. G. 300 (1879). Accord: 26 Op. A. G. 340, 347 (1907); 541 D. 401 (1934).

At one time this principle was not well established. This is shown by the following excerpt from H. R. pt. No. 474, Comm. on Indian Affairs, 23d Cong., 1st sess., May 20, 1834:

> It was not competent for an act of Congress to alter the stipulations of the treaty or to change the character of the agents appointed under it. (P. 5.)

THE LEGAL FORCE OF INDIAN TREATIES

35

course, a moral obligation rested upon Congress to act in good faith in performing the stipulations entered into on its behalf. But, as with treaties made with foreign nations, *Chinese Exclusion Case*, 130 U. S. 581, 600, the legislative power might pass laws in conflict with treaties made with the Indians. *Thomas v. Gay*, 169 U. S. 264, 270; *Ward v. Race Horse*, 163 U. S. 504, 511; *Spalding v. Chandler*, 160 U. S. 394, 405; *Missouri, Kansas & Texas Ry. Co. v. Roberts*, 152 U. S. 114, 117; *The Cherokee Tobacco*, 11 Wall. 616.

The power exists to abrogate the provisions of an Indian treaty, though presumably such power will not be exercised only when circumstances arise which will not only justify the government in disregarding the stipulations of the treaty, but may demand, in the interest of the country and the Indians themselves, that it should do so. When, therefore, treaties were entered into between the United States and a tribe of Indians it was never doubted that the power to abrogate existed in Congress, and that in a contingency such power might be availed of from considerations of governmental policy, particularly if consistent with perfect good faith towards the Indians. * * *

The Attorney General has ruled: ¹⁴

By the 6th article of the Constitution, treaties as well as statutes are the laws of the land. There is nothing in the Constitution which assigns different ranks to treaties and to statutes. The Constitution itself is of higher rank than either by the very structure of the Government. A statute not inconsistent with it, and a treaty not inconsistent with it, relating to subjects within the scope of the treaty-making power, seem to stand upon the same level, and to be of equal validity; and as in the case of all laws emanating from an equal authority, the earlier in date yields to the later. (P. 357.)

This doctrine has been qualified by some cases. In the case of *Jones v. Meehan* ¹⁵ it was held that title to land granted to an Indian by treaty cannot be divested by any subsequent action of the lessor, Congress or the Executive department.

The construction of treaties is the peculiar province of the judiciary; and, except in cases purely political, Congress has no constitutional power to settle the rights under a treaty, or to affect titles already granted by the treaty itself. *Wilson v. Wall*, 6 Wall., 83, 89; *Reichart v. Fels*, 6 Wall. 160; *Smith v. Stevens*, 10 Wall. 321, 327; *Holden v. Joy*, 17 Wall. 211, 247 (P. 32).

Thus the issuance of a patent by the General Land Office upon lands reserved by a treaty with Indian tribes is void.¹⁶

The Supreme Court has often coupled a statement about the absolute power of Congress to supersede a treaty obligation with a discussion of the moral obligation of the Government to redress

¹⁴ 13 Op. A. G. 354 (1870).

* * * congress has never abrogated treaties promiscuously by legislation, those with Indians, Chinese, and the French treaty of 1778, being the chief ones in point.

Boyd, The Expanding Treaty Power, in Selected Essays on Constitutional Law, vol. 3. The Nation and The States (1938), pp. 410, 414.

The Solicitor of the Department of the Interior has said:

> Congress has paramount authority over such reservations and the Indians occupying them (Lone Wolf v. Hiteback, 187 U. S. 553, 565), and may, if it sees fit so to do, provide game laws to restrict the Indians in their natural and immemorial rights of fishing and hunting. *In se Black河, supra* 109 Fed. 129 (D. C. W. D. Wis. 1901). And even though such laws should conflict with the provisions of prior treaties with the Indians, there is respectable authority for upholding their validity. *Thus in The Cherokee Tobacco Case* (11 Wall. 616), it was held that a law of Congress imposing a tax on tobacco, if in conflict with a prior treaty with the Indians, was paramount to the treaty. *And in Ward v. Race Horse* (163 U. S. 504), the court ruled that the provision in treaty of 1824, 1869, with the Bannock Indians, was within the limits of what is now the State of Wyoming, that "they shall have the right to hunt upon the unoccupied lands of the United States so long as game may be found there", was superseded by the provisions of the Enabling Act admitting Wyoming Indians the right to exercise the hunting privilege within the limits of the State in violation of its laws. (54 I. D. 517, 520 (1934)).

¹⁵ 175 U. S. 1 (1899), holding unconstitutional Joint Resolution of August 4, 1894, 28 Stat. 1918, authorizing departmental approval of a lease after the execution of a different lease by the Indian landowner.

¹⁶ *United States v. Carpenter*, 111 U. S. 347 (1884). Also see *Spalding v. Chandler*, 160 U. S. 394 (1896). It has been held that an Executive

such a violation. In holding that an act of Congress extended revenue laws over the Indian Territory, despite a prior treaty exempting tobacco raised on Indian reservations, the Court wrote: ¹⁷

A treaty may supersede a prior act of Congress,⁸ and an act of Congress may supersede a prior treaty.⁹ In the cases referred to these principles were applied to treaties with foreign nations. Treaties with Indian nations within the jurisdiction of the United States, whatever considerations of humanity and good faith may be involved and require their faithful observance, cannot be more obligatory. They have no higher sanctity; and no greater inviolability or immunity from legislative invasion can be claimed for them. The consequences in all such cases give rise to questions which must be met by the political department of the government. They are beyond the sphere of judicial cognizance. In the case under consideration the act of Congress must prevail as if the treaty were not an element to be considered. If a wrong has been done, the power of redress is with Congress, not with the judiciary, and that body, upon being applied to, it is to be presumed, will promptly give the proper relief. (P. 621.)

* * Foster & Alam v. Neilson*, 2 Peters, 314.

‡‡ Taylor v. Morton, 2 Curtis, 454; *The Clinton Bridge*, 1 Walworth, 155.

By many statutes and occasionally by treaties, the Court of Claims has been authorized to determine many claims for treaty violations.¹⁸

In construing a jurisdictional act,¹⁹ the Supreme Court discussed the liability of the United States for a violation of a treaty with the Creek tribe:

* * * But we think it plain that that act only gave authority to the Court of Claims to hear and determine claims "for the amount due or claimed to be due said bands from the United States under any treaties or laws of Congress." It does not purport to alter or enlarge any rights conferred on petitioners by the treaties or laws of the United States or authorize any recovery except in accordance with the legal principles applicable in determining those rights under laws and treaties of the United States. See *United States v. Old Settlers*, 148 U. S. 427, 468, 469; *United States v. Mille Lac Chippewas*, 200 U. S. 498, 500. (P. 436.)

order which purports to restore to the public domain land granted by treaty to Indians is inoperative. 18 Op. A. G. 141 (1885).

¹⁷ *Cherokee Tobacco*, 11 Wall. 616 (1870). For an example of the superseding of a treaty by the General Allotment Act see Op. Sol. I. D., M. 25390, June 30, 1930, 53 I. D. 133.

The moral obligation to perform treaties faithfully was recognized in the preamble to the Treaty of August 9, 1814, with the Creek Nation, 7 Stat. 120, which referred to the fulfillment "with punctuality and good faith" by the United States of former treaties with the Creeks up to the time of their waging war against the United States. Also see Chapter 14, sec. 2, fn. 34b.

An example of a treaty superseding a statute is noted in Choctaw Indians, 13 Op. A. G. 354 (1870).

¹⁹ See Chapter 14, sec. 6, and Chapter 19, sec. 3; Ray A. Brown, The Indian Problem and the Law (1930), 39 Yale L. J. 307, 323-324, and Meriam, Problem of Indian Administration (1928), pp. 805-811. Treaties are often the foundation for claims. *United States v. Old Settlers*, 148 U. S. 427, 467-468 (1893). Congress may waive the benefit of the rule of res adjudicata by allowing another trial of a claim against the United States. *Cherokee Nation v. United States*, 270 U. S. 476 (1926), or disregarding laches. *United States v. Old Settlers*, 148 U. S. 427, 473 (1893).

²⁰ *Sioux Indians v. United States*, 277 U. S. 424 (1928). The Act of April 11, 1916, 39 Stat. 47 (Sisseton and Wahpeton bands of Sioux), authorizes the Court of Claims to hear and determine claims "for the amount due or claimed to be due said bands from the United States under any treaties or laws of Congress."

The Supreme Court in *United States v. Blackfeather*, 155 U. S. 180 (1894), held that when the United States undertook by treaty to "expose to sale to the highest bidder" the land ceded to the United States by the Indians, and disposed of a large part of such land at private sale, the Federal Government was guilty of a violation of trust.

In a subsequent case the Court held that provisions granting claims against the United States are strictly construed. *Blackfeather v. United States*, 190 U. S. 368, 376 (1903). The Court said:

* * * The moral obligations of the Government toward the Indians, whatever they may be, are for Congress alone to recognize,

36

INDIAN TREATIES

Certain treaties with the Indians were invalidated by hostilities.²⁹ During the Civil War Congress expressly authorized the President to declare all treaties with a tribe engaged in hostility toward the United States abrogated by such tribe, "if in his opinion the same can be done consistently with good faith and legal and national obligations."³⁰

While the United States often abrogated treaty provisions,³¹ some treaties contained drastic penalties for Indians who might commit violations. Article 4 of the Treaty of June 19, 1818,³² required the chiefs and warriors of the tribe to deliver "to the authority of the United States, (to be punished according to law,) each and every individual of the said tribe, who shall, at any time hereafter, violate the stipulations of the treaty * * *." The Treaty of August 9, 1814,³³ after denouncing them as violators or instigators of violation, required the "caption and surrender of all the prophets and instigators of the war, whether foreigners or natives, who have not submitted to the arms of the United States * * *." The Treaty of March 2, 1868,³⁴ provided that a chief violating an essential part of the treaty shall forfeit his position.

Some treaties provided for the modification⁵⁰ or abrogation of previous provisions⁵¹ or declared previous treaties null and void and canceled claims under them,⁵² or nullified preemption rights and reservations created under them,⁵³ or expressly recognized former treaties.⁵⁴

and the courts can exercise only such jurisdiction over the subject as Congress may confer upon them. (P. 373.)

²⁹ See Preamble to Treaty of August 9, 1814 with the Creeks, 7 Stat. 320. Also see Leighton v. United States, 161 U. S. 291, 296 (1895). On what constitutes war between the United States and a tribe see Marks v. United States, 161 U. S. 297 (1896); McCandless v. United States ex rel. Diablo, 25 F. 2d 71 (C. A. 3. 1928).

³⁰ Act of July 5, 1862, 12 Stat. 512, 528. R. S. § 2080, 25 U. S. C. 72, discussed in Holden v. Joy, 17 Wall. 211, 215 (1872).

³¹ See fn. 14, supra.

³² With the Pitavirate Noisy Pawnees, 7 Stat. 173. 174. The same provision was contained in other treaties, such as the Treaty of June 18, 1818, with the Grand Pawnee Tribe, Art. 4. 7 Stat. 172; Treaty of June 22, 1818, with the Pawnee Marharb Tribe, Art. 4. 7 Stat. 175.

³³ With the Creeks, Art. 6, 7 Stat. 120.

³⁴ With the Utes, Art. 17, 15 Stat. 619.

³⁵ For example, see Treaty of January 20, 1825, with the Choctaws, 7 Stat. 234. Sometimes permanent additions to treaties in force were made (Treaty of September 25, 1818, with the Osages, Art. 3, 7 Stat. 183) and rights under previous treaties were preserved (Treaty of July 15, 1830, with the Sacs and others, Art. 12, 7 Stat. 328).

³⁶ The Treaty of August 31, 1822, with the Osages, 7 Stat. 222, abrogates the Treaty of November 10, 1808, Art. 2, 7 Stat. 107; the Treaty of September 3, 1822, with the Sac and Fox Tribes, 7 Stat. 223, abrogates the Treaty of November 3, 1804, 7 Stat. 84; the Treaty of February 28, 1867, with the Pottawatomies, Art. 13, 15 Stat. 531. 534, voids all provisions of former treaties inconsistent with the provisions of this treaty.

The Treaty of April 1, 1850, with the Wyandots, Art. 11, 9 Stat. 987, abrogated and declared null and void all former treaties between the United States and the Wyandots, except provisions previously made for the benefit of individuals "by grants of reservations of lands, or otherwise, which are considered as vested rights, and not to be affected by any thing contained in this treaty."

Article 21 of the Treaty of June 22, 1855, with the Choctaws and Chicksaws, 11 Stat. 611, provided:

> This convention shall supersede and take the place of all former treaties between the United States and the Choctaws, and also, of all treaty stipulations between the United States and the Chicksaws, and between the Choctaws and Chicksaws, inconsistent with this agreement, and shall take effect and be obligatory upon the contracting parties, from the date hereof, whenever the same shall be ratified by the respective councils of the Choctaw and Chicksaw tribes, and by the President and Senate of the United States.

Also see Treaty of August 7, 1856, with the Creeks, Art. 26, 11 Stat. 699.

³⁷ Treaty of January 24, 1826, with the Creeks, Art. 1, 7 Stat. 286.

³⁸ Supplementary articles to the Treaty of December 29, 1825, with the Cherokees, 7 Stat. 488; Treaty of May 18, 1854, with the Sacs and Foxes, Art. 1, 10 Stat, 1074; Treaty of May 8, 1854, with the Kickapoos, Art. 8,

Treaties sometimes provided saving clauses in the event of rejection of some of the articles. For example, article 7 of the Treaty of August 5, 1826, with the Chippewas,³⁵ provides among other things:

* * * But it is expressly understood and agreed, that the fourth, fifth, and sixth articles, or either of them, may be rejected by the President and Senate, without affecting the validity of the other articles of the treaty.

Future contingencies sometimes provided for included violation by a chief of an essential part of the treaty⁵⁷ or relinquishment by chiefs of land reserved by treaty,⁵⁸ nonratification,⁵⁹ nonremoval of the Indians,⁶⁰ abandonment of land⁶¹ and insufficiency of "good tillable land" ceded to the tribe.⁶²

The legal force of Indian treaties did not insure their actual enforcement. Some important treaties were negotiated but never ratified by the Senate,⁶³ or ratified only after a long delay.⁶⁴ Treaties were sometimes consummated by methods amounting to bribery,⁶⁵ or signed by representatives of only a small part of the signatory tribes.⁶⁶ The Federal Government failed to fulfill the terms of many treaties,⁶⁷ and was sometimes unable or unwilling to prevent states,⁶⁸ or white people,⁶⁹ from violating treaty rights of the Indians.

10 Stat. 1078; Treaty of July 31, 1855, with the Ottawas and Chippewas, Art. 3, 11 Stat. 621.

²⁰ Treaty of October 25, 1895, with the Cherokees, Art. 1, 7 Stat. 93; Treaty of July 18, 1815, with the Pottawatamies, Art. 4, 7 Stat. 123; Treaty of July 18, 1815, with the Pottawatamies, Art. 4, 7 Stat. 123; Treaty of September 25, 1818, with the Illinois Nation, Art. 2, 7 Stat. 181.

³¹ 7 Stat. 299.

³² Treaty of March 2, 1868, with the Utes, Art. 13, 15 Stat. 619.

³³ Treaty of September 18, 1823, with the Florida Indians, Additional Art., 7 Stat. 224, 226.

³⁴ By Art. 16, the rejection of any article would not affect the other provisions in the Treaty of June 28, 1862, with the Kickapoos, 13 Stat. 623; Art. 6 of the Treaty of November 23, 1838, with the Creeks, 7 Stat. 574, provided that the rejection of a certain article would not affect the other provisions.

³⁵ For example, see Treaty of November 15, 1854, with the Rogue River Tribe, Art. 4, 19 Stat. 1119.

³⁶ Treaty of September 21, 1833, with the Ottoes and Missourias, Art. 8, 7 Stat. 429.

³⁷ Treaty of September 18, 1823, with the Florida Tribes, Art. 9, 7 Stat. 224.

³⁸ Hoopes, Indian Affairs and their Administration, with Special Reference to the Far West (1932), p. 86.
³⁹ Ibid., p. 115.

⁴⁰ Kinney, A Continent Lost—A Civilization Won (1937), pp. 37, 38, 52, 56, 71, 94; Schmeckebler, The Office of Indian Affairs, Its History, Activities, and Organization (1927), p. 31.

⁴¹ Kinney, op. cit., pp. 44, 45.

⁴² Kinney, op. cit., p. 68; Hoopes, op. cit., pp. 180, 218, 219; Schmeckebler describes this condition:

> One of the defects of the treaty system was that agreements were continually being made which were not carried into effect. This was due in part to inefficient administration, in part to the failure of Congress to make the necessary appropriations, and in part to the inherent difficulties presented by the nature of the problem.

* Some of the stipulations of almost all treaties which it was impossible to carry out were those guaranteeing the Indians against the intrusion of the white settlers and providing for the punishment of white persons committing offenses against the Indians. As the exterior boundaries reserved to the Indians were thousands of miles in extent, it was impossible to police this area in such a way as to prevent trespass or to secure evidence against offenders. (P. 62.)

⁴³ See Kinney, op. cit., p. 71.

⁴⁴ Ibid., pp. 148, 149, 174, 184, 208; Hoopes, op. cit., pp. 84, 226, 228-232, 236; Schmeckebler, op. cit., p. 44.

Treaty guarantees of land to the Indians were often violated. In 1789 Secretary of War Mcllhenry, in his instructions to the Commissioners for negotiating a treaty with the Cherokees, made the following comment: "The arts and practices to obtain Indian land, in defiance of treaties and the laws, and at the risk of involving the whole country in war, have become so daring, and received such countenance, from persons of prominent influence, as to render it necessary that the means to countervail them shall be augmented." Am. St. Papers, Indian Affairs, vol. 1, p. 639, quoted by Schmeckebler, ibid., pp. 24-25.

