Early Governmental Policy Concerning Indians
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Governmental policy – The policy of the several governments toward the Indians and their methods of pursuing it were often at variance, and therefore should not be confused. The policy itself may have been just, equitable, and humane, while the method of carrying it into effect by those to whom this duty was entrusted was sometimes unjust, oppressive, and dishonest. The governments, other than those of the United States and the colonies, which have had control of parts of the territory N. of Mexico are Great Britain, France, Spain, Russia, Denmark, Sweden, and the Netherlands. Al though the policy adopted by them in their dealings with the Indians differed in some important respects, all agreed in assuming the right of dominion, based on discovery, without regard to the natives. In all the contests between the European nations regarding their claims to territory in the New World the rights of the Indians nowhere were allowed to intervene. The earliest charters, as those to Raleigh and Gilbert, make no allusion to the natives, while most of those of the 17th century call briefly for their Christianization, and efforts to this end were made to some extent in most of the colonies. The questions of most importance in the relations of the whites with the Indians were those relating to the title to the soil. Although each government insisted on the right of dominion in its acquired territory and that of granting the soil, the rights of the original inhabitants were in but few in stances entirely disregarded, though they were necessarily to a considerable extent curtailed (Johnson and Graham’s lessee v. McIntosh, 8 Wheaton, 583 et seq.). The Indians were admitted to be the rightful occupants of the lands, with right of possession over so much as was necessary for their use; yet the policy of the various governments differed in the extent to which the exercise of this right was conceded. While Spain limited it to the lands actually occupied or in use (Recop. de Leyes de los Reynos de las Indias, i, lib. ii, 1774), the United States usually allowed it to the land claimed, whenever the boundaries between the different tribes were duly recognized.
It was the usual policy of the United States and other governments, as well as of the colonies, in dealing with the Indians to treat them as tribes. The Articles of Confederation gave to Congress the “sole and exclusive right and power of regulating the trade and managing all affairs with the Indians” not under State jurisdiction. By the Constitution, the power of Congress in this respect is briefly expressed as follows: “To regulate commerce with foreign nations and among the several States, and with the Indian tribes.” The authority to act in this respect must therefore be found in this clause, in that relating to the making of treaties, and in the general powers granted to Congress and the Executive. The term “tribes” in the clause quoted would indicate that the framers of the Constitution contemplated dealing with the Indians as autonomous groups, through treaties; this was the method followed by the United States until it was changed by the act of Mar. 3, 1871, and was that of the colonies and the mother country. The effect of the act cited was to bring under the immediate control of Congress, as specified in art. I, section 8, clause 3, of the Constitution, all transactions with the Indians, and to reduce to simple agreements what before had been accomplished by solemn treaties. Laws were enacted in the various colonies, and also by the United States, forbidding and rendering void the sale of lands by Indians to individuals. By the act of Congress of Feb. 8, 1887, the later policy of the Government, that the Indian tribes should cease to exist as independent communities and be made part of the body politic, found legislative expression. This act permits tribal lands, including reservations, to be divided so as to give to each man, woman, and child of the tribe an individual holding and, after a limited probation, confers citizenship upon the allottees, and makes them subject to the laws of the states or territories within which they live. Previous, however, to this final step intervened the reservation policy. The plan of forming Indian reservations was adopted from the necessity of bringing tribes under the more complete control of the Government and of confining them to definite limits for the better preservation of order, and aimed especially to restrict them to less territory in order that the whites might obtain the use of the residue. This was a most important step in the process of leading the natives to abandon the hunter stage and to depend for their subsistence on agriculture and home industries (see Reservations). The same policy was followed in Canada under both French and English rule, and to some extent by the colonies, and it was inaugurated by the United States in 1786. An incident indicative of one phase of the policy of the colonies in their dealings with and management of the Indians is that Indian captives were held as slaves in some of the colonies, while, under various pretexts, during a period in the history of South Carolina Indians were forced to submit to the same fate. In 1702 the Virginia assembly de creed that no Indian could hold office, be a capable witness, or hunt over patented land ; an Indian child was classed as a mulatto, and Indians, like slaves, were liable to be taken on execution for the payment of debt (Hening, Stat. Va., in, 224, 250-252, 298, 333, 447) . In 1644 the county courts of Massachusetts were invested with jurisdiction over the Indians in their respective districts (Rec. Mass., n, 134). Through the efforts of John Eliot and Thomas Mayhew many Indians in Massachusetts were brought under religious influence and gathered into towns on lands set apart for them by the General Court in accordance with the act of 1633 (Thomas and Homans, Laws of Colonial and State Govts., 9, 1812) . In 1655 the Indians were placed nominally under law and required to pay taxes.
