The Indian Question

by Francis Amasa Walker

The above recital, however tedious, has been necessary in order to set fairly forth the actual condition of the scheme of seclusion, which is still, in profession and seeming, the policy of the government. It must be evident from the recital, that the purposes of this policy are not being answered, and that the increasing difficulties of the situation in the wider and closer contact of the two races will soon compel Congress to review the whole field of Indian affairs, and establish relations, which, if they cannot in the nature of things be permanent, will at least have reference to the facts of the present, and the probabilities of the immediate future. Whenever Congress shall take up in earnest this question of the disposition to be made of the Indian tribes, its choice will clearly be between two antagonistic schemes,—seclusion and citizenship. Either the government must place the Indians upon narrower reservations, proportioned to their requirements for subsistence by agriculture, and no longer by the chase,—reservations which shall be located with the view of avoiding as much as possible the contact of the races, and working as little hindrance as may be to the otherwise free development of population; and around these put up the barriers of forty years ago, re-enforced as the changed circumstances seem to require: or the government must prepare to receive the Indians into the body of the people, freely accepting, for them and for the general community, all the dangers and inconveniences of personal contact and legal equality. No middle ground is tenable. If substantial seclusion is not to be maintained, at any cost, by the sequestration of tribes and by the rigid prohibition of intercourse, it is worse than useless to keep up the forms of reservations and non-intercourse. Many tribes are already as fully subject to all the debasing influences of contact with the whites as they could be if dispersed among the body of citizens; while yet they are without any of the advantages popularly attributed to citizenship.

It requires no deep knowledge of human nature, and no very extensive review of Congressional legislation, to assure us that many and powerful interests will oppose themselves to a re-adjustment of the Indian tribes between the Missouri and the Pacific, under the policy of seclusion and non-intercourse. Railroad enterprises, mining enterprises, and land enterprises of every name, will find any scheme that shall be seriously proposed to be quite the most objectionable of all that could be offered: every State, and every Territory that aspires to become a State, will strive to keep the Indians as far as possible from its own borders; while powerful combinations of speculators will make their fight for the last acre of Indian lands with just as much rapacity as if they had not already, in Western phrase, "gobbled" a hundred thousand square miles of it.

In addition to the political, industrial, and speculative interests which will thus oppose the restoration of the policy of Indian seclusion from the shattered condition to which the events just recited have reduced it, three classes of persons may be counted on to lend their support to the plan of introducing the Indians, who have thus far been treated as "the wards of the nation," directly into the body of our citizenship. We have, first, those who have become impatient of the demands made upon the time of Congress and the attention of the people in the name of the Indians, and who wish, once for all, to have done with them. Such impatience is neither unnatural nor wholly unreasonable. It must be confessed that no good work ever made heavier drafts upon the faith and patience of the philanthropic. What with the triviality of the Indian character, the absurd punctilio with which, in his lowest estate, he insists on embarrassing the most ordinary business, and his devotion to sentiments utterly repugnant to our social and industrial genius; what, again, with the endless variety of tribal relations and tribal claims, and the complexity of tribal interests, aggravated by jealousy and suspicion where no previous intercourse has existed, and by feuds and traditions of hatred where intercourse has existed,—the conduct of Indian affairs, whether in legislation or in administration, is in no small degree perplexing and irritating. The Indian treaties prior to 1842 make up one entire volume of the General Statutes, while the treaties and Indian laws since that date would fill two volumes of equal size. It cannot be denied that this is taking a good deal of trouble for a very small and not very useful portion of the population of the country: and it is not to be wondered at that many citizens, and not a few Congressmen, are much disposed to cut the knot instead of untying it, and summarily dismiss the Indian as the subject of peculiar consideration, by enfranchising him, not for any good it may do to him, but for the relief of our legislation.