INTERPRETATION OF TREATIES

37

SECTION 2. INTERPRETATION OF TREATIES.⁴⁸

A cardinal rule in the interpretation of Indian treaties is that ambiguities are resolved in favor of the Indians.⁴⁹

For example, a proviso in an Indian treaty which exempts lands from "levy, sale, and forfeiture" is not, in the absence of expressions so limiting it, confined to the levy and sale under ordinary judicial proceedings, but also includes the levy and sale by county officers for the nonpayment of taxes.⁵⁰

An agreement embodied in an act of Congress which in terms "ceded, granted, and relinquished" to the United States all of their "right, title, and interest," did not make the lands public lands in the sense of being subject to sale or other disposition under the general land laws, but only in the manner provided for in the special agreement with the Indians.⁵¹

The best interests of the Indians,⁵² however, do not necessarily coincide with a grant to them of the broadest power over lands. The Supreme Court has held that the best interests of the Indians do not require that they should be allotted lands in fee rather than lands held in trust by the government for them.⁵³

While trying to serve the Indians' best interests, the courts have indicated that they will not dispense with any of the conditions or requirements of the treaties upon any notion of equity or general convenience or substantial justice. Justice Harlan, in the case of *United States v. Choctaw Nation*,⁵⁴ said:

> But in no case has it been adjudged that the courts could by mere interpretation or in reference to its view as to what was right under all the circumstances, incorporate into an Indian treaty something that was inconsistent with the clear import of its words. It has never been held that the obvious, palpable meaning of the words of an Indian treaty may be disregarded because, in the opinion of the court, that meaning may in a particular transaction work what it would regard as injustice to the Indians. That would be an intrusion upon the domain committed by the Constitution to the political departments of the Government. Congress did not intend, when passing the act under which this litigation was inaugurated, to invest the Court of Claims or this court with authority to determine whether the United States had, in its treaty with the Indians, violated the principles of fair dealing. What was said in *The Amiable Isabella*, 6 Wheat. 1, 71, 72, is evidently applicable to treaties with Indians. Mr. Justice Story, speaking for the court, said: "In the first

⁴⁸ Also see Chapter 15, sec. 5C. Agreements with Indians are interpreted according to the same principles as treaties. (See sec. 6, infra.) Martin v. Leallen, 276 U. S. 58, 61 (1928). Mr. Justice Stone said in the case of *Carpetier v. Shaie*, 280 U. S. 363 (1930):

> While in general tax exemptions are not to be presumed and statutes conferring them are to be strictly construed, Heiner v. Colonial Trust Co., 275 U. S. 232, the contrary is the rule to be applied to tax exemptions secured to the Indians by agreement between them and the national government. Chouteau v. Tropp, supra, 675. Such provisions are to be liberally construed. Doubtful expressions are to be resolved in favor of the weak and defenseless people who are the wards of the nation, dependent upon its protection and good faith. Hence, in the words of Chief Justice Marshall, "The language used in treaties with the Indians should never be construed to their prejudice. If words be made use of, which are susceptible of a more extended meaning than their plain import, as connected with the tenor of the treaty, they should be considered as used only in the latter sense." Worcester v. The State of Georgia, 6 Pet. 515, 582. See *The Kansas Indians*, 5 Wall. 737, 760. And they must be construed not according to their technical meaning but "in the sense in which they would naturally be understood by the Indians." Jones v. Mechan, 175 U. S. 1, 11. (Pp. 366-367.)

⁴⁹ Winters v. United States, 207 U. S. 564 (1908); 34 Op. A. G. 439 (1925); 6 Op. A. G. 658 (1914); Worcester v. Georgia, 6 Pet. 515, 582 (1832). And see Art. 11 of Treaty of September 9, 1849, with Navajo, 9 Stat. 974.

⁵⁰ *The Kansas Indians*, 5 Wall. 737 (1866).

⁵¹ The Act of April 27, 1904, 33 Stat. 352 (Crow Reservation) interpreted in *Ash Sheep Co. v. United States*, 252 U. S. 159 (1920).

⁵² See 32 Op. A. G. 586 (1921).

⁵³ Starr v. Long Jim, 227 U. S. 613, 623 (1913).

⁵⁴ 179 U. S. 494 (1900). Also see *United States v. Minnesota*, 270 U. S. 181 (1926).

place, this court does not possess any treaty-making power. That power belongs by the Constitution to another department of the Government, and to alter, amend, or add to any treaty by inserting any clause, whether small or great, important or trivial, would be on our part an usurpation of power and not an exercise of judicial functions. It would be to make, and not to construe a treaty. Neither can this court supply a *casus omissus* in a treaty, any more than in a law. We are to find out the intention of the parties by just rules of interpretation applied to the subject-matter; and, having found that, our duty is to follow it as far as it goes and to stop where that stops—whatever may be the imperfections or difficulties which it leaves behind. * * * In the next place, this court is bound to give effect to the stipulations of the treaty in the manner and to the extent which the parties have declared, and not otherwise. We are not at liberty to dispense with any of the conditions or requirements of the treaty, or to take away any qualification or integral part of any stipulation, upon any notion of equity or general convenience, or substantial justice. The terms which the parties have chosen to fix, the forms which they have prescribed, and the circumstances under which they are to have operation, rest in the exclusive discretion of the contracting parties, and whether they belong to the essence or the modal part of the treaty, equally give the rule to the judicial tribunals." (Pp. 532-533.)

So, too, it has been held that the reservation of a privilege to fish and hunt on lands ceded by a treaty does not prevent the prosecution of tribal Indians violating a conservation law on such lands, since there was no anticipation at the time the treaty was made of the conditions existing when the state conservation law was enacted.⁵⁶

A somewhat different, although related, rule of treaty interpretation is to the effect that, since the wording in treaties was designed to be understood by the Indians, who often could not read and were not learned in the technical language, doubtful clauses are resolved in a nontechnical way as the Indians would have understood the language.⁵⁷

⁵⁷ Kennedy v. Becker, 241 U. S. 556 (1916). The clause "Also, excepting and reserving to them * * * the privilege of fishing and hunting on the said tract of land hereby intended to be conveyed" (Treaty of September 15, 1979 with the Seneca Nation, 7 Stat. 601, 602) was interpreted as

* * * reservation of a privilege of fishing and hunting upon the granted lands in common with the grantees, and others to whom the privilege might be extended, but subject nevertheless to that necessary power of appropriate regulation, as to all those privileged, which inhere d in the sovereignty of the State over the lands where the privilege was exercised. (Pp. 563-564.)

Interpretations of other clauses are noted in sec. 4 of this Chapter and Chapter 6, sec. 3B, and Chapter 14, sec. 7.

⁵⁸ Fleming v. McCurtain, 215 U. S. 56, 60 (1909); Chapter 8, sec. 91. See Worcester v. Georgia, 6 Pet. 515, 551-553 (1832). In commenting on frequent mistakes one writer said:

* * * As the Indians had no written language and few of the chiefs even had a knowledge of English, the negotiations were carried on generally through interpreters, many of whom were inefficient. The description of the lands ceded was also a source of misunderstanding. In the region east of the Mississippi, the geography was fairly well known, and it was possible to describe areas with a fair degree of accuracy by reference to the streams and ridges; the area west of the Mississippi, however, was little known when many of the treaties were made, and the descriptions were of the most indefinite character.

The method of making the treaties varied according to the character of the commissioners negotiating for them. Some were manifestly fraudulent; notably the treaty with the Creeks made in 1825. Others were signed by the Indians practically under duress. For instance, George C. Sibley, factor at Fort Osage, gives the following account of the negotiations with that tribe in 1808:

Thankful
to a private
purchase

THE SCOPE OF TREATIES

39

However, as Boyd has pointed out:⁶⁸

Although in regard to treaties calling for appropriations congress has seemed reluctant to act without making it plain that there was a discretionary right vested in congress in the premises, such appropriations have always been forthcoming.

Apart from this limitation, treaties may contain provisions which could not constitutionally be included in acts of Congress.⁶⁹

Within the broad scope of "all the usual subjects of diplomacy," the Federal Government and the Indian tribes adopted treaties covering not only all aspects of intercourse between Indians and whites but also some of the internal affairs of the tribes themselves. Among the most important of the subjects covered were:¹⁰

A. The international status of the tribe.

1. War and peace.

2. Boundaries.

3. Passports.

4. Extradition.

5. Relations with third powers.

B. Dependence of tribes on the United States.

1. Protection.

2. Exclusive trade relations.

3. Representation in Congress.

4. Congressional power.

5. Administrative power.

6. Termination of treaty-making.

C. Commercial relations.

1. Cessions of land.

2. Reserved rights in ceded land.

3. Payments and services to tribes.

D. Jurisdiction.

1. Criminal jurisdiction.

2. Civil jurisdiction.

E. Control of tribal affairs.

A. THE INTERNATIONAL STATUS OF THE TRIBE

Until the last decade of the treaty-making period, terms familiar to modern international diplomacy were used in the Indian treaties.

The United States sometimes guaranteed the integrity of the territory of a nation;¹¹ unprovoked war was "* * * repelled, prosecuted and determined * * * in conformity with principles of national justice and honorable warfare";¹² some of the Creek Nation acted "contrary to national faith" and "suffered themselves to be instigated to violations of their national honor";¹³ the United States desired that "* * * perfect peace shall exist between the nations or tribes * * *" named and the republic of Mexico.¹⁴

Many provisions show the international status of the Indian tribes,¹⁵ through clauses relating to war, boundaries, passports, extradition, and foreign relations.

⁶⁸ Boyd, The Expanding Treaty Power, in Selected Essays on Constitutional Law, vol. 3. The Nation and the States, (1938), p. 410, 414.

⁶⁹ *Missouri v. Holland*, 52 U. S. 416 (1920). Also see Selected Essays on Constitutional Law, vol. 3, op. cit. fn. 68, pp. 397-435.

⁷⁰ For discussion of removal provisions see sec. 4E of this Chapter. Relevant treaty provisions are discussed in other chapters.

⁷¹ Treaty of September 17, 1778, with the Delawares, Art. 6, 7 Stat. 13,

15; Treaty of August 9, 1814, with the Creeks, Art. 2, 7 Stat. 120, 121.

⁷² Preamble to Treaty of August 9, 1814, with the Creeks, 7 Stat. 120.

⁷³ *Ibid*.

⁷⁴ Treaty of August 24, 1835, with the Comanche and others, Art. 9, 7 Stat. 474, 475.

⁷⁵ Also see Chapter 14, sec. 7.

1. War and peace.—The capacity of Indian tribes to make war was frequently recognized.¹⁶ Most of the very early treaties were treaties of peace and friendship,¹⁷ and often provided for the restoration or exchange of prisoners,¹⁸ and sometime for hostages until prisoners were restored.¹⁹

Indian tribes have also waged wars with states. The state of Georgia and the Creek Nation were engaged in several wars towards the close of the eighteenth century.²⁰

The Supreme Court²¹ commented on the status of Indian wars in these terms:

* * * We recall no instance where Congress has made a formal declaration of war against an Indian nation or tribe; but the fact that Indians are engaged in acts of general hostility to settlers, especially if the Government has deemed it necessary to dispatch a military force for their subjugation, is sufficient to constitute a state of war. Marks v. United States, 161 U. S. 297. (P. 267.)

A few treaties included mutual assistance pacts. By Article 8 of the Treaty of January 9, 1789 with the Wiandot and others,²² the parties agreed to give notice of war or any harm that might be meditated against the other party, "and do all in their power to hinder and prevent the same * * *." Article 2 of the Treaty of July 22, 1814, with the Wyandots and others²³ provided that:

The tribes and bands abovementioned, engage to give their aid to the United States in prosecuting the war against Great-Britain, and such of the Indian tribes as still continue hostile; and to make no peace with either without the consent of the United States.

In some treaties the Indians agreed to suppress insurrections and permit the military occupation of their country by the United States,²⁴ or the establishment of garrisons or forts by the

²⁶ E. g., Treaty of Dancing Rabbit Creek of September 27, 1830, with the Choctaw Nation, 7 Stat. 333, 334:

* * * no war shall be undertaken or prosecuted by said Choctaw Nation but by declaration made in full Council, and to be approved by the U. S. unless it be in self-defence * * * (Art. V).

For a discussion see Fleming v. McCurtain, 215 U. S. 56, 60 (1909).

²⁷ See Treaty of September 17, 1778, with the Delaware Nation, 7 Stat. 13. "That a perpetual peace and friendship shall from henceforth take place * * *" (Art. 2). Later treaties "gave peace." That this was intended to cover "peace and friendship" is made clear in Treaty of January 9, 1789, with the Wyandots, etc., Art. XIII, 7 Stat. 28, which "renewed and confirmed the peace and friendship" entered into in an earlier treaty. That earlier treaty merely gave peace. Treaty of January 21, 1785, with the Wyandots, etc., Preamble, 7 Stat. 16. See, for example, "A Treaty of Peace and Friendship" with the Sacs, May 13, 1816, 7 Stat. 141, and Treaty of September 20, 1816, with the Chickasaws, Art. 1, 7 Stat. 150.

²⁸ Treaty of November 28, 1785, with the Cherokees, Arts. 1 and 2, 7 Stat. 18; Treaty of July 2, 1791, with the Cherokees, Art. 3, 7 Stat. 39.

²⁹ Treaty of October 22, 1784, with the Six Nations, Art. 1, 7 Stat. 15; Treaty of January 21, 1785, with the Wyandots and others, Art. 1, 7 Stat. 16.

³⁰ See 2 Op. A. G. 110 (1828).

³¹ Montoya v. United States, 180 U. S. 261 (1901). See Chapter 14, sec. 3.

³² 7 Stat. 28. See also Treaty of August 3, 1795, with the Wyandots, Art. 9, 7 Stat. 49; Treaty of November 28, 1785, with the Cherokees, Art. 11, 7 Stat. 18; Treaty of January 3, 1786, with the Choctaws, Art. 10, 7 8 at. 21; Treaty of January 31, 1786, with the Shawanoe Nation, Art. 4, 7 Stat. 26.

³³ 7 Stat. 118. Article 12 of the Treaty of November 10, 1808, with the Great and Little O-age Nations, 7 Stat. 107, provided:

And the chiefs and warriors as aforesaid, promise and engage that neither the Great nor Little Osage nation will ever, by sale, exchange or as presents, supply any nation or tribe of Indians, not in amity with the United States, with guns, ammunitions or other implements of war.

Also see Treaty of July 30, 1825, with the Belanstse-etao or Minnetsaree Tribe, Art. 7, 7 Stat. 261.

³⁴ Treaty of March 21, 1866, with the Seminoles, Art. 1, 14 Stat. 755.

40

INDIAN TREATIES

President;⁸⁵ or to prevent other tribes from making hostile demonstrations against the United States government or people.⁸⁶

2. *Boundaries*.⁷⁹—Nations are usually separated by frontiers. Many treaties fixed the boundaries between the United States and Indian tribes⁸⁵ and between Indian tribes.⁸⁶ Old boundaries were sometimes altered,⁹⁰ and during the removal period,⁹¹ treaties generally described the new territory granted to the Indians.⁹²

Frequently treaties prohibited the trespass⁹⁵ or settlement⁹⁴ of American citizens on Indian territory, unless licensed to trade.⁹⁵

Such provisions were supplemented by statutes.⁹⁶

3. *Passports*.—Additional evidence of the national character of the Indian tribes appears in the provisions requiring passports for citizens or inhabitants of the United States to enter the domain of an Indian tribe. The Treaty of August 7, 1790,⁹⁷ with the Creek Nation provided in part:

* * * Nor shall any such citizen or inhabitant go into the Creek country, without a passport first obtained from the Governor of some one of the United States, or the officer of the troops of the United States commanding at the nearest military post on the frontiers, or such other person as the President of the United States may, from time to time, authorize to grant the same.

Such provisions were supplemented by statutes which required citizens of the United States, as well as foreigners, to secure passports before entering the Indian country, this statutory requirement being later waived in the case of citizens.⁹⁸

4. *Extradition*.—The surrender of fugitives from justice by one nation to another is usually covered by treaty; similarly with the Indians and the United States.

Some treaties required the Indian tribes to deliver up persons committing crimes who were on their land, to be punished by the

⁸⁵ Treaty of June 16, 1802, with the Creek Nation, Art. 3, 7 Stat. 68; Treaty of November 19, 1808, with the Osages, Art. 1, 7 Stat. 107.

⁸⁶ Treaty of October 20, 1865, with the Dakotas, Art. 1, 14 Stat. 731.

⁸⁷ See Chapter 15, sec. 12, and sec. 4C of this Chapter.

⁸⁸ See Chapter 1, sec. 3, fn. 46. The primary purpose of some treaties was to establish boundaries, 5 Op. A. G. 31 (1848).

⁸⁹ Treaty of August 19, 1825, with the Sioux and others, 7 Stat. 272. Article 1 provided for peace between Sioux and Chippewas, Sioux and Foxes and the Ioways.

⁹⁰ Treaty of July 2, 1791, with the Cherokees, Art. 4, 7 Stat. 39; Treaty of October 17, 1802, with the Choctaws, Art. 3, 7 Stat. 73.

⁹¹ See sec. 4E, infra. Also see Treaty of December 29, 1835, with the Cherokees, Art. 16, 7 Stat. 478, providing for removal in 2 years. Article 5 of the Treaty of January 19, 1832, with a band of the Wyandots, 7 Stat. 364, provides that the band may

* * * remove to Canada, or to the river Huron in Michigan, where they own a reservation of land, or to any place they may obtain a right or privilege from other Indians to go.

⁹² See sec. 4E, infra; and see Chapter 15, sec. 5.

⁹³ Article 3 of the Treaty of May 24, 1834, with the Chickasaws, 7 Stat. 450, provides that

* * * the agent of the United States, upon the application of the chiefs of the nation, will resort to every legal civil remedy, (at the expense of the United States,) to prevent intrusions upon the ceded country;

Article 7 of the Treaty of March 6, 1861, with the Sioux and others, 12 Stat. 1171, provided that no nonmember of a tribe, except Government employees or persons connected with Government services, shall go on the reservation except with the permission of the agent or the Superintendent of Indian Affairs.

⁹⁴ Treaty of January 21, 1785, with the Wандots and others, Art. 5, 7 Stat. 16; Treaty of July 2, 1791, with the Cherokee Nation, Art. 8, 7 Stat. 39. Also see sec. 4C infra.

⁹⁵ See Chapter 16.

⁹⁶ Act of May 19, 1796, 1 Stat. 469; also see Act of March 3, 1799, sec. 2, 1 Stat. 743 and Act of March 30, 1802, sec. 2, 2 Stat. 139. See fn. 47, Chapter 1.

⁹⁷ Art. 7, 7 Stat. 35, 37. See also Treaty of July 2, 1791, with the Cherokees, Art. 9, 7 Stat. 39.

⁹⁸ See Chapter 4, sec. 6.

United States.⁹⁰ A few treaties provided for the extradition of such persons for punishment by the states,¹⁰⁰ or by the "states or territory of the United States northwest of the Ohio."¹⁰¹ A few early treaties provided for the punishment of United States citizens in the presence of the Indians.¹⁰² A particularly broad provision in regard to extradition was contained in the Treaty of June 19, 1858, with the Sioux,¹⁰³ which requires the extradition of violators of treaties, laws, and regulations of the United States, or of the laws of the State of Minnesota. Other treaties provided that the Indians shall prevent fugitive slaves from taking shelter among them and shall deliver such fugitives to the Indian agent.¹⁰⁴

5. *Relations with third powers*.—During the first few decades of the Republic, the political relations of many of the Indian tribes were not confined to the United States. As late as 1835,¹⁰⁵ the "friendly relations" existing between some Indian tribes and the Republic of Mexico,¹⁰⁶ the Republic of Texas,¹⁰⁷ and among the several Indian tribes were formally recognized by the United States.¹⁰⁹

## B. DEPENDENCE OF TRIBES ON THE UNITED STATES

While the national character of Indian tribes has been frequently recognized in treaties¹¹⁰ and statutes,¹¹¹ numerous treaty provisions establish their status as dependent nations.¹¹²

⁹⁰ Article 9 of the Treaty of January 21, 1785, with the Wandots and others, 7 Stat. 16, provides:

> If any Indian or Indians shall commit a robbery or murder on any citizen of the United States, the tribe to which such offenders may belong shall be bound to deliver them up at the nearest post, to be punished according to the ordinances of the United States.

⁹¹ See Treaty of September 27, 1830, with the Choctaws, Art. 8, 7 Stat. 333.

⁹² Treaty of July 2, 1791, with the Cherokee Nation, Art. 11, 7 Stat. 39.

⁹³ Treaty of January 9, 1789, with the Wandots and others, Art. 6, 7 Stat. 28.

⁹⁴ Treaty of November 28, 1785, with the Cherokees, Art. 7, 7 Stat. 18; Treaty of January 3, 1786, with the Choctaw Nation, Art. 6, 7 Stat. 21. Article 7 of the Treaty of May 15, 1846, with the Comanches and other tribes, 9 Stat. 844, provided that Indians guilty of insurrection shall be delivered up to the United States.

