FOOTNOTES:
[K] From The International Review, May, 1874.
[L] The doctrine of a vanishing Indian nationality was strongly insisted on by Mr. Justice McLean in his opinion in Worcester vs. the State of Georgia:—
"If a tribe of Indians shall become so degraded or reduced in numbers as to lose the power of self-government, the protection of the local law, of necessity, must be extended over them. The point at which this exercise of power by a State would be proper need not now be considered, if, indeed, it be a judicial question.... But, if a contingency shall occur which shall render the Indians who reside in a State incapable of self-government, either by moral degradation or a reduction of their numbers, it would undoubtedly be in the power of a State government to extend over them the ægis of its laws."—6 Peters, pp. 593-4.
If, as would appear, Mr. Justice McLean by this intends that a State may exercise such discretion so long as the United States continue to recognize the tribal organization, however feeble or corrupt it may in fact be, the doctrine is flatly contradicted by that of the Supreme Court in the Kansas Indians.—5 Wallace, 737.
[M] We are aware that this is a heavy charge; but it is justified by the facts. The recital is incomplete. The decision in the United States vs. Rogers is not referred to. This case is, as it was treated by the Supreme Court in the Cherokee Tobacco, of the highest importance.
The recital is inaccurate. An opinion is given at length as that of Kent in Jackson vs. Goodell, 20 Johnson, 193. This is a case in the Supreme Court of New York, Chief-Justice Spencer delivering the opinion, Kent having been previously appointed chancellor. The expressions quoted by the Committee are to be found in Goodell vs. Jackson, in error to the Court of Appeals, 20 Johnson, 693. The recital is inconsequential, as will appear by what is said further in the text.
[N] "We think it too firmly and clearly established to admit of dispute, that the Indian tribes residing within the territorial limits of the United States are subject to their authority; and where the country occupied by them is not within the limit of one of the States, Congress may by law punish any offence committed there, whether the offender be a white man or an Indian."—Taney, Chief-Justice.
In the Cherokee Tobacco, the court, quoting from Chief-Justice Taney the sentence just preceding, and a similar utterance of Chief-Justice Marshall, remarks, "Both these propositions are so well settled in our jurisprudence, that it would be a waste of time to discuss them, or to refer to further authorities in their support."
[O] Throughout the whole course of this discussion on the constitutional relations of the Indians, we should indicate as subject to possible exception the tribes found upon soil ceded by Mexico. It is claimed, that, as Mexico never treated the Indians within its jurisdiction other than as a peculiar class of citizens, all the members of those tribes became citizens of the United States by virtue of the provisions of the Treaty of Guadalupe Hidalgo, 1848.
[P] "Although the Committee have not regarded the questions proposed for their consideration by this resolution as at all difficult to answer, yet respect for the Senate, which ordered the investigation, and the existence of some loose popular notions of modern date in regard to the power of the President and Senate to exercise the treaty-making power in dealing with the Indian tribes, have induced your Committee to examine the questions thus at length, and present extracts from treaties, laws, and judicial decisions; and your Committee indulge the hope that a reference to these sources of information may tend to fix more clearly in the minds of Congress and the people the true theory of our relations to these unfortunate tribes."—Report, p. 11. It would, perhaps, have been fortunate had the Committee found the questions difficult.
[Q] See Annual Report, Board of Indian Commissioners, 1872, p. 12.
Constant efforts are made to break the force of such comparisons as these, by asserting that the progress of the Indian Territory in industry and the arts of life is due to white men incorporated with the Creeks, Cherokees, and Choctaws. If this be true, it would seem that white men, when brought under Indian laws, and adopted into Indian families, exhibit qualities superior to those which they develop when controlling themselves, and organizing their own forms of industry and of government. This suggests the inquiry, whether it might not be well to turn over two or three Territories that might be named, to the Indians, with liberty to pick out white men for adoption and for instruction, in the hope that these communities might in time be brought up to the condition of that of which the Indians have had sole control for forty years.