Next, we have that large and increasing class of Americans, who, either from natural bias, or from the severe political shocks of the last twelve years, have accepted what we may call the politics of despair, by which is meant, not so much a belief in any definite ill fortune for the Republic, as a conviction that the United States are being borne on to an end not seen, by a current which it is impossible to resist; that it is futile longer to seek to interpose restraints upon the rate of this progress, or to change its direction; that the nation has already gone far outside the traditional limits of safe political navigation, and is taking its course, for weal or woe, across an unknown sea, not unlike that little squadron which sailed out from the Straits of Saltez on the 3d of August, 1492. Many of the persons now holding these views were formerly among the most conservative of our people; but emancipation, negro suffrage, and the consolidation of power consequent upon the war, have wholly unsettled their convictions, leaving them either hopeless of the Republic, or, as temperament serves, eager to crowd on sail, and prove at once the worst and the best of fortune. In this despair of conservative methods, some of these men have acquired an oddly objective way of looking at their country, which to every man ought to be a part of himself, and have apparently as much of a curious as of a patriotic interest in watching the development of the new forms and forces of national life. Men of this class (and they are not few) are not likely to hesitate in extending to the Indians citizenship and the ballot. A little more or less, they think, can make no difference. After negro suffrage, any thing.

Finally, we have a class of persons, who, from no impatience of the subject, and from no indifference to the welfare of the aborigines, will oppose the policy of seclusion, as an anomaly not to be tolerated in our form of government. These are men who cannot bear, that, from any assumed necessity or for any supposed advantage, exception should be made of any class of inhabitants, or in respect to any portion of territory, to the rule of uniform rights and responsibilities, and of absolute freedom of movement, contract, and intercourse, the whole nation and the whole land over. Were the Indians ten times as numerous, were their claims to consideration stronger by no matter how much, and were the importance to them of seclusion far more clear than it appears, these political philosophers would steadily oppose the scheme. They might regret the mischiefs which would result to the Indian from exposure to corrupting influences; they might be disposed to favor the most liberal allowances from the public treasury, in compensation to him for his lands, and for his industrial endowment: but they would none the less relentlessly insist that the red man should take his equal chance with white and black, with all the privileges and all the responsibilities of political manhood.

In view of the likelihood that the expediency of Indian citizenship will thus become at an early date a practical legislative question, it seems desirable in the connection to state the constitutional relations of the subject. The judicial decisions are somewhat confused, although, from the date (1831) of the decision of Chief-Justice Marshall in the Cherokee Nation vs. the State of Georgia (5 Peters, 1), to that (1870) of the decision in the Cherokee Tobacco (11 Wallace, 616), there has been a marked progress (note especially the decision of Chief-Justice Taney in the United States vs. Rogers, 4 Howard, 567) towards the stronger affirmation of the complete and sufficient sovereignty of the United States. Yet in December, 1870, the Judiciary Committee of the Senate, Carpenter presenting the Report, after an incomplete, and in some respects an inaccurate and inconsequential[M] recital of judicial opinions, made the following startling announcement:—

"Inasmuch as the Constitution treats Indian tribes as belonging to the rank of nations capable of making treaties, it is evident that an act of Congress which should assume to treat the members of a tribe as subject to the municipal jurisdiction of the United States would be unconstitutional and void."

That this is not good law need not be argued, inasmuch as the decisions previously cited in the United States vs. Rogers and in the Cherokee Tobacco, assert the complete sovereignty of the United States in strong terms[N]; in the latter, the doctrine being explicitly affirmed, that not only does the capability of making a treaty with the United States, which has been held to reside in an Indian tribe, not exempt that tribe from the legislative power of Congress, but that not even a treaty made and ratified, among the stipulations of which is such an exemption, even were that exemption the consideration for cessions the benefit of which the United States has enjoyed and continues to enjoy, can hinder Congress from at any time extending its complete legislative control over the tribe. Considerations of good faith may influence individual Congressmen in such a case; but the constitutional competence of Congress in the premises is declared to be beyond question.

Nor is the extraordinary proposition of the Committee's report better in reason than in law. The argument is in effect this: The United States makes treaties with foreign nations; the United States cannot legislate for foreign nations; the United States may make treaties with Indian tribes: ergo, the United States cannot legislate for Indian tribes. This course of reasoning implies that the sole objection to the United States legislating for foreign nations is, that they makes treaties with them: whereas there are several other good and sufficient objections thereto. It also implies that the sole consideration for the United States treating with Indian tribes, called by Chief-Justice Marshall "domestic dependent nations," is, that they cannot legislate for them: whereas the real consideration has been one of practical convenience, not of legislative competence.

We shall best set forth the constitutional relations of this subject by presenting the premises, whether of fact or of law, upon which all the judicial decisions relative thereto have been founded.