⁹⁵ Art. 6, 12 Stat. 1037. Also see Treaty of March 12, 1858, with the Poncas, Art. 7, 12 Stat. 997. For an example of a provision providing for extradition between tribes see Treaty of August 7, 1856, with the Creeks and Seminoles, Art. 14, 11 Stat. 699.

⁹⁶ Treaty of September 18, 1823, with the Floridas, Art. 7, 7 Stat. 224.

⁹⁷ Treaty of August 24, 1835, with the Comanche and others, 7 Stat. 474.

⁹⁸ *Ibid.*, Art. 9.

⁹⁹ Treaty of May 26, 1837, with the Kioway and others, 7 Stat. 533.

¹⁰⁰ *Op cit.*, fn. 105, Art. 1. Indian tribes also made treaties with the states and with the Confederacy. The Federal Government sometimes superised state dealings with Indians. While states entered into treaties with Indians prior to the ratification of the Constitution (W. A. Duerr, Course of Lectures on the Constitutional Jurisprudence of the United States, 2d ed. (1856), p. 281), the Constitution forbids a state from entering "into any treaty, alliance, or federation * * *" (Art. 1, sec. 8. See *Coffee v. Groover*, 123 U. S. 1, 13-14 (1887).) Many states

like New York entered into numerous treaties with Indian tribes subsequent to the Constitution with the consent of the United States. The Supreme Court in *Worcester v. Georgia*, 31 U. S. 515, 579, said: "Under the constitution no state can enter into any treaty; and it is believed, that, since its adoption, no State, under its own authority, has held a treaty with the Indians." *Accord: Coffee v. Groover*, 123 U. S. 1, 13 (1887). See Chapter 8, sec. 11. On the view of the South that each state succeeded to the property rights of Great Britain and could treat with the Indians as it pleased, see *United States v. Swain County, N. C.*, 46 F. 2d 99 (D. C. W. D. N. C. 1930), rev'd sub nom. *United States v. Wright, et al.*, 53 F. 2d 200 (C. C. A. 8, 1931), cert. den. 285 U. S. 539.

¹⁰¹ Treaty of January 21, 1785, with the Wandots and others, Art. 2, 7 Stat. 16; Treaty of November 28, 1785, with the Cherokees, Art. 3, 7 Stat. 18; Treaty of January 3, 1786, with the Choctaw Nation, Art. 2, 7 Stat. 21.

¹⁰² See Chapter 14, sec. 3.

¹¹³ The relationship of the United States to the Indians has been likened to suzerainty, Wilson and Tucker, International Law (1935), p. 63.

THE SCOPE OF TREATIES

41

1. Protection.—For example, article 2 of the Treaty of August 13, 1803, with the Kaskaskias¹¹² provides that—

The United States will take the Kaskaskia tribe under their immediate care and patronage, and will afford them a protection as effectual against the other Indian tribes and against all other persons whatever as is enjoyed by their own citizens. And the said Kaskaskia tribe do hereby engage to refrain from making war or giving any insult or offence to any other Indian tribe or to any foreign nation, without having first obtained the approbation and consent of the United States. (P. 78.)

Similar provisions are contained in other treaties.¹¹³

In construing a similar provision, the Supreme Court said:¹¹⁴

* * * By this treaty [Treaty of Hopewell] the Cherokees were recognized as one people, composing one tribe or nation, but subject, however, to the jurisdiction and authority of the Government of the United States, which could regulate their trade and manage all their affairs. (P. 295.)

Treaties with many of the other tribes left no doubt of the protectorate of the United States over them.¹¹⁵

In many respects this relationship is similar to that established in a great variety of cases between great powers and small, weak or backward states. Thus the limitations upon Indian law making and enforcement which appear in some treaties, may be likened to the limitations imposed upon the jurisdiction of certain oriental states, such as China, over the nationals of western countries residing within their territories.¹¹⁶

The practical inequality of the parties must be borne in mind in reading Indian treaties. It explains the presence of many clauses and the frequency with which similar or identical provisions appear in many Indian treaties during certain periods.¹¹⁷

2. Exclusivetrade relations.¹¹⁸—The political dependence of the Indian tribes upon the Federal Government implied, and was implied by, their economic dependence. This economic dependence found expression in agreements by the tribes not to sell real or personal property or otherwise have commercial dealings with other sovereignies than the Federal Government or with their

¹¹² 7 Stat. 78.

¹¹³ The Treaty of August 7, 1790, with the Creek Nation, Art. 2, 7 Stat. 35, provides that:

> The undersigned Kings, Chiefs, and Warriors, for themselves and all parts of the Creek Nation within the limits of the United States, do acknowledge themselves, and the said parts of the Creek Nation, to be under the protection of the United States of America, and of no other sovereign whosoever; and they also stipulate that the said Creek Nation will not hold any treaty with an Individual State, or with individuals of any State. (P. 35.)

The Treaty of November 17, 1807, with the Ottoways and others, Art. 7, 7 Stat. 105, provides that:

The said nations of Indians acknowledge themselves to be under the protection of the United States, and no other power, and will prove by their conduct that they are worthy of so great a blessing. Compare the following excerpt from the first section of a law passed by the Georgia legislature on October 31, 1787, quoted in 2 Op. A. G. 110, 124 (1828):

* * * That from and immediately after the passing of this act, the Creek Indians shall be considered as out of the protection of this State; and it shall be lawful for the government and people of the same to put to death or capture the said Indians, wherever they may be found within the limits of the State * * *. (Pp. 124-125.)

¹¹⁴ Eastern Band of Cherokee Indians v. United States, 117 U. S. 288 (1886).

¹¹⁵ For example, Treaty of December 30, 1849, with the Utah Indians, Arts. 1 and 4, 9 Stat. 984.

¹¹⁶ E. D. Dickinson, The Equality of States in International Law (1920), p. 224.

¹¹⁷ For example, Treaty of September 26, 1825, with the Ottoes and Missourias, 7 Stat. 277, and the Treaty of September 30, 1825, with the Pawnees, 7 Stat. 279; Treaty of October 28, 1867, with the Cheyenne-Arapahoe Tribes, Art. 11, 15 Stat. 593, and Treaty of April 29, et. seq., 1868, with the Sioux, Art. 11, 15 Stat. 635. Also see Chapter 8, sec. 11.

¹¹⁸ Cf. Chapter 16.

citizens or even with citizens of the United States not authorized by the Federal Government to engage in such transactions.

In some cases, these undertakings were explicit, as in Article 10 of the Treaty of November 10, 1868,¹¹⁹ whereby the Osages disclaimed all right to

* * * cede, sell or in any manner transfer their lands to any foreign power, or to citizens of the United States or inhabitants of Louisiana, unless duly authorized by the President of the United States to make the said purchase or accept the said cession on behalf of the government.

In other cases, the exclusiveness of economic relations with the Federal Government was implicit in agreements that the United States "shall have the sole and exclusive right of regulating the trade with the Indians."¹²⁰

Occasionally a tribe was given power to regulate trade and intercourse, "so far as may be compatible with the constitution of the United States and the laws made in pursuance thereof regulating trade and intercourse with the Indians,"¹²¹ or was empowered to veto the granting of a trading license to trade within certain areas.¹²²

Some treaties provided for the appointment of an agent to trade with the Indians,¹²³ and established trading posts¹²⁴ or designated places for trade.¹²⁵ Occasionally Indians were prohibited from trading outside the limits of the United States,¹²⁶ or were required to apprehend foreigners or other unauthorized persons coming "into their district of country, for the purposes of trade or other views," and to deliver them to federal officials.¹²⁷

¹²⁰ 7 Stat. 107, 109. Also see Treaty of January 9, 1789, with the Wlandots and others, Art. 3, 7 Stat. 28; Treaty of September 21, 1822, with Sacs and Foxes, Art. 8, 7 Stat. 374. Treaty of May 15, 1846, with the Comanches and others, Art. 2, 9 Stat. 844.

¹²¹ Treaty of November 28, 1785, with the Cherokees, Art. 9, 7 Stat. 18; Treaty of January 10, 1786, with the Chicksaws, Art. 8, 7 Stat. 24.

Article 1 of the Treaty of June 9, 1825, with the Poncar Tribe, 7 Stat. 247, contains another type of trade clause:

* * * The said tribe also admit the right of the United States to regulate all trade and intercourse with them.

Also see Treaty of January 3, 1786, with the Choctaw Nation, Arts. 8, 9, 7 Stat. 21.

Sometimes this power was granted for mutual considerations. Treaty of July 6, 1825, with the Chayenne Tribe, Art. 4, 7 Stat. 255; Treaty of July 30, 1825, with the Belentse-etoa or Minnetsaree Tribe, Art. 5, 7 Stat. 261.

The Treaty of December 30, 1849, Arts. 1 and 4, 9 Stat. 984, provided for the submission of the Utah Indians to the power and authority of the United States and extended to these Indians the trade and intercourse laws already applicable to other tribes. Also see Treaty of September 9, 1849, with the Navajos, Art. 3, 9 Stat. 974. Some of the treaties did not contain such sweeping provisions, but merely provided that "the United States agree to admit and licence traders to hold intercourse with said tribe [the signatory tribe], under mild and equitable regulations." Treaty of June 9, 1825, with the Poncar Tribe, Art. 4, 7 Stat. 247. For similar provisions see Treaty of June 22, 1825, with the Teton, Yoncton, and Yanctonies bands of Sioux, Art. 4, 7 Stat. 250; and Treaty of July 5, 1825, with the Sioune and Ogallala Tribes of Sioux, Art. 4, 7 Stat. 252.

¹²² Treaty of August 7, 1856, with the Creeks and Seminoles, Art. 15, 11 Stat. 699. But cf. 1 Op. A. G. 645 (1824).

¹²³ Treaty of July 19, 1866, with the Cherokees, Art. 8, 14 Stat. 799.

¹²⁴ E. g., Treaty of September 17, 1778, with the Delawares, Art. 5, 7 Stat. 13.

¹²⁵ Treaty of January 9, 1789, with the Wlandots and others, Arts. 10, 11, and 12, 7 Stat. 28; Treaty of June 29, 1796, with the Creeks, Art. 3, 7 Stat. 56. See Chapter 17. •

¹²⁶ Treaty of July 5, 1825, with the Sioune and Ogallala Tribes, Art. 3, 7 Stat. 252; Treaty of July 6, 1825, with the Chayenne Tribe, Art. 4, 7 Stat. 255; Treaty of January 9, 1789, with the Wlandots and others, Art. 7, 7 Stat. 28; Treaty of August 3, 1795, with the Wlandots and others, Art. 8, 7 Stat. 49.

¹²⁷ Treaty of December 26, 1854, with the Nisquallys and others, Art 12, 10 Stat. 1132.

¹²⁸ Treaty of September 26, 1825, with the Ottoe and Missouri Tribe, Art. 4, 7 Stat. 277; Treaty of September 30, 1825, with the Pawnees, Art. 4, 7 Stat. 279.

267785—41—5

42

INDIAN TREATIES

### 3. Representation in Congress.
Further light on the relations between the tribes and the Federal Government may be found in treaties which provided for the sending of Indian delegates to Congress.¹²⁰ This practice was explained in the report of the House Committee on Indian Affairs on the Trade and Intercourse Act of 1834.¹²⁰

The proposition for allowing Indians a delegate is not now for the first time brought forward.

It was first suggested in 1778, and in the first treaty ever formed by the United States with any Indian tribe. The treaty with the Delawares of the 17th September, 1778, contains the following article: "And it is further agreed on, by the contracting parties, (should it, for the future, be found conducive for the interests of both parties,) to invite any other tribes who have been friends to the interests of the United States, to join the present confederation, and to form a State, whereof the Delaware nation shall be the head, and have a representative in Congress: Provided. Nothing contained in this article is to be considered as conclusive until it meets with the approbation of Congress."

In the treaty of Hopewell, of 1785, is the following article: "Article 12. That the Indians may have full confidence in the justice of the United States, respecting their interests, they shall have the right to send a deputy of their choice, whenever they think fit, to Congress."

In the treaty with the Chocowts, of September, 1830, they requested the privilege of having a delegate in the House of Representatives; and the treaty states that "the commissioners do not feel that they can, under a treaty stipulation, accede to the request, but at their desire present it in the treaty, that Congress may consider of and decide the application."

The proposition is now presented to Congress, with the decided opinion of the committee that it ought to receive a favorable consideration. (Pp. 21-22.)

This recommendation was never effectuated.

### 4. Congressional power.
The extent to which Indian treaties conferred or confirmed congressional power to legislate over Indian affairs is the subject of a separate inquiry.¹²² For the present it is sufficient to note that federal statutes have been extended over Indian country by the mere force of a treaty,¹²³ and that treaties sometimes provided for the creation of United States courts in the Indian country.¹²² Thus, for example, Article 2 of the Treaty of October 4, 1842,¹²³ with the Chippewa Indians provides in part:

> The Indians stipulate * * * that the laws of the United States shall be confined in force, in respect to their trade and intercourse with the whites, until otherwise ordered by Congress.

Article 7 of the Treaty of October 2, 1863,¹²⁴ with the Chippewa Indians reads:

> * * * The laws of the United States now in force, or that may hereafter be enacted, prohibiting the introduction and sale of spirituous liquors in the Indian country, shall be in full force and effect throughout the country, hereby ceded, until otherwise directed by congress or the President of the United States.

The Treaty of February 27, 1855,¹²⁵ with the Winnebago Indians provided:

> The laws which have been or may be enacted by Congress, regulating trade and intercourse with the Indian tribes, shall continue and be in force within the country herein provided to be selected as the future permanent home of the Winnebago Indians, and those portions of

> said laws which prohibit the introduction, manufacture, use of, and traffic in, ardent spirits, in the Indian country, shall continue and be in force within the country herein ceded to the United States, until otherwise provided by Congress.

### 5. Administrative power.
The President was frequently granted considerable power by treaties. He was authorized to establish trading posts;¹²⁶ military posts or garrisons on Indian lands;¹²⁷ to designate places for trade;¹²⁸ to appoint agents;¹²⁹ to arbitrate claims of whites against Indians and Indians against whites;¹³⁰ to arbitrate territorial¹³¹ and other difficulties between tribes;¹³² to prescribe the time of the removal and settlement of Indians;¹³³ to determine whether grants of land to certain Indians shall be conveyed;¹³⁴ to dispose of certain reserved lands as he sees fit;¹³⁵ to give reservations to the headmen of a tribe,¹³⁶ or cattle,¹³⁷ or agricultural aid;¹³⁸ to extend to an Indian tribe "from time to time, such benefits and acts of kindness as may be convenient, and seem just and proper" to him;¹³⁹ to decrease the amount of annuities in proportion to any annual decrease of the Poncas, and stop the payment of annuities in the event that satisfactory efforts to advance and improve their condition were not made;¹⁴⁰ to approve attorneys chosen by the chiefs and headmen;¹⁴¹ to invest tribal money in stocks;¹⁴² to make payments to the relations and friends of Indians;¹⁴³ and to receive complaints of injuries done by individuals to the Indians and use such prudent means "as shall be necessary to preserve the said peace and friendship" with an Indian tribe.¹⁴⁴

Article 7 of the Treaty of September 30, 1809,¹⁴⁵ with the Delawares and others provided in part:

> * * * when any theft or other depredation shall be committed by any individual or individuals of one of the tribes above mentioned, upon the property of any individual or individuals of another tribe, the chiefs of the party injured shall make application to the agent of the

¹²⁶ Treaty of June 29, 1796, with the Creek Nation, Art. 3(a), 7 Stat. 56.

¹²⁷ Treaty of June 16, 1802, with the Creek Nation, Art. 3, 7 Stat. 68. Other federal offi-ina's like the Secretary of the Interior and the Commissioner of Indian Affairs were also granted power by treaty.

¹²⁸ Treaty of July 5, 1825, with the Sioune and Ogallala Tribes, Art. 4, 7 Stat. 252; Treaty of July 6, 1825, with the Chayenne Tribe, Art. 3, 7 Stat. 255.

¹²⁹ Treaty of October 20, 1832, with the Chicksaw Nation, Art. 9, 7 Stat. 381.

¹³⁰ Treaty of January 8, 1821, with the Creek Nation, 7 Stat. 217.

¹³¹ Treaty of August 11, 1827, with the Chippewa and others, Art. 2, 7 Stat. 703.

¹³² Treaty of September 21, 1833, with the Otoes and Missourias, Art. 8, 7 Stat. 429.

¹³³ Treaty of February 8, 1831, with the Menomonies, Art. 1, 7 Stat. 342.

¹³⁴ Treaty of September 17, 1818, with the Wyandots and others, Art. 3, 7 Stat. 178; Treaty of October 2, 1818, with the Potawatamie Nation, Art. 4, 7 Stat. 185.

¹³⁵ Treaty of June 2, 1825, with the Osages, Art. 10, 7 Stat. 240.

¹³⁶ Treaty of October 1, 1863, with the Western Band of Shoshonees, Art. 6, 18 Stat. 689.

¹³⁷ *Ibid.*, Art. 7.

¹³⁸ Treaty of September 24, 1819, with the Chippewa Nation, Art. 8, 7 Stat. 203.

¹³⁹ Treaty of June 6, 1825, with the Chayenne Tribe, Art. 2, 7 Stat. 255.

¹⁴⁰ Treaty of March 12, 1858, with the Poncas, Art. 2, 12 Stat. 997; also see Treaty of February 18, 1861, with the Arapahoe and Cheyenne Indians, Art. 4, 12 Stat. 1163.

¹⁴¹ Treaty of November 5, 1857, with the Tonawanda Band of Senecas, Art. 5, 12 Stat. 991.

¹⁴² *Ibid.*, Art. 6. Also see Treaty of October 1, 1859, with the Sács and Foxes of the Mississippí, Art. 11, 15 Stat. 467, giving the Secretary power over tribal money.

¹⁴³ Treaty of November 1, 1837, with the Winnebago Nation, Art. 4, 7 Stat. 544, interpreted in 3 Op. A. G. 471 (1839).

¹⁴⁴ Treaty of August 3, 1795, with the Wyandots and others, Art. 9, 7 Stat. 49.

¹⁴⁵ 7 Stat. 113.

¹²⁸ See sec. 4B, infra.

¹²⁹ H. Rept. No. 474, Comm. on Ind. Aff., 23 Cong., 1st sess., May 20, 1834.

¹³⁰ See Chapter 5, sec. 2.

¹³¹ Ex parte Crow Dog, 109 U. S. 566, 567 (1883).

¹³² Treaty of July 19, 1866, with the Cherokees, Art. 7, 14 Stat. 799.

¹³³ 7 Stat. 591.

¹³⁴ 13 Stat. 667. See Chapter 17, sec. 1, fn. 12.

¹³⁵ Art. 8, 10 Stat. 1172.

7

THE SCOPE OF TREATIES

43

United States, who is charged with the delivery of the annuities of the tribe to which the offending party belongs, whose duty it shall be to hear the proofs and allegations on either side, and determine between them: and the amount of his award shall be immediately deducted from the annuity of the tribe to which the offending party belongs, and given to the person injured, or to the chief of his village for his use.

Treaties provided for the withholding, for a year or for such time as an administrator should determine, of annuities of an Indian drinking intoxicating liquors or providing others with liquor in violation of treaty provisions.²⁵⁶ Administrative determinations were also authorized for reducing annuities in cases of depredations²⁵⁷ and horse stealing.²⁵⁸

6. **Termination of treaty-making.**—The last stage of dependence is reached when a treaty-making power abandons the right to make further treaties. Such a provision is found in the Treaty of February 18, 1861²⁵⁹ with the Arapahoe and Cheyenne Indians:

* * * And, in order to render unnecessary any further treaty engagements or arrangements hereafter with the United States, it is hereby agreed and stipulated that the President, with the assent of Congress, shall have full power to modify or change any of the provisions of former treaties with the Arapahoes and Cheyennes of the Upper Arkansas, in such manner and to whatever extent he may judge to be necessary and expedient for their best interests.