Though the brief rule of the Dutch in New York was marked chiefly by an irregular and vacillating policy in their dealings with their Algonquian neighbors, they established a trading post at Albany in 1615 and entered into treaties with the Iroquois that were never broken. In 1 664 New Netherlands passed under English control, and the ill-advised English policy relative to the Indians of the northern districts prevailed until 1765, when, through the efforts of Sir William Johnson, a more satisfactory and practical method of dealing with the Indians, especially as to their territorial rights, was adopted.
Preeminent among the difficulties in the way of carrying out a just, humane, and consistent policy has been and is still the antagonism, born of the ignorance of both races of each other s mode of thought, social ideals and structure, and customs, together with persistent contention about land, one race defending its birthright, the other race ignoring native claims and regarding the territory as vacant. As a result a dual condition has existed on the one side, a theoretic Government plan, ideal and worthy; on the other, modifications of this plan in compliance with local ignorance and greed. The laws and regulations of the U. S. Government applying to the Indian tribes, with few exceptions, have been framed to conserve their rights. The wars, which have cost much blood and treasure, the enforced removals, the dishonest practices and degrading influences that stain the page of history have all come about in violation of these laws and of solemn compacts of the Government with native tribes. In spite of adverse circumstances the theoretic purpose of the Government policy has slowly made headway. On July 13, 1787, an ordinance was passed by the Continental Congress for the government of the territory of the United States N. w. of the Ohio r., in which article 3 provides: “The utmost good faith shall always be observed to ward the Indians; their land and property shall never be taken from them without their consent; and in their property, rights, and liberty they shall never be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity shall from time to time be made, for pre venting wrongs being done to them, and for preserving peace and friendship with them” (U. S. Stat., i, 52, 1854). This ordinance was confirmed by the act of Aug. 7, 1789 (ibid., 50). Acts organizing the following states and territories contain an article reaffirming the above ordinance: Alabama, Colorado, Dakota, Idaho, Illinois, Iowa, Kansas, Michigan, Minnesota, Mississippi, Montana, Nebraska. Nevada, Oregon, Wisconsin, and Wyoming.
The Republic of Texas in its need made solemn treaties which were after ward repudiated; consequently no tribe within its limits could claim tribal lands. When Texas was admitted into the Union it retained its laws and the control of its public lands. The Indian tribes appealed to the U. S. Government for protection, and for their relief they were removed to reservations set apart for them in what was then a part of the Indian Ter., and there the remnant of them are now, holding their lands in severalty, subject to the laws and regulations of Oklahoma.
In 1792 the Russians established a school at Kodiak, and in 1805 one at Sitka, the Government and the church cooperating in behalf of education for the mixed-bloods and natives. When the transfer of Alaska to the United States took place in 1867 the teachers were recalled to Russia and the schools were closed. Within a month the American residents voted to establish schools, but little was accomplished. After 10 years of persistent effort Dr John Eaton, Com missioner of Education, assisted by Dr Sheldon Jackson, secured the first Presidential appeal to Congress for civil government and schools for the “self-sup porting natives of the territory.” Four years later Congress passed the needed law in which the natives “right of occupancy” was recognized, the sale of liquor prohibited, and education ordered to be provided for the children of school age “without reference to race.” In the following year public schools were opened and some of the mission schools were turned over to the Government. The sufferings of the Eskimo consequent upon the decline of the whaling industry and the killing of the fur animals prompted the introduction of reindeer from Siberia in 1892. In the following year the Government made its first appropriation for the purchase of reindeer. Herds have been placed in charge of some of the schools, and Laplanders were imported to instruct the natives in the care and breeding of reindeer, which have very largely multiplied. Not only has a new vocation thus been opened to the natives, but a valuable means of support has been given to the rapidly increasing population of the territory (see Jackson, Rep. on Introd. of Reindeer, 1904).
