A Century of Dishonor / A Sketch of the United States Government's Dealings with Some of the Indian Tribes

by Helen Hunt Jackson

Kent says: "The European nations which, respectively, established colonies in America, assumed the ultimate dominion to be in themselves, and claimed the exclusive right to grant a title to the soil, subject only to the Indian right of occupancy. The natives were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion, though not to dispose of the soil at their own will, except to the government claiming the right of pre-emption." *** "The United States adopted the same principle; and their exclusive right to extinguish the Indian title by purchase or conquest, and to grant the soil and exercise such a degree of sovereignty as circumstances required, has never been judicially questioned."

Kent also says, after giving the Supreme Court decision in the case of Johnson vs. M'Intosh: "The same court has since been repeatedly called upon to discuss and decide great questions concerning Indian rights and title, and the subject has of late become exceedingly grave and momentous, affecting the faith and the character, if not the tranquillity and safety, of the Government of the United States."

In Gardner's "Institutes of International Law" the respective rights to land of the Indians and the whites are thus summed up: "In our Union the aborigines had only a possessory title, and in the original thirteen States each owned in fee, subject to the Indian right, all ungranted lands within their respective limits; and beyond the States the residue of the ungranted lands were vested in fee in the United States, subject to the Indian possessory right, to the extent of the national limits."

Dr. Walker, in his "American Law," makes a still briefer summary: "The American doctrine on the subject of Indian title is briefly this: The Indians have no fee in the lands they occupy. The fee is in the Government. They cannot, of course, aliene them either to nations or individuals, the exclusive right of pre-emption being in the Government. Yet they have a qualified right of occupancy which can only be extinguished by treaty, and upon fair compensation; until which they are entitled to be protected in their possession."

"Abbott's Digest," one of the very latest authorities, reiterates the same principle: "The right of occupancy has been recognized in countless ways, among others by many decisions of courts and opinions of attorney-generals."

It being thus established that the Indian's "right of occupancy" in his lands was a right recognized by all the Great Powers discovering this continent, and accepted by them as a right necessary to be extinguished either by purchase or conquest, and that the United States, as a nation, has also from the beginning recognized, accepted, and acted upon this theory, it is next in order to inquire whether the United States has dealt honorably or dishonorably by the Indians in this matter of their recognized "right of occupancy."

In regard to the actions of individuals there is rarely much room for discussion whether they be honorable or dishonorable, the standard of honor in men's conduct being, among the civilized, uniform, well understood, and undisputed. Stealing, for instance, is everywhere held to be dishonorable, as well as impolitic; lying, also, in all its forms; breaking of promises and betrayals of trust are scorned even among the most ignorant people. But when it comes to the discussion of the acts of nations, there seems to be less clearness of conception, less uniformity of standard of right and wrong, honor and dishonor. It is necessary, therefore, in charging a government or nation with dishonorable conduct, to show that its moral standard ought in nowise to differ from the moral standard of an individual; that what is cowardly, cruel, base in a man, is cowardly, cruel, base in a government or nation. To do this, it is only needful to look into the history of the accepted "Law of Nations," from the days of the Emperor Justinian until now.

The Roman jurisconsults employed as synonymous, says Wheaton, "the two expressions, 'jus gentium,' that law which is found among all the known nations of the earth, and 'jus naturale,' founded on the general nature of mankind; nevertheless, of these two forms of the same idea, the first ought to be considered as predominant, since it as well as the 'jus civile' was a positive law, the origin and development of which must be sought for in history."

Nations being simply, as Vattel defines them, "societies of men united together," it is plain that, if there be such a thing as the "law of nature," which men as individuals are bound to obey, that law is also obligatory on the "societies" made up of men thus "united."

Hobbes divides the law of nature into that of man and that of States, saying, "The maxims of each of these laws are precisely the same; but as States, once established, assume personal properties, that which is termed the natural law when we speak of the duties of individuals is called the law of nations when applied to whole nations or States." The Emperor Justinian said, "The law of nations is common to the whole human race."