A similar result is achieved by treaties in which a tribe makes provision for the termination of its tribal existence.²⁶⁰

²⁵⁶ Treaty of March 12, 1858, with the Ponas, 12 Stat. 997; Treaty of June 19, 1858, with the Sioux, Art. 7, 12 Stat. 1037. The use of congressional power in conjunction with the treaty-making power to impose prohibitions against the liquor traffic by treaties with the Indians is discussed in Chapter 18, sec. 2. Treaty provisions regarding the enforcement of liquor prohibition laws were common.

Article 12 of the Treaty of October 18, 1820, with the Choctaw Nation, 7 Stat. 210, provided:

> In order to promote industry and sobriety amongst all classes of the Red people, in this nation, but particularly the poor, it is further provided by the parties, that the agent appointed to reside here, shall be, and he is hereby, yested with full power to seize and confiscate all the whiskey which may be introduced into said nation, except that used at public stands, or brought in by the permit of the agent, or the principal Chiefs of the three Districts.

The Indians were sometimes required to aid in the enforcement of these laws. Thus provisions were sometimes made whereby the Indians promised to tell the agent of violations of liquor prohibitions. (Treaty of May 15, 1846, with the Comanche and other tribes, Art. 12, 9 Stat. 844.)

In some of the treaties the Indians promised "to use their best efforts to prevent the introduction and use of ardent spirits in their country." (Treaty of May 18, 1854, with the Sacs and Foxes, Art. 10, 10 Stat. 1074.) The Treaty of February 11, 1856, with the Menomonee Tribe, Art. 3(2), 11 Stat. 679, provided "That the Menomonees will suppress the use of ardent spirits among their people, and resist, by all prudent means, its introduction in their settlements."

The Treaty of February 22, 1855, with the Chippewas, Art. 9, 10 Stat. 1165 provides:

* * * that they will abstain from the use of intoxicating drinks and other vices to which they have been addicted.

²⁵⁷ Treaty of September 30, 1809, with the Delawares and others, Art. 7, 7 Stat. 113.

²⁵⁸ Treaty of June 26, 1794, with the Cherokee Nation, Art. 4, 7 Stat. 43, Article 7 of the Treaty of January 22, 1855, with the Willamette Indians, 10 Stat. 1143, provided that:

* * * any one of them who shall drink liquor, or procure it for other Indians to drink, may have his or her proportion of the annuities withheld from him or her for such time as the President may determine.

²⁶⁰ Also see Treaty of December 26, 1854, with the Nisquallys, Art. 9, 10 Stat. 1132.

²⁶¹ Art. 7, 12 Stat. 1163.

²⁶² See Chapter 14, secs. 1-2.

## C. COMMERCIAL RELATIONS

Commercial dealings generally formed the substance of those treaties which were not specifically treaties of peace.

1. **Cessions of land.**—That which the Indians had which the United States most desired was, until very recently, land. The process of treaty-making was the first method of acquiring lands for, as well as from, the Indians.²⁶¹ The United States and the Indians sometimes exchanged land,²⁶² and land was sometimes ceded to the states.²⁶³

The right to pass through the Indian territory in certain places was sometimes reserved by the United States,²⁶⁴ as were rights to build roads and establish inns and ferries,²⁶⁵ or to permit telegraph lines or railroads²⁶⁶ or a named railroad to have a right-of-way (provided just compensation is paid),²⁶⁷ and options to purchase rights-of-way.²⁶⁸

Considerable power was often given to the Federal Government by provisions relating to land. The Treaty of August 5, 1826,²⁶⁹ granted to the United States the right to search for minerals.

Many treaties empowered the United States to allot land to Indians,²⁷⁰ which, in a few cases was made "exempt from taxa-

²⁶⁰ See Chapter 15, sec. 5; Westwood, Legal Aspects of Land Acquisition, p. 2, Indians and the Land, Contribution by the Delegation of the United States, First Inter-American Conference on Indian Life, Patzcuaro, Mexico, published by Office of Indian Affairs, April 1910.

For an example of cession by the United States to Indians see Treaty of September 15, 1832, with the Winnebagoes, Art. 2, 7 Stat. 370. For an example of a reservation for a tribe of land from a cession see Treaty of September 21, 1832, with the Sacs and Fox, Art. 2, 7 Stat. 374. Land was reserved to the Indians, including the right to lease salt lands. The salt was not to be sold at a higher price than $7 per bushel of 50 pounds weight; otherwise the lease would be forfeited. Treaty of October 19, 1818, with the Chickasaws, Art. 4, 7 Stat. 192. It is well settled that good title to lands of an Indian tribe may be granted to Indians by a treaty between the United States and the tribe, without an act of Congress or any patent from the executive authority of the United States. Tribal land can be disposed of by treaty. 9 Op. A. G. 24 (1857).

Examples of treaty provisions on land cessions by the Indians to the United States will be found in the Treaty of August 27, 1804, with the Plankeshaws, Art. 1, 7 Stat. 83; Treaty of September 30, 1809, with the Delawares and others, Art. 1, 7 Stat. 113; Treaty of July 8, 1817, with the Cherokees, Art. 10, 7 Stat. 156.

²⁶¹ Treaty of June 30, 1802, with the Senecas, 7 Stat. 70; Treaty of July 8, 1817, with the Cherokees, Arts. 1 and 2, 7 Stat. 156; Treaty of February 12, 1825, with the Creek Nation, Art. 2, 7 Stat. 237.

²⁶² Treaty of May 31, 1796, with the Seven Nations of Canada, 7 Stat. 55.

²⁶³ Treaty of August 3, 1795, with the Wyandots and others, Art. 3, 7 Stat. 49. On provisions regarding free navigation for all through navigable streams, see Treaty of July 8, 1817, with the Cherokees, Art. 9, 7 Stat. 156.

²⁶⁴ Treaty of September 29, 1817, with the Wyandots and others, Art. 14, 7 Stat. 160. Also see Treaty of November 11, 1794, with the Six Nations, Art. 5, 7 Stat. 44; Treaty of August 16, 1825, with the Kansas, Arts. 1, 2, and 3, 7 Stat. 270. Art. 5 provided for compensation for this privilege. Treaty of August 7, 1856, with the Crecks and Seminoles, Art. 19, 11 Stat. 699.

²⁶⁵ Treaty of July 4, 1866, with the Delawares, Art. 13, 14 Stat. 793. Also see Treaty of June 22, 1855, with the Choctaws and Chickasaws, Art. 18, 11 Stat. 611.

²⁶⁶ Treaty of January 22, 1855, with the Willamettes, Art. 8, 10 Stat. 1143.

²⁶⁷ Treaty of November 15, 1861, with the Pottawatomies, Art. 5, 12 Stat. 1191. Also see Treaty of May 30, 1860, with the Delawares, Art. 3, 12 Stat. 1129.

²⁶⁸ With the Chippewas, Art. 3, 7 Stat. 290.

²⁶⁹ Treaty of July 8, 1817, with the Cherokees, Art. 8, 7 Stat. 156; Treaty of February 27, 1855, with the Winnebagoes, Art. 4, 10 Stat. 1172; Treaty of January 31, 1855, with the Wyandots, Arts. 3 and 4, 10 Stat. 1159, construed in Hicks v. Buttrick, 12 Fed. Cas. No. 6,458 (C. C. Kan. 1875). Sometimes a differentiation was made between full-bloods and half-bloods. Treaty of June 3, 1825, with the Kansas Nation, Art. 6, 7 Stat. 244. Treaty stipulations apply to half-bloods as well as full-bloods, unless otherwise specially provided. 20 Op. A. G. 742 (1894).

["267785", "44", "INDIAN TREATIES", "tion, levy, sale, or forfeiture, until otherwise provided by Congress.171 There were also many other types of restrictive clauses such as the promise that land \"shall be exempt from levy, sale, or forfeiture, until otherwise provided by State legislation, with the assent of Congress,\"172 or the granting to the chiefs for the use of a number of tribes tracts of land which \"shall not be liable to taxes of any kind, so long as such land continues the property of the said Indians.\"173", "The extent to which Indian treaties revolved about land cession will form a principal thread of inquiry in section 4 of this chapter.", "### 2. Reserved rights in ceded land.\nBy way of softening the shock of land cession, the Indian tribes were often guaranteed special rights in ceded lands, such as the exclusive right of taking fish in streams bordering on the reservation,174 or \"the right of hunting on the ceded territory, with the other usual privileges of occupancy, until required to remove by the President of the United States,\"175 or to hunt on lands ceded to the United States,176 or to hunt in the ceded territory, \"without hindrance or molestation, so long as they demean themselves peaceably, and offer no injury to the people of the United States,\"177 or to hunt and make sugar on ceded land.178", "The nature of these rights forms a part of a later discussion of tribal property.179", "### 3. Payments and services to tribes.\nIn payment for lands ceded, and occasionally by way of compensation for other benefits or indemnification for injuries done to Indians, the Federal Government assumed extensive financial obligations to the Indian tribes. These obligations might be discharged either by lump sum or annuity payments of money or by payment in services and commodities. This is the source not only of the intricate legal problems in which tribal funds180 per capita payments.181 and individual Indian moneys182 are involved, but also of the federal services which today constitute the chief function of the Indian Service.183", "171 *Treaty of October 5, 1859, with the Kansas Indians, Art. 3, 12 Stat.*\n1111. See Chapter 13, sec. 3A.", "172 *Treaty of January 31, 1855, with the Wyandots, Art. 4, 10 Stat.*\n1159.", "173 *Treaty of September 29, 1817, with the Wyandots and others, Art. 15, 7 Stat. 160.*", "174 *Treaty of June 16, 1820, with Chippeway Tribe, Art. 3, 7 Stat. 206.*\n*Also see Treaty of June 9, 1855, with the Walla-Walla-Clayees, and Umatilla Tribes. 12 Stat. 945 discussed in Memo. Sol. I. D., June 15, 1937. Also see Chapter 15, sec. 21.*", "175 *Treaty of October 4, 1842, with the Chippewas, Art. 2, 7 Stat. 591.*", "176 *Treaty of June 16, 1870, with Chippeways Tribe, Art. 3, 7 Stat. 206.*", "177 *Treaty of August 3, 1795, with the Wyandots and others, Art. 7, 7 Stat. 49.; also see Art. 5.*", "178 *Treaty of September 29, 1817, with the Wyandots and others, Art. 11, 7 Stat. 160; Treaty of September 24, 1819, with Chippewa Nation, Art. 5, 7 Stat. 203.*", "179 *Sec. Chapter 15, sec. 21. See also Chapter 14, sec. 7.*", "180 *See Chapter 15, secs. 22, 23, 24; Chapter 9, sec. 6.*", "181 *Ibid. And see Chapter 10, secs. 4, 5.*", "182 *Ibid.*", "183 *See Chapter 12. The unpublished Treaty of April 23, 1792, with the Five Nations (Archives No. 19) provided:*", "THE UNITED STATES, in order to promote the happiness of the five nations of Indians, will cause to be expended annually the five nations of Indians, will cause to be expended annually the amount of one thousand five hundred dollars, in purchasing for them clothing, domestic animals and implements of husbandry, and for encouraging useful artificers to reside in their villages. The Treaty of September 27, 1830, with the Choptaw Nation, 7 Stat. 333, provided:", "* * * The U. S. agree also to erect a Council House for the Nation at some convenient central point, after their people shall be settled; and a House for a Chief, also a Church for each of the three Nations, and for the use of the three Nations, and for the use of the three Districts, to be used also as school houses, until the Nation may conclude to build others; and for these purposes ten thousand dollars shall be appropriated; also fifty thousand dollars (viz) twenty-five hundred dollars annually shall be given for the support of three teachers of schools for twenty years. Li: wise there shall be furnished to the Nation three Blacksmiths one for each district for sixteen years, and a qualified Mill Wright for five", "years; Also there shall be furnished the following articles, twenty-one hundred blankets, to each warrior who emigrates a rifle, moulds, wipers and ammunition, one thousand axes, ploughs, hoes, wheels and cards each; and four hundred looms. There shall also be furnished, one ton of iron and two hundred weight of steel annually to each District for sixteen years. (Art. 20.)\n*The extent to which Indian treaties revolved about land cession will form a principal thread of inquiry in section 4 of this chapter.*\n*The purpose of teaching young Men to be able to farm, and to be independent of the United States in the business and occupation of the Indiantribes in the United States. In the cultivation of their farms, and to instment their children in the business and occupation of

THE SCOPE OF TREATIES

45

smith and such agricultural assistants as the President may deem expedient:¹⁷¹ two boats;¹⁷² horses, perogues and provisions;¹⁷³ rifles, guns, ammunition, etc., in compensation for homes left by Indians who were removed;¹⁷⁴ to each warrior removing, "a blanket, kettle, rifle gun, bullet moulds and nippers, and ammunition sufficient for hunting and defence, for one year," plus corn;¹⁷⁵ 200 cattle, 200 hogs, plus 2,000 pounds of iron, 1,000 pounds of steel and 1,000 pounds of tobacco annually, and the assistance of laborers;¹⁷⁶ the payment of annuities in the form of money, merchandise, provisions, or domestic animals, at the option of the Indians;¹⁷⁷ the building of houses for chiefs;¹⁷⁸ mills and millers for a period of 3 years;¹⁷⁹ annuities and money for the repair of mill and schoolhouse;¹⁸⁰ the building of a church and an allowance for a Catholic priest.¹⁸¹

The United States agreed in treaties with most of the tribes to pay annuities in various forms: for education, blacksmiths, farmers, laborers, millers, millwrights, iron, coal, steel, salt, agricultural implements, tobacco, and transportation.¹⁸²

Many treaties contained clauses providing for additional annuities,¹⁸³ or for the commutation of annuities,¹⁸⁴ or for presents and annuities,¹⁸⁵ and goods,¹⁸⁶ rations,¹⁸⁷ and clothing.¹⁸⁸

By treaties, the United States also agreed to make payments to enable the raising of a tribal corps of light horse;¹⁸⁹ to pay a state for a balance due by a tribe;¹⁹⁰ to provide money for poor Indians;¹⁹¹ to pay demands for slaves and other property alleged

to have been stolen by the Indians;¹⁹² to pay debts or other obligations owed by the nation;¹⁹³ to pay the Indians for land ceded to a state;¹⁹⁴ for expenses incurred by the sachem and headmen in attending to tribal business for 5 years;¹⁹⁵ "to indemnify the individuals of the Cherokee nation for losses sustained by them in consequence of the march of the militia and other troops in the service of the United States through that nation * * *."¹⁹⁶

## D. JURISDICTION

1. Criminal jurisdiction.—Many treaties deal with the difficult political problems created by offenses of Indians against whites or whites against Indians.

Some of the earliest treaties adopt the rule usual in treaties between equals. Whites committing offenses within the Indian country against Indian laws are subjected to punishment by the Indian tribe, just as Indians committing offenses against state or federal laws outside the Indian country are subjected to punishment by state or federal courts.¹⁹⁷

A number of treaties adopt a modified rule, similar to that found in treaties between the United States and various Oriental nations,¹⁹⁸ whereby the United States is granted jurisdiction over its citizens in the Indian country, to punish them for offenses they may commit, and the Indian tribe undertakes to deliver such offenders to agents of the Federal Government.¹⁹⁹

Finally, a number of treaties confer upon the Federal Government authority to punish Indians who commit offenses against non-Indians even within the Indian country.²⁰⁰

Not until some time after the end of the treaty-making period did the Federal Government take the ultimate step of asserting jurisdiction over offenses committed by Indians against Indians within the Indian country.²⁰¹

2. Civil jurisdiction.—Most treaties contain no express provisions on civil jurisdiction and therefore, by implication, confirm the rule that tribal law governs the members of the tribe within the Indian country, to the exclusion of state law.²⁰²

A few treaties, however, make explicit and emphatic the assurance that state laws will not be applied to the Indians. These clauses are usually found in treaties with tribes that have had sad experiences with state jurisdiction, and the intensity of Indian feeling on the subject is sometimes reflected in the language of the treaty. Thus the purpose of the Treaty of May 6, 1828, with the Cherokee Nation²⁰³ is stated to be the securing to the Cherokees migrating westward of

* * * a permanent home, and which shall, under the most solemn guarantee of the United States, be, and remain, theirs forever—a home that shall never, in all future time, be embarrassed by having extended around it the

¹⁷¹ Treaty of September 24, 1819, with the Chippewas, Art. 8, 7 Stat. 203.

¹⁷² Treaty of July 30, 1819, with the Kickapoos, Art. 8, 7 Stat. 200.

¹⁷³ Treaty of October 3, 1818, with the Delawares, Art. 3, 7 Stat. 188.

¹⁷⁴ Treaty of July 8, 1817, with the Cherokees, Art. 6, 7 Stat. 156.

¹⁷⁵ Treaty of October 18, 1820, with the Choctaws, Art. 5, 7 Stat. 210.

¹⁷⁶ Treaty of October 23, 1826, with the Miamis, Art. 4, 7 Stat. 300.

¹⁷⁷ Treaty of June 2, 1825, with the Osages, Art. 3, 7 Stat. 240.

¹⁷⁸ Treaty of June 2, 1825, with the Osages, Art. 4, 7 Stat. 240. Also see Treaty of November 10, 1808, with the Osages, Art. 3, 7 Stat. 107.

¹⁷⁹ Treaty of December 2, 1794, with the Oneidas and others, Arts. 2 and 3, 7 Stat. 47. Cf. Treaty of January 7, 1806, with the Cherokees, Art. 2, 7 Stat. 101.

¹⁸⁰ Treaty of June 5, 1854, with the Miamis, Art. 13, 10 Stat. 1093.

¹⁸¹ Treaty of August 13, 1803, with the Kaskaskias, Art. 3, 7 Stat. 78.

¹⁸² Repts. of Committees, No. 474, 23d Cong., 1st sess., May 20, 1834, vol. IV (pp. 53-60), lists these as the most important, but contains references to other types. For examples, see Treaty of November 17, 1807, with the Ottowas and others, Art. 2, 7 Stat. 105; Treaty of August 5, 1826, with the Chippewas, Art. 6, 7 Stat. 200; Treaty of June 9, 1855, with the Walla-Wallas and others, Art. 4, 12 Stat. 945; Treaty of April 19, 1858, with the Yancton Sioux, Art. 4, 11 Stat. 743. Some treaties prohibited the use of annuities for the payment of debts of individuals. Treaty of November 18, 1854, with the Chastas and others, Art. 7, 10 Stat. 122; Treaty of November 29, 1854, with the Umpquas and others, Art. 7, 10 Stat. 1125.

¹⁸³ The Treaty of December 30, 1805, with the Plankishaws, Art. 3, 7 Stat. 100, provided for annuities and added that "the United States may, at any time they shall think proper, divide the said annuity amongst the individuals of the said tribe." Also see Treaty of August 13, 1803, with the Kaskaskias, Art. 3, 7 Stat. 78.

¹⁸⁴ Treaty of November 17, 1807, with the Ottowas and others, Art. 3, 7 Stat. 105.

¹⁸⁵ Treaty of November 11, 1794, with the S'x Nations, Art. 6, 7 Stat. 44. Also see Treaty of March 24, 1832, with the Crecks, Art. 13, 7 Stat. 366.

¹⁸⁶ Treaty of January 21, 1785, with the Wlandots and others, Art. 10 7 Stat. 16; Treaty of June 26, 1794, with the Cherokees, Art. 3, 7 Stat. 43; Treaty of December 29, 1835, with the Cherokees, Art. 18, 7 Stat. 478.

¹⁸⁷ Treaty of December 21, 1855, with the Moles, Art. 5, 12 Stat. 981.

¹⁸⁸ Treaty of May 7, 1868, with the Crows, Art. 9, 15 Stat. 649. Also see Treaty of May 10, 1868, with the Cheyennes and others, Art. 6, 15 Stat. 655. For some other types of provisions relating to annuities see Treaty of July 1, 1835, with the Caddo Nation and the State of Louisiana, Art. 4, 7 Stat. 470; Treaty of November 23, 1838, with the Crecks, Art. 6, 7 Stat. 574.

¹⁸⁹ Treaty of October 18, 1820, with the Choctaws, Art. 13, 7 Stat. 210.

¹⁹⁰ Treaty of January 8, 1821, with the Crecks, Art. 4, 7 Stat. 215.

¹⁹¹ Treaty of October 23, 1826, with the Miamis, Art. 6, 7 Stat. 300.

¹⁹² Treaty of May 9, 1832, with the Seminoles, Art. 6, 7 Stat. 368.

¹⁹³ Treaty of Nov.-mb r 10, 1808, with the Osages, Art. 4, 7 Stat. 107.

¹⁹⁴ Treaty of March 22, 1816, with the Cherokees, Art. 2, 7 Stat. 138.

¹⁹⁵ Treaty of November 24, 1848, with the Stockbridge Indians, Art. 18, 9 Stat. 955.

¹⁹⁶ Treaty of March 22, 1816, with the Cherokees, Art. 5, 7 Stat. 139.

¹⁹⁷ See Chapter 1, sec. 3, fn. 48.

¹⁹⁸ See e. g., Art. 21 of Treaty of July 3, 1844, with China, 8 Stat. 592, 596.

¹⁹⁹ See e. g., Art. 6 of Treaty of August 24, 1818, with the Quapaw Tribe, 7 Stat. 176, 177. Cf. Treaty of May 15, 1846, with the Comanches and others, Art. 12, 9 Stat. 844, providing that any person introducing intoxicating liquors among these Indians "shall be punished according to the laws of the United States."

²⁰⁰ See e. g., Art. 9 of Treaty of January 21, 1785, with the Wlandots and others, 7 Stat. 16, 17; Art. 6 of Treaty of November 28, 1785, with the Cherokee, 7 Stat. 18.

²⁰¹ See Chapter 7, sec. 9; Chapter 18.

²⁰² See Chapter 7, secs. 1, 2.

²⁰³ 7 Stat. 311. Accord: Art. 5 of Treaty of New Echota, December 29, 1855, with the Cherokee Tribe, 7 Stat. 478.

46

INDIAN TREATIES

lines, or placed over it the jurisdiction of a Territory or State, nor be pressed upon by the extension, in any way, of any of the limits of any existing Territory or State; * * *

Various other treaties contained similar pledges.²⁰⁰ Some treaties contained specific guaranties against taxation,²²¹

### E. CONTROL OF TRIBAL AFFAIRS

From 1776 to 1849 we find no treaty provision which limits the powers of self-government of any tribe with respect to the internal affairs of the tribe. All limitations upon tribal power, during this period, are in some way related to intercourse with non-Indians. Even the sporadic treaty provisions authorizing allotment of tribal land either list, as part of the treaty itself, the individuals, or define the class of individuals, who are to receive allotments,²²² or provide for the issuance of patents by the authorities of the tribe.²²³

In the wake of the War with Mexico, several treaties were imposed upon tribes of the newly acquired territory in which the long-established distinction between internal and external affairs of the tribes was abandoned and the internal affairs of the tribes were declared subject to federal control.

The language contained in the Treaty of September 9, 1849, with the Navajo,²²⁴ whereby that tribe agreed that the United States "shall, at its earliest convenience, designate, settle, and adjust their territorial boundaries, and pass and execute in their territory such laws as may be deemed conducive to the prosperity and happiness of said Indians"²²⁵ is symptomatic rather than legally important. It symbolizes a tendency to disregard the national character of the Indian tribes, a tendency that was perhaps stimulated by the loose organization and backward culture of the Southwestern nomadic tribes.

²²⁰ See, e. g., Art. 14 of the Treaty of March 24, 1832, with the Creek Tribe, 7 Stat. 366, 368; Art. 11 of the Treaty of July 20, 1831, with the Wyandots, Senecas, and Shawnees. 7 Stat. 351, 353.

²²¹ For example, Treaty of September 29, 1817, with the Wyandots and others, Art. 15, 7 Stat. 160, 166.

²²² Treaty of August 9, 1814, with Creek Nation, 7 Stat. 120; Treaty of September 29, 1817, with the Wyandot, Seneca, Delaware, and other tribes, 7 Stat. 160.

²²³ Treaty of November 6, 1838, with the Miami Tribe, 7 Stat. 569. And cf. Act of March 3, 1839, 5 Stat. 349 (Brothertown), providing for allotment by chiefs of tribe, who were to observe "the existing laws, customs, usages, or agreements of said tribe." Accord: Act of March 3, 1843, 5 Stat. 645 (Stockbridge).

²²⁴ 9 Stat. 974.

²²⁵ *Ibid.*, Art. 9. Accord: Art. 7 of Treaty of December 30, 1849, with the Utah Indians, 9 Stat. 984.

A year later, in 1850, began a series of treaties by which various tribes undertook to abandon their tribal existence.²²⁶

In 1851, a new breadth of authority was conferred upon the executive branch of the Federal Government by such clauses as the following:

Rules and regulations to protect the rights of persons and property among the Indians, parties of this Treaty, and adapted to their condition and wants, may be prescribed and enforced in such manner as the President or the Congress of the United States, from time to time, shall direct.

This provision, taken from the Treaty of July 23, 1851, with the See-see-toan (Sisseton) and Way-pay-toan (Wahpeton) Sioux,²²⁷ was copied bodily in several later treaties.²²⁸

The most important breach in the scope of tribal self-government made by treaty was made in 1854 and thereafter, by those treaties which conferred upon the President power to allot tribal lands to individual Indians.²²⁹

Along with this encroachment upon the powers of the tribes to apportion rights in tribal land among the members of the tribe, there came other extensions of federal authority over the handling and distribution of tribal funds and other incidental matters.²³⁰

The Civil War brought new occasions for the use of federal power in tribal affairs as a result of conflicts between different factions of a tribe. The Treaty of June 14, 1866, provided for "a general amnesty of all past offences against the laws of the United States, committed by any member of the Creek Nation * * *" and "an amnesty for all past offences against their government, * * *."²³¹

Thus during the last decade or so of the treaty-making period, the basis upon which treaties had been made was gradually undermined by successive specific encroachments upon the autonomy of various tribes.

²²⁶ Treaty of April 1, 1850, with the Wyandot Indians, 9 Stat. 987. And see Chapter 14, sec. 2.

²²⁷ 10 Stat. 949, 950.

²²⁸ *E. g.*, Treaty of August 5, 1851, with the Med-ay-wa-kan-toan, etc., Sioux, 10 Stat. 954.

²²⁹ See Treaty of March 15, 1854, with the Ottoe and Missouria Indians, 10 Stat. 1038, and Treaty of March 16, 1854, with the Omaha Tribe, 10 Stat. 1043, discussed in sec. 4G, infra.

²³⁰ See see 3B(5), supra.

²³¹ Art. 1, 14 Stat. 785. Also see Chapter 8, sec. 11. Also see the pre-Civil War Treaty of August 6, 1846, with the Cherokee Nation, "Treaty Party." and "Old Settlers," Art. 2, 9 Stat. 871, whereby the Cherokee Nation declared a general amnesty for all past offenses after a period of civil strife, and agreed to a bill of rights.

## SECTION 4. A HISTORY OF INDIAN TREATIES

### A. PRE-REVOLUTIONARY PRECEDENTS: 1532-1776

First mention of the necessity of a civilized nation treating with the Indian tribes to secure Indian consent to cessions of land or changes of political status²³² was made in 1532 by Francisco de Victoria,²³³ who had been invited by the Emperor of Spain to advise on the rights of Spain in the New World.

After considering in detail the argument that barbarians could not own land by reason of the sin of unbelief or other mortal sin, or by reason of "unsoundness of mind," Victoria reached the conclusion that:

* * * the aborigines in question were true owners, before the Spaniards came among them, both from the public and the private point of view.²³⁴

²³² Victoria, De Indis et De Jure Belli Relectiones (Trans. by John Pawley Bates, 1917), 1557, sec. 2, titles 6, 7.

²³³ *Ibid.*, Introduction (Nys), p. 71.

²³⁴ *Ibid.*, sec. 1, title 24, p. 128.

Since the Indians were true owners, Victoria held, discovery could convey no title upon the Spaniards, for title by discovery can be justified only where property is ownerless.²³⁵ Nor could Spanish title to Indian lands be validly based upon the divine rights of the Emperor or the Pope,²³⁶ or upon the unbelief or sinfulness of the aborigines.²³⁷ Thus, Victoria concluded, even the Pope had no right to partition the property of the Indians, and in the absence of a just war only the voluntary consent of the aborigines could justify the annexation of their territory.²³⁸ No less than their property, the government of the aborigines was entitled to respect by the Spaniards, according to the view of Victoria. So long as the Indians respected the natural rights of Spaniards, recognized by the law of nations, to travel in their

²³⁵ *Ibid.*, sec. 2, p. 139.

²³⁶ *Ibid.*, sec. 2, titles 1-6.

²³⁷ *Ibid.*, sec. 2, titles 8-16.

²³⁸ *Ibid.*

A HISTORY OF INDIAN TREATIES

47

lands and to sojourn, trade; and defend their rights therein, the Spaniards could not wage a just war against the Indians.²⁰² and therefore could not claim any rights by conquest. In that situation, however, sovereign power over the Indians might be secured through the consent of the Indians themselves.

Another possible title is by true and voluntary choice, as if the Indians, aware alike of the prudent administration and the humanity of the Spaniards, were of their own motion, both rulers and ruled, to accept the King of Spain as their sovereign. This could be done and would be a lawful title, by the law natural too, seeing that a State can appoint any one it will to be its lord, and herefor the consent of all is not necessary, but the consent of the majority suffices. For, as I have argued elsewhere, in matters touching the good of the State the decisions of the majority bind even when the rest are of a contrary mind; otherwise naught could be done for the welfare of the State, it being difficult to get all of the same way of thinking. Accordingly, if the majority of any city or province were Christians and they, in the interests of the faith and for the common weal, would have a prince who was a Christian, I think that they could elect him even against the wishes of the others and even if it meant the repudiation of other unbelieving rulers, and I assert that they could choose a prince not only for themselves, but for the whole State, just as for the Franks for the good of their State changed their sovereigns and, deposing Childeric, put Pepin, the father of Charlemagne, in his place, a change which was approved by Pope Zacharias. This, then, can be put forward as a sixth title.²⁰³

The Emperors of Spain and their subordinate administrators, like many able administrators since, did not consistently carry out Fra Victoria's legal advice. They did, however, adopt many laws and issue many charters recognizing and guaranteeing the rights of Indian communities,²⁰⁴ and the theory of Indian title put forward by Victoria came to be generally accepted by writers on international law of the sixteenth, seventeenth, and eighteenth centuries who were cited as authorities in early federal litigation on Indian property rights.²⁰⁵

The idea that land should be acquired from Indians by treaty involved three assumptions: (1) That both parties to the treaty are sovereign powers; (2) that the Indian tribe has a transferable title, of some sort, to the land in question; and (3) that the acquisition of Indian lands could not safely be left to individual colonists but must be controlled as a governmental monopoly. These three principles are embodied in the "New Project of Freedoms and Exemptions," drafted about 1630 for the guidance of officials of the Dutch West India Co., which declares:

> The Patroons of New Netherland, shall be bound to purchase from the Lords Sachems in New Netherland, the soil where they propose to plant their Colonies, and shall acquire such right thereto as they will agree for with the said Sachems.²⁰⁶

The Dutch viewpoint was shared by some of the early English settlers. In the spring of 1636, Roger Williams, who insisted that the right of the natives to the soil could not be abrogated by an English patent, founded the Rhode Island Plantations.²⁰⁷ This was the territory inhabited by the Narragansetts and for which Williams had treated.

²⁰² *Ibid.*, sec. 3, title 1, et seq.

²⁰³ *Ibid.*, sec. 3, title 16, p. 159.

²⁰⁴ See Chapter 28, sec. 1.

²⁰⁵ Victoria, *supra*, Introduction (Nys). See also Vattel, *Le Droit des Gens*, vol. 1, bk. 1, c. 18, sec. 209, and other authorities cited by *Boulevard for both parties in Johnson v. McIntosh*, 8 Wheat. 543 (1823). And see Chapter 15, sec. 4.

²⁰⁶ J. R. Brodhead, *Documents Relative to the Colonial History of the State of New York (Holland Documents II, No. 27)* (1855, O'Callaghan ed.), vol. 1, p. 99.

²⁰⁷ Kinney, *A Continent Lost—A Civilization Won* (1937), pp. 11–12.

From time to time other British colonies became parties to treaties with the Indians.²⁰⁸ Unauthorized treating for the purchase of Indian land by individual colonists was prohibited in Rhode Island as early as 1651.²⁰⁹ By the middle of the eighteenth century, eight other colonies had laws forbidding such purchase unless approved by the constituted authorities.²¹⁰ The effect of such laws was to eliminate conflicts of land titles that otherwise resulted from overlapping grants by individual Indians or tribes, to protect the Indians, in some measure, against fraud, and to center in the colonial governments a valuable monopoly.

With the outbreak of the French and Indian War the problem of dealing with the natives which had been left largely to the individual colonies was temporarily returned to the control of the mother country.²¹¹ Later, treaties with the Indians were again negotiated by the colonies.²¹²

On several occasions the Crown indicated its belief in the sanctity of treaty obligations.²¹³ Some of the treaties contained definite stipulations regarding land tenure.²¹⁴

## B. THE REVOLUTIONARY WAR AND THE PEACE;

1776–83

From the first days of the organization of the Continental Congress great solicitude for the natives was evidenced. The Congress pledged itself to unusual exertions in securing and preserving the friendship of the Indian nations.²¹⁵ First fruit of this effort was the treaty of alliance with the Delaware Indians of September 17, 1778.²¹⁶ Its provisions are so significant that Chief Justice Marshall's analysis in this respect should be noted:

> The first treaty was made with the Delawares, in September 1778. The language of equality in which it is drawn, evinces the temper with which the negotiation was undertaken, and the opinion which then prevailed in the United States. * * * 6. The sixth article is entitled to peculiar attention, as it contains a disclaimer of designs which were, at that time, ascribed to the United States, by their enemies, and from the imputation of which congress was then peculiarly anxious to free the government. It is in these words: "Whereas, the enemies of the United States have endeavored, by every artifice in their power, to possess the Indians in general with an opinion, that it is the design of the states aforesaid to extirpate the Indians, and take possession of their country; to obviate such false suggestion, the United States do engage to guaranty to the aforesaid nation of Delawares, and their heirs, all their terri-

²¹⁵ In Pennsylvania, in advance of settlement, William Penn sent several commissioners to confer with the Indians and conclude with them a treaty of peace (18th Annual Report, Bureau of Ethnology, 1896–97, pt. II, pp. 591–599). Also see Chapter 15, sec. 4.

²¹⁶ Kinney, *op. cit.*, p. 14. As early as 1609 English colonists in Virginia purchased land directly from the Indians in that territory. (P. 12.)

²¹⁷ *Ibid.* The colonies were Massachusetts, Virginia, New Jersey, Pennsylvania, Maryland, North Carolina, South Carolina, and Georgia.

²¹⁸ *Mohr, Federal Indian Relations* (1938), pp. 4–9.

²¹⁹ See, for example, the Treaty of Hard Labor on October 14, 1768, which defined the boundary of Virginia, and the Treaty of Fort Stanwix, Novem er 5, 1768, defining the boundary of the northern district (Mohr, *op. cit.*, pp. 9–10).

²²⁰ See, e. g., *Worcester v. Georgia*, 6 Pet. 515, 546, 548 (1832).

²²¹ In 1783 Sir John Johnson, prominent representative of the British Government, referring to the boundaries established by the treaty of peace with the United States of that year, told the Six Nations:

> You are not to believe or even think that by the line which has been described it was meant to deprive you of an extent of country of which the right of soil belongs to you and is in your- [by treaty of 1768] and established in the most solemn and public manner in the presence and with the consent of the governors and commissioners deputed by the different colonies for that pur- pote * * * (Mohr, *op. cit.*, p. 118).

²²² *Jour. Cont. Cong.* (Library of Congress ed.) 1775, vol. II, p. 174.

²²³ Treaty of September 17, 1778, 7 Stat. 13.

48

INDIAN TREATIES

torial rights, in the fullest and most ample manner, as it
hath been bounded by former treaties, as long as the said
Delaware nation shall abide by, and hold fast the chain of
friendship now entered into." The parties further agree,
that other tribes, friendly to the interest of the United
States, may be invited to form a state, whereof the Dela-
ware nation shall be the heads, and have a representation
in congress. This treaty, in its language, and in its pro-
visions, is formed, as near as may be, on the model of
treaties between the crowned heads of Europe. The sixth
article shows how congress then treated the injurious
calumny of cherishing designs unfriendly to the political
and civil rights of the Indians.⁵⁴

Articles 4 and 5 are also noteworthy. By Article 4, any of-
fenders of either party against the treaty of peace and friendship
were not to be punished, except

* * * by imprisonment, or any other competent means,
till a fair and impartial trial can be had by judges or
juries of both parties, as near as can be to the laws, cus-
toms and usages of the contracting parties and natural
justice * * *.

Article 5⁵⁵ provided for a

* * * well-regulated trade, under the conduct of an
intelligent, candid agent, with an adequate sallier, one
more influenced by the love of his country, and a constant
attention to the duties of his department by promoting the
common interest, than the sinister purposes of converting
and binding all the duties of his office to his private
emolument * * *.

C. DEFINING A NATIONAL POLICY: 1783-1800

Following the close of the Revolutionary War the United
States entered into a series of treaties with Indian tribes by
which the "hatchet" was "forever buried."⁵⁶

In the spring of 1784 Congress appointed commissioners to
negotiate with the Indians. Full power was given them to draw
boundary lines and conclude a peace, with the understanding
that they would make clear that the Indian territory was forfeit
as a result of the military victory.⁵⁷ This idea was not novel.
General Washington, on September 7, 1783, had expressed him-
self as agreeable to regarding the territory held by the Indians
as "conquered provinces," although opposed to driving them from
the country altogether.⁵⁸ The commissioners met at Fort Stan-
wix and on October 22 concluded a treaty with the hostile tribes
of the Six Nations.⁵⁹ In the opening paragraph the United
States receives the Indians "into their protection." This has

⁵⁴ Worcester v. Georgia, 6 Pet. 515, 548, 549 (1832). See also Art. 12. Treaty with the Cherokees of November 28, 1785, 7 Stat. 18, discussed below, which granted to the Cherokees the right to send a deputy of their own choice to Congress whenever they think fit. This, however, was never carried into effect. See also sec. 3B(3), *supra*.

⁵⁵ See Chapter 4, sec. 2, and Chapter 16.

⁵⁶ The phrase appears in the Treaties at Hopewell with the Cherokees, November 28, 1785, Art. 13, 7 Stat. 18; with the Choctaws, January 3, 1786, Art. 11, 7 Stat. 21; and with the Chickasaws, January 10, 1786, Art. 11, 7 Stat. 24.

This phrase was later supplanted by the phrase "all animosities for past grievances shall henceforth cease." See fn. 288, *infra*. As the disturbances caused by the Revolutionary War settled, this phrase disappeared.

⁵⁷ Mohr, op. cit., p. 108. In 1786 the Continental Congress, through its chairman, David Ramsay, again tried to make it clear, this time to the Seneca Indian, Cornplanter, that

* * * the United States alone possess the sovereign power within the limits described at the late Treaty of peace between them and the King of England. * * * You may also assure the Indians that they tell lies, who say that the King of England has not in his late Treaty with the United States given up, to them the lands of the Indians. (Jour. Cont. Cong., Library of Congress ed., 1786, vol. XXX, p. 235.)

⁵⁸ 10 Ford, Washington Writings, vol. X (1891), pp. 303-312.

⁵⁹ Treaty of October 22, 1784, 7 Stat. 15. The Treaty was construed in *New York Indians*, 5 Wall. 761 (1866) and in *Commonwealth v. Coxe*, 4 Dall. 170 (1800).

been cited as the source of the concept of the Federal Govern-
ment as the guardian of Indian tribes.⁵⁰

Article 2 provides that the "Oneida and Tuscarora Nations
shall be secured in the possession of the lands on which they are
settled."⁵¹

Article 4 orders

* * * goods to be delivered to the said Six Nations for
their use and comfort.

Thus began a practice which later developed into a compre-
hensive system of supplying promised goods and services to
Indian tribes.⁵²

Soon afterwards another treaty was agreed upon with the
Wandots, Delawares, Chippawas, and Ottawas at Fort McIntosh
on January 21, 1785.⁵³ The next year the Shawnee chiefs signed
a treaty at the mouth of the Miami.⁵⁴ These three treaties,
which are the only ones entered into with the northern tribes
before the adoption of the Constitution, are very similar in
nature. All of them recite the conclusion of hostilities and the
extension of the protective influence of the United States.⁵⁵

In the Treaty of January 21, 1785, at Fort McIntosh,⁵⁶ and the Treaty of January 31, 1786, at the Miami,⁵⁷ the boundaries between the Indian nations and the United States are defined and the lands therein are allotted to the said nations to live and hunt on, with the provision that if any citizen of the United States should attempt to settle on their territory, he would forfeit the protection of the United States.⁵⁸ In addition both treaties⁵⁹ provided for the return to the United States of Indian robbers and murderer. In the treaty with the Shawnees,⁶⁰ there is a similar provision with regard to United States offenders against the Indians.

Congress was slower in taking action regarding the southern
tribes. It was not until March 15, 1785,⁶¹ that a resolution was

⁵⁰ United States v. Douglas, 190 Fed. 482 (C. A. 8, 1911).

⁵¹ An illuminating statement regarding title claimed under the Treaty of Fort Stanwix is found in *Deere v. State of New York*, 22 F.2d851 (D. C. N. D. N. Y. 1927):

* * * The source of title here is not letters patent or other form of grant by the federal government. Here the Indians claim immemorial rights, arising prior to white occupation, and recognized and protected by treaties between Great Britain and the United States and between the United States and the Indians. By the treaty of 1784 between the United States and the Six Nations of Indians, and the treaty of 1786 between the United States, the state of New York and the Seven Nations of Canada, the right of occupation of the lands in question by the St. Regis Indians, was not granted, but recognized and confirmed. (P. 854.)

⁵² See, for a similar provision, the Treaty of Fort McIntosh with the Wandots, De'awares, etc., January 21, 1785, 7 Stat. 16.

⁵³ Treaty of January 21, 1785, 7 Stat. 16. By this treaty the United States Supreme Court states, in *Jones v. Mechan*, 175 U. S. 8. 1 (1899):

* * * the United States relinquished and quitclaimed to the said nations respectively all the lands lying within certain limits, to live and hunt upon, and otherwise occupy as they saw fit; but the said nations, or either of them, were not to be at liberty to dispose of those lands, except to the United States. * * * (P. 9.)

⁵⁴ See also *Commonwealth v. Coxe*, 4 Dall. 170 (1800).

⁵⁵ Treaty of January 31, 1786, 7 Stat. 26.

⁵⁶ The Fort McIntosh treaty in its 10th article introduces a technique of giving presents upon the signing of the instrument which is soon to become standard practice in negotiating agreements with the Indians. Also to be noticed is the reserving for the first time of land within Indian boundaries for establishment of United States trading posts which is provided in Article 4 of the same treaty.

⁵⁷ Arts. 3, 4, 5, 7 Stat. 16.

⁵⁸ Arts. 6, 7, 7 Stat. 26.

⁵⁹ For a discussion of the significance of this stipulation see *Treaty of July 2, 1791, with the Cherokees, 7 Stat. 39; and fn. 294 and 295, * infra*.

⁶⁰ Art. 9, 7 Stat. 16; Art. 3, 7 Stat. 26.

⁶¹ Art. 3, Treaty of January 31, 1786, 7 Stat. 26. The Treaties at Hopewell, *infra*, contain a similar provision with the Cherokee, November 28, 1785, Art. 7, 7 Stat. 18; the Choctaw, January 3, 1786, Art. 6, 7 Stat. 21; the Chickasaw, January 10, 1786, Art. 6, 7 Stat. 24.

⁶² Jour. Cont. Cong. (Library of Congress ed.), 1785, vol. XXVIII, pp. 160-162.

A HISTORY OF INDIAN TREATIES

49

passed for the appointment of commissioners to deal with the
Indian nations in the southern part of the country.

The federal commissioners met with the Cherokees at Hopewell
on the Keowee, and concluded a treaty on November 28, 1785,²⁷²
which declared that the United States "* * * give peace to all
the Cherokees, and receive them into the favour and protection
of the United States of America, on the following conditions."
In Worcester v. Georgia,²⁷³ Chief Justice Marshall gave the fol-
lowing answer to the argument that this language put the
Indians in an inferior status:

* * * When the United States gave peace, did they not
also receive it? Were not both parties desirons of it?
If we consult the history of the day, does it not inform
us, that the United States were at least as anxious to
obtain it as the Cherokees? We may ask further, did the
Cherokees come to the seat of the American government to
solicit peace; or, did the American commissioners go to
them to obtain it? The treaty was made at Hopewell, not
at New York. The word "give", then, has no real impor-
tance attached to it.

Marshall, at the same time, also called attention to Article 3 of
the Hopewell agreement which acknowledges the Cherokees to be
under the protection of no other power but the United States,
saying:²⁷⁴

The general law of European sovereigns, respecting their
claims in America, limited the intercourse of Indians, in a
great degree, to the particular potentate whose ultimate
right of domain was acknowledged by the others. This
was the general state of things, in time of peace. It was
sometimes changed in war. The consequence was, that
their supplies were derived chiefly from that nation, and
their trade confined to it. Goods, indispensable to their
comfort, in the shape of presents, were received from the
same hand. What was of still more importance, the
strong hand of government was interposed to restrain the
disorderly and licentious from intrusions into their coun-
try, from encroachments on their lands, and from those
acts of violence which were often attended by reciprocal
murder. The Indians perceived in this protection only
what was beneficial to themselves—an engagement to
punish aggressions on them. It involved, practically, no
claim to their lands—no dominion over their persons. It
merely bound the nation to the British crown, as a depend-
ent ally, claiming the protection of a powerful friend and
neighbor, and receiving the advantages of that protection,
without involving a surrender of their national character.
This is the true meaning of the stipulation, and is, un-
doubtedly, the sense in which it was made.

Article 9 of the Hopewell treaty with the Cherokees holds that

* * * the United States in Congress assembled shall
have the sole and exclusive right of regulating the trade
with the Indians, and managing all their affairs in such
manner as they think proper.

In Worcester v. Georgia it was argued that in this article the
Indians had surrendered control over their internal affairs. This
interpretation was vigorously rejected by the Supreme Court.

To construe the expression "managing all their affairs," into a surrender of self-government, would be, we think, a perversion of their necessary meaning, and a departure from the construction which has been uniformly put on them. The great subject of the article is the Indian trade; the influence it gave, made it desirable that congress should possess it. The commissioners brought forward the claim, with the profession that their motive was "the benefit and comfort of the Indians, and the prevention of injuries or oppressions." This may be true, as respects the regulation of their trade, and as respects the regulation of all affairs connected with their trade, but cannot be true, as respects the management of all their affairs. The most important of these are the cession of their lands and

security against intruders on them. Is it credible, that
they should have considered themselves as surrendering
to the United States the right to dictate their future
cessions, and the terms on which they should be made? or
to compel their submission to the violence of disorderly
and licentious intruders? It is equally inconceivable that
they could have supposed themselves, by a phrase thus
slipped into an article, on another and most interesting
subject, to have divested themselves of the right of self-
government on subjects not connected with trade. Such a
measure could not be "for their benefit and comfort," or for
"the prevention of injuries and oppression." Such a con-
struction would be inconsistent with the spirit of this and
of all subsequent treaties; especially of those articles
which recognise the right of the Cherokees to declare hos-
tilities, and to make war. It would convert a treaty of
peace, covertly, into an act annihilating the political exist-
ence of one of the parties. Had such a result been
intended, it would have been openly avowed.²⁷⁵

Article 12, permitting Cherokee representation in Congress, is
of particular interest, although it was never fulfilled.²⁷⁶

During the last year of the Confederation the dissatisfaction
among the Indians resulting from using the "conquered province"
concept as the basis for treaty deliberations became apparent.
The Secretary of War, therefore, on May 2, 1788,²⁷⁷ recommended
a change in policy which would permit the outright purchase of
the soil of the western territories described in former treaties
with such additions as might be affected by further negotia-
tions.²⁷⁸ Acting on this suggestion, Congress appropriated
$20,000.00 on July 2, 1788,²⁷⁹ which, together with the balance
remaining from the sum allocated on October 22, 1787,²⁸⁰ was ear-
marked for use in extinguishing Indian claims to land already
ceded.

The immediate result of this step were the treaties of Fort
Harmar with the Wiandot, Delaware, Chippewa, and Ottawa, Indians,²⁸¹ and with the Six Nations, entered into early in 1789,²⁸²
which reaffirmed many of the original terms of the Fort Stanwix
and Fort McIntosh treaties. Both of these agreements provide
for the United States relinquishing and quitclaiming certain
described territory to the Indian nations. However, article 3 of
the Fort Harmar treaty with the Wyandots, Delawares, Chip-
pewas, and Ottawas,²⁸³ added that the said nations should not be
at liberty

* * * to sell or dispose of the same, or any part thereof,
to any sovereign power, except the United States; nor to
the subjects or citizens of any other sovereign power, nor
to the subjects or citizens of the United States.

Article 7 also provided for the opening up of trade with Indians,
establishing a system of licensing with guarantees of protection
to certified traders, and a promise by the Indians to apprehend
and deliver to the United States those individuals who intrude
themselves without such authority. Article 6 makes first men-
tion of depredations, and binds both parties to a method of
handling claims arising therefrom.

Although the Fort Harmar conferences were held during the
life of the Confederation, the report of the results obtained was
received in the first months of the new government operating

²⁷² Stat. 18.

²⁷³ 6 Pet. 515, 551 (1832).

²⁷⁴ *Ibid.*, p. 551.

²⁷⁵ *Ibid.*, pp. 553-554.

²⁷⁶ See Art. 6. Treaty with the Delawares of September 17, 1778, 7 Stat. 13, and fn. 254, *supra*.

²⁷⁷ Mohr, *op. cit.*, p. 132.

²⁷⁸ *Ibid*.

²⁷⁹ *Ibid*.

²⁸⁰ *Ibid*.

²⁸¹ Treaty of January 9, 1789, 7 Stat. 28.

²⁸² Treaty of January 9, 1789 (unratified). 7 Stat. 33. See also fn. 263 *supra*, for interpretation of this treaty in Jones v. Mechan, 173 U. S. 8, 1, 9 (1809).

²⁸³ Treaty of January 9, 1789, 7 Stat. 28.

50

INDIAN TREATIES

under the Constitution, and transmitted to the Senate of the United States on May 25, 1789, for its approval.²⁸⁴

Puzzled over the proper procedure, George Washington wrote to the Senate asking what it meant by advising him to "execute and enjoin" the observance of the treaties,

It is said to be the general understanding and practice of nations, as a check on the mistakes and indiscretions of ministers or commissioners, not to consider any treaty negotiated and signed by such officers, as final and conclusive, until ratified by the sovereign or government from whom they derive their powers. This practice has been adopted by the United States respecting their treaties with European nations, and I am inclined to think it would be advisable to observe it in the conduct of our treaties with the Indians. * * *

Not unmindful of the significance of the ratification of Indian treaties, the Senate appointed a special committee to investigate the matter. After several days of debate the Senate advised formal ratification.²⁸⁵

On August 22, 1789, George Washington appeared in the Senate Chamber to point out to the assembled group the gravity of the Indian situation in the South. North Carolina and Georgia, the President said, had not only protested against the treaties of Hopewell but had disregarded them. Moreover, open hostilities existed between Georgia and the Creek Nation. All of this, the President continued, involved so many complications that he wished to raise particular issues for the "advice and consent" of the Senate. Accordingly, he put seven questions which resulted in instructions to deal with the Creek situation first and, if need be, to use the whole amount of the current appropriation for Indian treaties for this purpose.²⁸⁶

On August 7, 1790, articles of agreement were concluded between the President of the United States and the kings, chiefs, and warriors of the Creek Nation.²⁸⁷ Article 5 is a solemn guarantee to the Creeks of all their lands within certain described limits. Article 7 stipulated that—

> No citizen or inhabitant of the United States shall attempt to hunt or destroy the game on the Creek lands: Nor shall any such citizen or inhabitant go into the Creek country, without a passport first obtained from the Governor of some one of the United States. * * *

The obligation thus assumed by treaty the United States proceeded to implement in section 2 of the Indian Intercourse Act of May 19, 1796,²⁸⁸ which made it a criminal offense for strangers to hunt, trap, or drive livestock in the Indian country.

It was found necessary to attach secret articles providing for transportation of merchandise duty free into the Creek Nation

by the United States in the event of hostilities between the Creeks and Spaniards.²⁸⁹

In Article 5 of the secret treaty, the United States, for the first time,

* * * agree to educate and clothe such of the Creek youth as shall be agreed upon, not exceeding four in number at any one time.²⁹⁰

In the following year, 1791, the commissioners turned their attention to the difficulties between the Cherokees and the State of Georgia. Finally, on July 2, near the junction of the Holston River and the French Broad, the Cherokee Nation abandoned its claims to certain territories in return for $1,000 annuity.²⁹¹ The instrument signed on that occasion was well described by the court in *Worcester v. Georgia*:

> The third article contains a perfectly equal stipulation for the surrender of prisoners. The fourth article declares that "the boundary between the United States and the Cherokee nation shall be as follows, beginning," etc. We hear no more of "allotments" or of "hunting-grounds." A boundary is described, between nation and nation, by mutual consent. The national character of each—the ability of each to establish this boundary, is acknowledged by the other. To preclude forever all disputes, it is agreed, that it shall be plainly marked by commissioners, to be appointed by each party; and in order to extinguish forever all claims of the Cherokees to the ceded lands, an additional consideration is to be paid by the United States. For this additional consideration, the Cherokees release all right to the ceded land, forever. By the fifth article, the Cherokees allow the United States a road through their country, and the navigation of the Tennessee river. The acceptance of these cessions is an acknowledgment of the right of the Cherokees to make or withhold them. By the sixth article, it is agreed, on the part of the Cherokees, that the United States shall have the sole and exclusive right of regulating their trade. No claim is made to the management of all their affairs. This stipulation has already been explained. The observation may be repeated, that the stipulation is itself an admission of their right to make or refuse it. By the seventh article, the United States solemnly guaranty to the Cherokee nation all their lands not hereby ceded. The eighth article relinquishes to the Cherokees any citizens of the United States who may settle on their lands; and the ninth forbids any citizen of the United States to hunt on their lands, or to enter their country without a passport. The remaining articles are equal, and contain stipulations which could be made only with a nation admitted to be capable of governing itself.²⁹²

This treaty of July 2, 1791, also includes a provision (Article 8), noticed before, viz: that any citizen settling on Indian land * * * shall forfeit the protection of the United States, and the Cherokees may punish him or not, as they please.*²⁹³

²⁸⁴ The Debates and Proceedings in the Congress of the United States (1789-90), vol. 1, pp. 40-41. (Hereinafter referred to as Debates and Proceedings.)

²⁸⁵ *Ibid.*, p. 83.

²⁸⁶ *Ibid.*, p. 84. It is interesting to note that the committee report (P. 82) which was rejected drew a distinction between treaties with European powers and treaties with the aborigines insisting that solemnities were not necessary in the latter case.

²⁸⁷ *Ibid.*, pp. 66-71. Washington asked the Senate "* * * if all offers should fail to induce the Creeks to make the desired cessions to Georgia, shall the Commissioners make it an ultimatum." (P. 70.) The Senate answered "No." (P. 71.)

²⁸⁸ 7 Stat. 35. A recital often found in Indian treaties is the following, which appears in Art. 13: "All animosities for past grievances shall henceforth cease." (See also Treaty of July 2, 1791, Art. 15, 7 Stat. 39: Treaty of June 29, 1796, Art. 9, 7 Stat. 56.) It should be further noted that Art. 2 pledges the Creeks to refrain from treating with any individual State, or the individuals of any State. *Patterson v. Jenks*, 2 Pet. 216 (1829), construes provisions of this treaty relative to grants of land within the territorial limits of the State of Georgia.

²⁸⁹ 1 Stat. 469.

²⁹² Treaty of August 7, 1790, Archives No. 17, Debates and Proceedings, vol. 1, p. 1029 (*supra*, fn. 284).

The Creek Treaty was amended on June 29, 1796, by a treaty which among other things provided that the United States give to the Creek Nation "goods to the value of six thousand dollars, and * * * send to the Indian nation, two blacksmiths, with strikers, to be employed for the upper and lower Creeks with the necessary tools." Art. 8, Treaty of June 29, 1796, 7 Stat. 56.

²⁹³ See Art. 3, Treaty with the Kaskaskias, August 13, 1803, 7 Stat. 78, *infra*, for the first contribution by the United States for organized education in the support of a priest "* * * to instruct * * * in the rudiments of literature." See also Chapter 12, sec. 2.

²⁹⁴ Art. 4, Treaty of July 2, 1791, 7 Stat. 39. This sum was increased later to $1,500 by the Treaty at Philadelphia of February 17, 1792, 7 Stat. 42. The Holton Treaty was further amended by the Treaty of Tellico of October 2, 1798, 7 Stat. 62, construed in *Preston v. Brouder*, 1 Wheat. 115 (1816); *Lattimer v. Poteet*, 14 Pet. 4, 13 (1840).

²⁹⁵ *Worcester v. Georgia*, 6 Pet. 515, 555-556 (1824).

²⁹⁶ See fn. 268 *supra*. A similar provision appears in the Treaties of January 21, 1785, with the Wlandots, Delawares, Chippawas, and Otta-

A HISTORY OF INDIAN TREATIES

51

article, the court in *Raymond v. Raymond*²⁰⁵ cities as the basis for the lack of jurisdiction of the federal judiciary in suits between members of the Cherokee Nation, saying:

> It is not material to the present issue that this provision has been subsequently modified. It shows, as do subsequent treaties, that for more than a century this tribe of Indians had claimed and exercised, and the United States have guaranteed and secured to it, the exclusive right to regulate its local affairs, to govern and protect the persons and property of its own people, and those who join them, and property of its own people, and of those who join them, and duties. * * * (P. 722.)

Despite efforts at conciliation, dissatisfaction was spreading among the Indian tribes. Word was received that the Indians of the Northwest Territory were preparing to cooperate with the Six Nations in a major war. Washington dispatched instructions to Colonel Pickering to hold a council with the Six Nations. At the same time preparations were made to take military action on the western frontier and General Wayne, a Revolutionary War veteran, was put in charge of the troops, who on August 20, 1794, routed the natives in the battle of Fallen Timbers.

A new treaty was made with the Six Nations on November 11, 1794.²⁰⁶ In this agreement the lands belonging to the Oneidas, Onondagas, Cayugas, and Senecas were described and acknowledged by the United States as the property of the aforementioned Indian nations and in addition the United States pledged to add the sum of $3,000 to the $1,500 annuity already allowed by the Treaty of April 23, 1792,²⁰⁷ with the Five Nations.

Shortly thereafter, a treaty²⁰⁸ was concluded with the nations which had participated in the ill-fated expedition against General Wayne. This agreement provides for the cession of an immensely important area which today comprises most of the State of Ohio and a portion of Indiana. At the same time the United States stipulates (Article 5):

> The Indian tribes who have a right to those lands, are quietly to enjoy them, hunting, planting, and dwelling thereon so long as they please, without any molestation from the United States; but when those tribes, or any of them, shall be disposed to sell their lands, or any part of them, they are to be sold only to the United States; and until such sale, the United States will protect all the said Indian tribes in the quiet enjoyment of their lands against all citizens of the United States, and against all other white persons who intrude upon the same.

The exact meaning of this recital was at issue in *Williams v. City of Chicago*. After examining the instrument in detail the court held:

> * * * We think it entirely clear that this treaty did not convey a fee simple title to the Indians; that under it no tribe could claim more than the right of continued occupancy; and that when this was abandoned all legal

was, Art. 5, 7 S'at. 16; November 28, 1785, with the Cherokees, Art. 5, 7 Stat. 18; January 3, 1786, with the Choctaws, Art. 4, 7 Stat. 21; January 10, 1786, with the Chickasaws, Art. 4, 7 Stat. 24; January 31, 1786, with the Shawnees, Art. 7, 7 Stat. 26; January 9, 1789, with the Wan-dots, Delawares, Chippewas, and Ottawas, Art. 9, 7 Stat. 28; August 7, 1790, with the Creeks, Art. 6, 7 Stat. 35; August 3, 1795, with the Wyandots, Delawares, Chipewas, Ottawas, etc., Art. 6, 7 Stat. 49. See also Chapter 1, sec. 3.

²⁰⁶ *Raymond v. Raymond*, 83 Fed. 721 (C. C. A. 8, 1897).

²⁰⁷ Stat. 44. An earlier treaty had been concluded October 22, 1784, 7 Stat. 15.

²⁰⁸ *Unpublished treaty (Archives No. 19).*

²⁰⁹ *Treaty with the Wyandots, Delawares, Shawanoes, etc., August 3, 1795, at Greenville, 7 Stat. 49.* The ratification of this treaty is to be considered as the *terminus a quo* a man might safely begin a settlement on the Western frontier of Pennsylvania.” *Morris's Lessee v. Neighmon, 4 Dall. 209, 210 (1800).* For provisions under this treaty relating to disposal of land by Indians see *Patterson v. Jenks, fn. 288, supra*, Chippewa Indians were treated as a single tribe in this treaty. *Chippewa Indians of Minnesota v. United States, 301 U. S. 358 (1937).*

right or interest which both tribe and its members had in the territory came to an end. * * * *²⁰⁹ (Pp. 437-438.)

The Seven Nations of Canada on May 31, 1796,²¹⁰ released all territorial claims within the State of New York, with the exception of a tract of land 6 miles square.²¹¹

### D. EXTENDING THE NATIONAL DOMAIN: 1800-17

By 1800 the rapid growth of the nation had given impetus to the drive to add to the territory under federal ownership. This could be done effectively by extinguishing native title to desired lands. The treaty makers of this period may be said to have had a single objective—the acquisition of more land.

Success in this direction was almost immediate and by 1803 the President of the United States was able to report to Congress:

> The friendly tribe of Kaskaskia Indians * * * has transferred its country to the United States, reserving only for its members what is sufficient to maintain them in an agricultural way. * * * This country, among the most fertile within our limits, extending along the Mississippi from the mouth of the Illinois to and up the Ohio, though not so necessary as a barrier since the acquisition of the other bank, may yet be well worthy of being laid open to immediate settlement, as its inhabitants may descend with rapidity in support of the lower country, should future circumstances expose that to foreign enterprise.²¹²

Article 3 of the Kaskaskia treaty²¹³ contains the first provision for contributions by the United States for organized education,²¹⁴ for the erection of a new church,²¹⁵ and for the building of a house for the chief as a gift.²¹⁶

The Indians pledge themselves to refrain from waging war or giving any insult or offense to any other Indian tribe or to any foreign nation without first having obtained the approbation and consent of the United States (Art. 2). The United States in turn take the tribe under their immediate care and patronage, and guarantee a protection similar to that enjoyed by their own citizens. The United States also reserve the right to divide the annuity promised to the tribe "* * * amongst the several families thereof, reserving always a suitable sum for the great chief and his family." (Art. 4.)

President Jefferson selected William Henry Harrison, Governor of Indiana Territory, to represent the United States Government in its negotiations with the Indian tribes of the West.²¹⁷

After protracted negotiations at Fort Wayne with the Delawares, Shawnees, and other tribes of the Northwest Territory, a substantial cession of territory was secured by the Treaty of June 7, 1803.²¹⁸

An interesting provision is found in Article 3, whereby the United States guaranteed to deliver to the Indians annually salt

²¹² 212 U. S. 434 (1917).

²¹³ *Treaty of May 31, 1796, 7 Stat. 55.* "The 7 tribes signified are the Skizhouan (Nipissing), Estjage (Saulteurs), Assisagh (Mississauga), Karhadage, Adzenauwe, Karrihaet, and Adirondax (Algonkins). The 4th, 5th, and 6th are unidentified." Bul. No. 30, Bureau of American Ethnology, Handbook of American Indians, pt. 2, p. 515.

²¹⁴ This tract was reserved for the Indians of St. Regis village, and is now the St. Regis Reservation. See Chapter 22, sec. 2C.

²¹⁵ Message of October 17, 1803, in Debates and Proceedings (1803-4), vol. 13, pp. 12-13.

²¹⁶ *Treaty of August 13, 1803, 7 Stat. 78.*

²¹⁷ See *Unpublished Treaty of August 7, 1790* (Archives No. 17), fn. 290 *supra*, and Chapter 12, sec. 2.

²¹⁸ In 1794 the United States agreed to contribute $1,000 toward rebuilding a church for the Oneidas destroyed by the British in the Revolutionary War. Treaty of December 2, 1794, Art. 4, 7 Stat. 47.

²¹⁹ *G.fts to the chief were continued in later treaties.*

²²⁰ *Oskison, Tecumseh, and his Times* (1938), p. 96.

²²¹ *Stat. 74.* While certain commercial concessions have been noticed before this, for the first time the United States is granted (Art. 4) the

52

INDIAN TREATIES

not to exceed 150 bushels from a salt spring which the Indians had ceded.

The next year another large area was secured from the Dela-wares.²⁰⁶ In this treaty the United States expressly recognizes the Delaware Indians "as the rightful owners of all the country" specifically bounded (Art. 4).

Since the Plankishaw Tribe refused to recognize the title of the Delawares to the land ceded by this treaty,²⁰⁷ Harrison negotiated a separate treaty.²⁰⁸ It provided for land cessions and reserved the right to the United States of apportioning the annuity, "allowing always a due proportion for the chiefs."²¹⁰

Harrison went to St. Louis to meet the chiefs of the Sacs and Foxes, and bargain for their land, which was rich in mineral deposits of copper and lead. There he succeeded in getting, on November 3, 1804,²¹¹ as has been noted by his biographer Dawson, "the largest tract of land ever ceded in one treaty by the Indians since the settlement of North America * * * ."²¹⁴

In this agreement it is stipulated (Art. 8) that "the laws of the United States regulating trade and intercourse with the Indian tribes, are already extended to the country inhabited by the Saukes and Foxes." The tribes also promise to put an end (Art. 10) to the war which waged between them and the Great and Little Osages. Article 11 guarantees a safe and free passage through the Sac and Fox country to every person travelling under the authority of the United States.²¹⁵

The conclusion of the treaty at St. Louis brings to an end for several years negotiations with the Indians of the West. However, treaty-making in other quarters continued and Jefferson was able to inform Congress in 1805:

> Since your last session, the northern tribes have sold²¹⁶ to us the land between the Connecticut Reserve and the former Indian boundary, and those on the Ohio, from the same boundary to the Rapids, and for a considerable depth inland. The Chickasaws and the Cherokees have sold²¹⁷ us the country between and adjacent to the two districts of

right to locate three tracts of land as sites for houses of entertainment. However, if ferries are established in connection therewith, the Indians are to cross said ferries toll free.

Six other treaties which need not be examined at length were negotiated during the first years of Jefferson's Administration: Chickaaws, Treaty of October 24, 1801, 7 Stat. 65; Choctaws, Treaty of December 17, 1801, 7 Stat. 66; Crecks, Treaty of June 16, 1802, 7 Stat. 68; Senecas, Treaty of June 30, 1802, 7 Stat. 72; Choctaws, Treaty of October 17, 1802, 7 Stat. 73; Choctaws, Treaty of August 31, 1803, 7 Stat. 80. These included two treaties for the building of roads through Indian territory, two treaties reliquiring areas of land to private individuals under the sanction of the United States, and two treaties for running boundary lines in accordance with previous negotiations, and two treaties providing for cessions of territory to the United States.

²⁰⁶ Treaty of August 18, 1804, 7 Stat. 81.

²⁰⁷ See Art. 6, Treaty of August 18, 1804, with the Delawares, 7 Stat. 81.

²⁰⁸ August 27, 1804, 7 Stat. 83.

²⁰⁹ Ibid., Art. 4.

²¹⁰ Treaty of November 3, 1804, 7 Stat. 84, construed in *Sac and Fox Indians of the Mississippi in Iowa v. Sac and Fox Indians of the Mississippi in Oklahoma*, 220 U. S. 481 (1911).

²¹¹ Oskison, *op. cit.*, p. 105.

²¹² An additional article provided that under certain conditions grants of land from the Spanish Government, not included within the treaty boundaries should not be invalidated. This particular provision was given application in a decision by the Supreme Court of the United States in *Marsh v. Brooks*, 14 How. 513 (1852).

²¹³ Treaty with the Wyandots, Ottawas, etc., of July 4, 1805, 7 Stat. 87; Treaty with the Delawares, Pottawatamies, etc., of August 21, 1805, 7 Stat. 91. In this last-mentioned treaty the United States agreed to consider (Art. 4) the Miamis, Eel River, and Wea Indians as "Joint owners" of a certain area of land and for the first time agreed not to purchase said land without the consent of each of said tribes. In early treaties the Chippewas were dealt with as a single tribe, *Chippewa Indians of Minnesota v. United States*, 301 U. S. 358 (1937).

²¹⁴ Treaty with the Chickasaws of July 23, 1805, 7 Stat. 89; Treaties with the Cherokees of October 25 and 27, 1805, 7 Stat. 93, 95.

Tennessee, and the Creeks²⁰⁸ the residue of their lands in the fork of Ocumulgee up to the Ulcofauhatche. The three former purchases are important, inasmuch as they consolidate disjointed parts of our settled country, and render their intercourse secure; and the second particularly so, as, with the small point on the river, which we expect is by this time ceded by the Piankeshaws,²⁰⁹ it completes our possession of the whole of both banks of the Ohio, from its source to near its mouth, and the navigation of that river is thereby rendered forever safe to our citizens settled and settling on its extensive waters. The purchase from the Creeks too has been for some time particularly interesting to the State of Georgia.²¹⁰

A treaty negotiated with the Choctaws in November 16, 1805,²¹¹ contained the first reservation of land for the use of individual Indians.²¹²

Article 2 carries the significant provision of

Forty eight thousand dollars to enable the Mingoes to discharge the debt due to their merchants and traders * * * .²¹³

The treaty with the Great and Little Osages of November 10, 1808,²¹⁵ provided in addition to land cessions,²¹⁶ the pledge (Art. 12) that the Osages would not furnish * * * any nation or tribe of Indians not in amity with the United States, with guns, ammunitions, or other implements of war."

In one of his last official messages to Congress on November 8, 1808, Jefferson observed:

> With our Indian neighbors the public peace has been steadily maintained. Some instances of individual wrong have, as at other times, taken place, but in no wise imitating the will of the nation. Beyond the Mississippi, the Iowas, the Sacs, and the Alabamas, have delivered up for trial and punishment individuals from among themselves, accused of murdering citizens of the United States. On this side of the Mississippi, the Creeks are exerting themselves to arrest offenders of the same kind; and the Choctaws have manifested their readiness and desire for amicable and just arrangements respecting deprecations committed by disorderly persons of their tribe. * * * one of the two great divisions of the Cherokee nation have now under consideration to solicit the citizenship of the United States, and to be identified with us in laws and government, in such progressive manner as we shall think best.²¹⁷

During this time there had come into power and influence among a great number of Indian tribes a Shawnee, Tecumseh, and his brother Laulewaskau called "The Prophet." When disturbing reports of the behavior of the two Shawnees reached Harrison, he resolved to press further before all Indian tribes were rendered unwilling to part with their land. Accordingly in September 1809, he convened the head men of the Delawares, Pottawatomies, Miamis, and Eel River Miamis and requested some 2,600,000 acres.²²¹ This they yielded.²²² A month later

²¹³ Treaty of November 14, 1805, 7 Stat. 96, construed in *Coffee v. Groover*, 123 U. S. 1, 14 (1887).

²¹⁴ Treaty of December 30, 1805, 7 Stat. 100.

²¹⁵ Message of December 3, 1805, in Debates and Proceedings (1805-7), vol. 15, p. 15.

²¹⁶ Treaty of November 16, 1805, 7 Stat. 98.

²¹⁷ *Ibid*, Art. 1. A tract of land was reserved for the use of Alzira and Sophia, daughters of a white man and Choctaw woman.

²¹⁸ This is not the first time that allusion to the distressed financial situation of the Indians was made in a treaty. Both the Treaty with the Creeks, June 16, 1802, Art. 2, 7 Stat. 68, and the Treaty with the Chickasaws, July 23, 1805, Art. 2, 7 Stat. 89, make mention of debts owed by the natives. Also see Chapter 8, sec. 7C.

²¹⁹ Treaty of November 10, 1808, 7 Stat. 107, construed in *Hot Springs Cases*, 92 U. S. 698, 704 (1875).

²²⁰ Debates and Proceedings (1808-9), vol. 19, p. 13.

²²¹ *Ibid*. By the Treaty of Detroit, November 17, 1807, 7 Stat. 105, and the Treaty of Brownstown, November 25, 1808, 7 Stat. 112, less important territorial cessions were secured.

²²² Oskison, *op. cit.*, p. 106.

²²³ Treaty of September 30, 1809, 7 Stat. 113.

A HISTORY OF INDIAN TREATIES

53

Harrison concluded an agreement with the Weas recognizing their claim to the land just ceded and extinguishing it for an annuity and a cash gift; and promised additional money if the Kickapoos should agree to the cession.²⁰⁰ Shortly thereafter, December 9, 1800, the Kickapoos capitulated and ceded some 256,000 acres for a $500 annuity plus $1,500 in goods.²⁰¹

These cessions soon occasioned dissatisfaction among the Indians and, in the summer of 1810, with Indian war imminent in the Wabash valley, Harrison summoned Tecumseh and his warriors to a conference at Vincennes.²⁰² Here the Shawnee Chief delivered his ultimatum. Only with great regret would he consider hostilities against the United States, against whom land purchases were the only complaint. However, unless the treaties of the autumn of 1800 were rescinded, he would be compelled to enter into an English alliance.²⁰³

Upon being informed by the Governor that such conditions could not be accepted by the Government of the United States, Tecumseh proceeded to merge Indian antagonisms with those of a larger conflict—the War of 1812 with Great Britain. The only treaty of military alliance the United States was able to negotiate was that with the Wyandots, Delawares, Shawanoese, Senecas, and Miamies on July 22, 1814.²⁰⁴

In 1813 war broke out among the Upper Creek towns that had been aroused by the eloquence of Tecumseh several years before. Fort Mims near Mobile was burned, and the majority of its inhabitants killed.²⁰⁵ Andrew Jackson, in charge of military operations in that quarter, launched an obstinate and successful campaign, leveling whole towns in the process.²⁰⁶

Since the Creeks were a nation, and the hostile Creeks could not make a separate peace, Jackson met with representatives of the nation, friendly for the most part, and presented his "Articles of Agreement and Capitulation."²⁰⁷

The General demanded the surrender of 23,000,000 acres,²⁰⁸ half or more of the ancient Creek domain,²⁰⁹ as an indemnity for war expenses. Failure to comply would be considered hostile.²¹⁰ A large part of this territory belonged to the loyal Creeks, but Jackson made no distinction. Under protest, the "Articles of Agreement and Capitulation" were signed August 9, 1814.²¹¹

²⁰⁰ *Treaty of October 26, 1809, 7 Stat. 116.*

²⁰¹ *Treaty of December 9, 1809, 7 Stat. 117.* Acreage from Osikson, *op. cit.*, p. 107.

²⁰² *Adams, History of the United States of America During the First Administration of James Madison (1809-1906), vol. VI, p. 85.*

²⁰³ *Ibid.*, pp. 87-88.

²⁰⁴ *Treaty of July 22, 1814, 7 Stat. 118.*

²⁰⁵ *Adams, op. cit., vol. VII, pp. 228-231.*

²⁰⁶ *Ibid.*, vol. VII, pp. 255-257.

²⁰⁷ *Ibid.*, vol. VII, pp. 259-260.

²⁰⁸ *James, Andrew Jackson (1933), p. 189.*

²⁰⁹ *Adams, op. cit., vol. VII, p. 260.* Adams estimates that two-thirds of the Creek land was demanded; James estimates one-half (*op. cit.*, p. 189).

²¹⁰ *James, op. cit., p. 190; Adams, op. cit., p. 260.*

²¹¹ *7 Stat. 120.* "Title of the Creek Nation" to lands in Georgia "was extinguished throughout most of the southern part of the state by the treaties made with the nation in 1802, 1805, and 1814. 7 Stat. 68, 96, 120." *Coffee v. Grooer*, 123 U. S. 8, 14 (1887). This land cession was the subject of much controversy for more than a century. After the passage of the so-called jurisdiction act (Act of May 24, 1924, 43 Stat. 139), giving jurisdiction to the Court of Claims to render judgment on claims arising out of Creek treaties, the Creek Nation filed a petition seeking payment for the twenty-three millions and more acres of land with interest, averring that—

* * * the representatives of the Creek Nation met, all of them, with one exception, being friendly and not hostile to the United States, and protested to General Jackson that the land were perpetually guaranteed to the Creek Nation by treaty, that the hostile Creeks had no interest in the fee to the lands, and that lands required to be ceded. * * * "that said Jackson represented to said council that he was without power to make any agreement to compensate them for their lands and that unless

Certain other provisions indicate the spirit of capitulation in which the treaty was negotiated. For example, Article 3 demands that all communication with the British and the Spanish be abandoned, and Article 6 provides that "all the prophets and instigators of the war * * * who have not submitted to the arms of the United States * * *" be surrendered.

The terms of the peace which brought to an end the War of 1812 provided for a general amnesty for the Indians,²¹² and the Federal Government proceeded to come to terms of peace with the various tribes. Twenty treaties were negotiated in 2 years, providing chiefly for mutual forgiveness, perpetual peace, and delivering up of prisoners, the recognition of former treaties, and acknowledgment of the United States as sole protector.²¹³

## E. INDIAN REMOVAL WESTWARD: 1817-1846

With the increasing reluctance of Indians to part with their lands by treaties of cession, the policy of removal westward was accelerated. The United States offered lands in the West for territory possessed by the Indians in the eastern part of the United States. This served the double purpose of making available for white settlement a vast area, and solving the problem of conflict of authority caused by the presence of Indian nations within state boundaries.

Although the program had been considered in certain quarters for some time, it was not until after the close of the War of 1812 that the first exchange treaty was concluded.²¹⁴ Then for all

they signed the treaty as he had drawn it he would furnish the whole tribe with provisions and ammunition and that they could go down to Pensacola and join the Red Sticks and British and that, by the time they got there, he would be on their tracks and whip them and the British and drive them into the sea." and that driven to this extremity they submitted and signed the treaty. (Pp. 271-272.)

This petition was dismissed on March 7, 1927, the Court of Claims holding that the jurisdictional act does not give jurisdiction over a claim, the allowance of which involved the setting aside of a treaty on the ground that it was entered into under fraud. *Creek Nation v. United States*, 63 C. Cls. 270 (1927), cert. den. 274 U. S. 751.

²¹¹ *Ninth Article, Treaty of Ghent of December 24, 1814, 8 Stat. 218.*

²¹² *Poutawatamie, July 18, 1815, 7 Stat. 123; Plankishaw, July 18, 1815, 7 Stat. 124; Teeton, July 19, 1815, 7 Stat. 125; Sioux of Lake, July 19, 1815, 7 Stat. 126; Sioux of the River of St. Peters, July 19, 1815; 7 Stat. 127; Kankton, July 9, 1815, 7 Stat. 128; Mahus, July 20, 1815, 7 Stat. 129; Kickapoos, September 2, 1815, 7 Stat. 130; Delawares, Wyandots, Senecas, etc., September 8, 1815, 7 Stat. 131; Great and Little Osage, September 12, 1815, 7 Stat. 133. The Supreme Court in construing the treaty with the Great and Little Osages, September 12, 1815, states: "peace was reestablished between the contracting parties, and former treaties were renewed. * * * State of Missouri v. State of Iowa, 7 How. 559, 668 (1849). Sac, September 13, 1815, 7 Stat. 134; Fox, September 14, 1815, 7 Stat. 135; Iaway, September 16, 1815, 7 Stat. 136; Kanzas, October 28, 1815, 7 Stat. 137; Sacs of Rock River, May 13, 1816, 7 Stat. 141; Sioux of the Leaf, Sioux of the Broad Leaf, and Sioux Who Shoot in the Pine Tops, June 1, 1816, 7 Stat. 143; Winnebago, June 3, 1816, 7 Stat. 144; Menomence, March 30, 1817, 7 Stat. 153; Ottoes, June 24, 1817, 7 Stat. 154; Poncarar, June 25, 1817, 7 Stat. 155.*

Five other treaties negotiated during this period provided for cessions of territory: Cherokees March 22, 1816, 7 Stat. 138; Ottawas, Chippawas, etc., August 24, 1816, 7 Stat. 146; Cherokee, September 14, 1816, 7 Stat. 148; Chickasaws, September 20, 1816, 7 Stat. 150; Chactaw, October 24, 1816, 7 Stat. 152.

The Treaty of September 20, 1816, 7 Stat. 150, with the Chickasaws, made provision (Art. 6) for liberal presents to specified chiefs and individual Indians. Article 7 provided that no more licenses were to be granted to peddlers to traffic in goods in the Chickasaw Nation.

²¹³ *Treaty of July 8, 1817, 7 Stat. 156.* Construed in *Cherokee Nation v. Georgia*, 5 Pet. 1, 6 (1831); *Marsh v. Brooks*, 8 How. 223, 232 (1850); *Holden v. Joy*, 17 Wall. 211, 212 (1872). The Supreme Court again construed this treaty in *Heckman v. United States*, 224 U. S. 413, 429 (1912). "In 1817 * * * the Cherokee Nation ceded to the United States certain tracts which they formerly held, and in exchange the United States bound themselves to give to that branch of the Nation on the Arkansas as much land as they had received, or might thereafter

54

INDIAN TREATIES

most 30 years thereafter Indian treaty making was concerned
almost solely with removing certain tribes of natives to the
vacant lands lying to the westward. The first and most sig-
nificant of these treaties was concluded with the southern tribes
later known as the "Five Civilized Tribes."

1. *Cherokees*.—In 1816 Andrew Jackson as Commissioner for the United States met with the Cherokees to discuss the proposition of exchanging lands. Many influential Cherokees were bitterly opposed to it, and the great majority of Indians were extremely dubious of the value of removing elsewhere.

However, the next year a treaty, prepared by Andrew Jack-
son, was accepted by representatives of the Cherokee Nation.²¹⁴
Its recitals include (Art. 5) a cession of the land occupied by the
Cherokee Nation in return for a proportionate tract of country
elsewhere, a stipulation (Art. 3) for the taking of a census of
the Cherokee Nation in order to determine those emigrating and
those remaining behind and thus divide the annuities between
them; compensation for improvements (Arts. 6 and 7), and
(Art. 8) reservations of 640 acres of Cherokee land in life estate
with a reversion in fee simple to their children, to "each and
every head of any Indian family residing on the east side of the
Mississippi River * * * who may wish to become citizens
* * *."²¹⁵ These "reservations" were the first allotments, and
the idea of individual title with restrictions on alienation, as a
basis of citizenship, was destined to play a major role in later
Indian legislation.

When the attempt to execute the treaty was made, its weak-
nesses came to light. Removal was voluntary, and the national
will to remove was lacking. In 1819 a delegation of Cherokees
appeared in Washington and negotiated with Secretary Calhoun
a new treaty,²¹⁶ which contemplated a cessation of migration.

The Cherokee Nation opposed removal and further cession of
land, but once more the Federal Government sought to per-
suade them to move west. By the treaty of May 6, 1828,²¹⁷ made
with that portion of the Cherokee Nation which had removed
across the Mississippi pursuant to earlier treaties, another offer
was made. Article 8 provides:

* * * that their Brothers yet remaining in the States
may be induced to join them * * * it is further
agreed, on the part of the United States, that to each Head
of a Cherokee family now residing within the chartered
limits of Georgia, or of either of the States, East of the
Mississippi, who may desire to remove West, shall be
given, on enrolling himself for emigration, a good Rifle, a
Blanket, and Kettle, and five pounds of Tobacco: (and to
each member of his family one Blanket,) also, a just com-
pensation for the property he may abandon, to be assessed

receive, east of the Mississippi. * * * The tribe (Cherokee) was divided into two bodies, one of which remained where they were, east of the Mississippi, and the other settled themselves upon United States land in the country on the Arkansas and White rivers.

The effect of reserves to individual Indians of a mile square each, secured to heads of families by the Cherokee treaties of 1817 and 1819, is directly decided in the case of *Cornet v. Winton's Lessee*, 2 Yergers Ten. Rep. 143 (1826). The division of the Cherokee Nation into two parties is also discussed in *Old Settlers v. United States*, 148 U. S. 427, 435-436 (1893).

²¹⁴ Treaty of July 8, 1817, 7 Stat. 156. It is to be noted that in the preamble of the treaty the following quotation of President Madison is cited with approval:

* * * when established in their new settlements, we shall
still consider them as our children, give them the benefit of
exchanging their peltries for what they will want at our fac-
tories, and always hold them firmly by the hand.

²¹⁵ For opinions of the Attorney General on compensation provided by the sixth and seventh articles on rights of reserves and on descent of lands, see 3 Op. A. G. 326 (1838); 3 Op. A. G. 367 (1838); 4 Op. A. G. 116 (1842); 4 Op. A. G. 580 (1847).

²¹⁶ Treaty of February 27, 1819, 7 Stat. 195.

²¹⁷ Stat. 311.

by persons to be appointed by the President of the United
States.²¹⁸

This treaty was negotiated to define the limits of the Cherokees' new home in the West—limits which were different from those contemplated by the treaty of 1817 and convention of 1819 and included the following promise:

The United States agree to possess the Cherokee, and to
guarantee it to them forever, and that guarantee is hereby
solemnly pledged, of seven millions of acres of land,
* * *.*²¹⁹

Also interesting is the preamble wherein is stated:

* * * the anxious desire of the Government of the United States to secure to the Cherokee nation of Indians * * * a *permanent* home, and which shall, under the most solemn guarantee of the United States, be, and remain, theirs forever—a home that shall never, in all future time, be embarrassed by having extended around it the lines, or placed over it the jurisdiction of a Territory or State, nor be pressed upon by the extension, in any way, of any of the limits of any existing Territory or State; * * * *²²⁰ (P. 311.)

Article 6 provided that whenever the Cherokees desired it, a
set of plain laws suited to their condition would be furnished.²²¹

Confidential agents were then sent to the Cherokee Nation to renew efforts to secure immigrants to the west, but these efforts met with little success.²²² Obviously more forceful measures would have to be used, and the expansionists awaited eagerly the replacing of John Quincy Adams with a Chief Executive who would not hesitate to take such action.²²³

The election of 1828 supplied just such a President. Despite a conciliatory inaugural address,²²⁴ Andrew Jackson immediately made it clear that the Indians must go West.²²⁵ In this he was

²¹⁸ The term "property which he may abandon" is construed as fixed property, "that which he could not take with him; in a word, the land and improvements which he had occupied" in 2 Op. A. G. 321 (1830).

²¹⁹ Treaty of May 6, 1828, Art. 2, 7 Stat. 311.

²²⁰ This treaty was ratified with the proviso that it should not interfere with the lands assigned or to be assigned to the Creek Indians nor should it be construed to cede any lands heretofore ceded to any tribe by any treaty now in existence.

On February 14, 1833, a treaty (7 Stat. 414) to settle disputed Creek claims was negotiated with the Cherokee Nation west of the Mississippi. In addition to certain amendments to the preceding agreement, an outlet described as a

* * * perpetual outlet. West, and a free and unmolested use of all the Country lying West of the Western boundary of the above described limits, and as far West as the sovereignty of the United States, and their right of soil extend

which had been guaranteed in Treaty of May 6, 1828, Art. 2, 7 Stat.
314, was re-firmed.

²²¹ This article was canceled, at Cherokee request, by Treaty of February 14, 1833, Art. 3, 7 Stat. 414.

²²² Foreman, Indian Removal (1932), pp. 21, 231; Abel, Indian Consolidation, in Annual Report, American Historical Association (1906), vol. 1, p. 361.

²²³ *Abel, op. cit.*, p. 370.

²²⁴ In his speech of March 4, 1829, Jackson said:

> It will be my sincere and constant desire to observe toward the
> Indian tribes within our limits a just and liberal policy, and,
> to give that humane and considerate attention to their rights
> and their wants which is consistent with the habits of our
> Government and the feelings of our people. (H. Misc. Doc., 53d
> Cong. 2d sess. (1893-94), vol. 37, pt. 2, p. 438.)

²²⁵ See Abel *op. cit.*, p. 370, 378; Foreman, *op. cit.*, p. 21. In his first message to Congress of December 8, 1829, Jackson urged voluntary removal as a protection to the Indians and the states. (H. Misc. Doc., 53d Cong. 2d sess., vol. 37, pt. 2, p. 458.) On May 28, 1830, the Indian Removal Act (4 Stat. 411, 25 U. S. C. 174, R. S. 28, 1830, the Indian Removal Act of 1830, 1834). It was passed. (Amendments guaranteeing protection to the § 2114) was passed. (Amendments guaranteeing protection to the Indians from the states and respect for treaty rights until removal were defeated. *Abel, op. cit.*, p. 380.) It gave to President Jackson power to initiate proceedings for exchange of lands. This was begun, with requests for conferences, in August of 1830 (Foreman, *op. cit.*,

A HISTORY OF INDIAN TREATIES

55

aided by the legislature of Georgia which had enacted laws to harrass and make intolerable the life of the Eastern Cherokee.²⁶⁰

When the objectives of the hostile legislation became evident the chief of the Cherokee Nation, John Ross, determined to seek relief and filed a motion in the Supreme Court of the United States to enjoin the execution of certain Georgia laws. The bill reviewed the various guarantees in the treaties between the Cherokee Nation and the United States and complained that the action of the Georgia legislature was in direct violation thereof.

While the jurisdiction of the Supreme Court was denied on the grounds that the Cherokee Nation was not a foreign state within the meaning of the Constitution, Chief Justice Marshall nevertheless gave utterance to a highly significant analysis—the first judicial analysis—of the effect of the various treaties upon the status of the Indian nation:

* * * The numerous treaties made with them by the United States, recognise them as a people capable of maintaining the relations of peace and war, of being responsible in their political character for any violation of their engagements, or for any aggression committed on the citizens of the United States, by any individual of their community. Laws have been enacted in the spirit of these treaties. The acts of our government plainly recognise the Cherokee nation as a state, and the courts are bound by those acts.²⁶¹

Shortly thereafter, two missionaries, Worcester and Butler, were indicted in the Superior Court of Gwinnett County for residing in that part of the Cherokee country attached to Georgia by recent state laws, in violation of a legislative act which forbade the residence of whites in Cherokee country without an oath of allegiance to the state and a license to remain.²⁶² Mr. Worcester pleaded that the United States had acknowledged in its treaties with the Cherokees the latter's status as a sovereign nation and as a consequence the prosecution of state laws could not be maintained. He was tried, convicted and sentenced to 4 years in the penitentiary.

On a writ of error the case was carried to the Supreme Court of the United States, where the Court asserted its jurisdiction and reversed the judgment of the Superior Court for the County of Gwinnett in the State of Georgia, declaring that it had been pronounced under color of a law which was repugnant to the Constitution, laws and treaties of the United States. Chief Justice Marshall in delivering this opinion examined the recitals of the various treaties with the Cherokees and proceeded to point out:

* * * They [state laws] interfere forcibly with the relations established between the United States and the Cherokee nation, the regulation of which, according to the settled principles of our constitution, are committed exclusively to the government of the Union. They are in direct hostility with treaties, repeated in a succession of years, which mark out the boundary that separates the Cherokee country from Georgia; guaranty to them all the land within their boundary; solemnly pledge the faith of the United States to restrain their citizens from trespassing on it; and recognise the pre-existing power of the nation to govern itself. They are in hostility with the acts of congress for regulating this intercourse, and giving effect to the treaties. * * * ²⁶³

pp. 21-22). The Indians were advised that refusal meant end of federal protection and abandonment to state laws (Abel, op. cit., p. 382; Foreman, op. cit., pp. 231-232.)

²⁶⁰ See Worcester v. Georgia, 6 Pet. 515 (1832). See also, Foreman, op. cit., pp. 229-230.

²⁶¹ Cherokee Nation v. Georgia, 5 Pet. 1, 16 (1831). See Chapter 14, sec. 3.

²⁶² Foreman, op. cit. p. 235.

²⁶³ Worcester v. Georgia, 6 Pet. 515, 561, 562, (1832). On the failure of Georgia to abide by the Supreme Court decision, see Chapter 7, sec. 2.

In September 1831, the President sent Benjamin F. Currey of Tennessee into the Cherokee country to superintend the work of enrolling the natives for the journey to the west.²⁶⁴ Currey found the task difficult and slow, only 71 families enrolling by December.²⁶⁵ The Cherokees were divided on removal, one group headed by John Ridge favorable to emigration, another faction remaining loyal to their chief, John Ross, and opposed to the program.²⁶⁶ In 1834 the Ridge faction negotiated a sweeping treaty for removal which failed of ratification by the Cherokee council.²⁶⁷

In 1835, delegates from both factions were sent to Washington. After the Ross group had refused the President's terms, negotiations were opened with the opposing party, and on March 14 an agreement was drawn up which was not to be considered binding until it should receive the approval of the Cherokee people in full council.²⁶⁸

At a full council meeting in October 1835, at Red Clay, Tennessee, both factions, temporarily abandoning their quarrels, united in opposition to this treaty and rejected it.²⁶⁹ Another meeting was then called at New Echota, and a new treaty was negotiated and signed.²⁷⁰

By Article 1, the Cherokee Nation ceded all their land east of the Mississippi River to the United States for $5,000,000.

Article 2 of this instrument recites that whereas by treaties with the Cherokees west of the Mississippi, the United States had guaranteed and secured to be conveyed by patent a certain territory as their permanent home, together with "a perpetual outlet west," provided that other tribes shall have access to saline deposits on said territory, it is now agreed "to convey to the said Indians, and their descendants by patent, in fee simple * * *" certain additional territory.

The estate of the Cherokees in their new homeland (by Art. 2, 7,000,000 acres and an additional 800,000 acres) has been variously called a fee simple,²⁷¹ an estate in fee upon a condition subsequent,²⁷² and a base, qualified or determinable fee.²⁷³

Article 5 provides that the new Cherokee land should not be included within any state or territory without their consent, and

²⁶⁰ The methods which were employed at this time have been described thus:

Intrigue was met by Intrigue. Currey secretly employed intelligent mixed-breeds for a liberal compensation to circulate among the Indians and advance arguments calculated to break down their resistance. * * * Filled with liquor, the Indians were charged with debts for which their property was taken with or without process of law. (Foreman, op. cit., p. 236.)

²⁶¹ Ibid., p. 241.

²⁶² Abel, op. cit. fn. 352 p. 403.

²⁶³ Treaty of June 19, 1834 (unratified). This treaty ceded to the United States all the Cherokee land in Georgia, North Carolina, Tennessee, and Alabama, and the Indians agreed to move west. Abel, op. cit., p. 403; Foreman, op. cit., pp. 264, 265.

²⁶⁴ Treaty of March 14, 1835 (unratified). By this treaty the tribe ceded all its eastern territory and agreed to move west for $4,500,000. Foreman, op. cit., p. 266; Abel, op. cit. pp. 403, 404.

²⁶⁵ Foreman, op. cit., pp. 266-267.

²⁶⁶ December 29, 1835, 7 Stat. 478, 488 (Supplement). The events leading to this treaty are analyzed in L. K. Cohen, The Treaty of New Echota (1936), 3 Indians at Work, No. 19.

²⁶⁷ Cherokee Nation v. Southern Kansas Railway Co., 135 U. S. 641 (1890). In United States v. Rogers, 23 Fed. 658, 664 (D. C. W. D. Ark. 1885), the court insisted:

* * * By looking at the title of the Cherokees to their lands, we find that they hold them all by substantially the same kind of title, the only difference being that the outlet is encumbered with the stipulation that the United States is to permit other tribes to get salt on the Salt plains. With this exception, the title of the Cherokee Nation to the outlet is just as fixed, certain, extensive, and perpetual as the title to any of their lands.

The President and Senate in concluding a treaty, can lawfully covenant that a patent should issue to convey lands which belong to the United States. Holden v. Joy, 17 Wall. 211 (1872).

²⁶⁷ Holden v. Joy, 17 Wall. 211 (1872).

²⁶⁸ United States v. Reese, 27 Fed. Cas. No. 16, 137 (D. C. Mass. 1868).