On May 22, 1792, the following declaration was made in instructions given to Brig. Gen. Rufus Putnam, who was sent to negotiate with the lately hostile Indians near L. Erie: “That the United States are highly desirous of imparting to all the Indian tribes the blessings of civilization, as the only means of perpetuating them on the earth; that we are willing to be at the expense of teaching them to read and write, to plow and to sow in order to raise their own bread and meat with certainty, as the white people do” (Am. State Papers, i, 235). The first treaty providing for any form of education was made on Dec. 2, 1794, with the Oneida, Tuscarora, and Stockbridge Indians, who had faithfully adhered to the colonies during the Revolution. Two persons were to be employed to instruct them in the “arts of the miller and sawyer” (U. S. Stat., n, 48). The Committee on Indian Affairs reported to the House of Representatives on Jan. 22, 1818, in favor of increasing the number of trading posts and establishing schools on or near the frontier for the education of Indian children as measures that ” would be attended with beneficial effects both to the United States and to the Indian tribes” (Am. State Papers, ii, 151). In 1819 the first general appropriation ($10,000 a year) for Indian education was made. The maintenance of shops, supported, how ever, by tribal funds, was one of the means used for industrial training, and many tribes through treaty stipulations supported and still support the schools on their reservations. The money appropriated by the Government for Indian education from 1819 to 1873 was mainly expended with the cooperation of various missionary societies that had established missions. From 1873 to the present time the Government has maintained public schools for the Indians.
About 1875 the Indians began to modify the tribal form of government by depriving chiefs of power and transfer ring their authority to a representive council, limited in number. The movement met with opposition in some tribes, but was accepted in others as a means of countervailing undue conservatism and giving to the progressive element a voice in the management of tribal affairs. About the same time Congress passed a law prohibiting agents from distributing supplies and ammunition to able-bodied Indians, between 18 and 45 years of age, except after the performance of some service “for the benefit of themselves or the tribe, at a reasonable rate to be fixed by the agent in charge and to an amount equal in value to the supplies to be de livered.” The Secretary of the Interior might “by written order except any particular tribe or portion of tribe from the operation of this provision when he deems it proper or expedient” (U. S. Stat, xviii, 176, 449, 1875).
A court of Indian offenses was instituted in 1882 in order to familiarize the Indian with some of the methods which his white neighbors use in trying and punishing offenders. Though the practice of this court has been crude, it has yet assisted in preparing the Indian to conform to the general customs of the country. The judges are appointed by the Indian bureau to serve one year. No compensation is given. The agents all report faithful service on the part of the Indian judges.
The method of establishing reservations has not been uniform, some having been created by treaty, some by Executive order, and others by act of Congress; but those established by Executive order without an act of Congress were not held to be permanent before the general allotment act of 1887 was passed. The various Indian titles recognized by the Government are (1) the original right of occupancy, alienable to the Government only; (2) the title to reservations, which differs from the original title chiefly in the fact that it is derived from the United States. The tenure since the act of 1887 is the same as before, and the power to alienate or transfer is subject to the same limitation, the absolute title being in the Government. Another class of titles is (3) where reservations have been patented to Indian tribes, as those to the Cherokee, Choctaw, and Creek nations, or where grants made by Spain have been confirmed by treaty, as in the case of the Pueblo Indians of New Mexico. The right of the Indians on reservations to sell timber or to grant mining privileges has been restricted, though it is now being gradually extended.
The policy of the United States in dealing with the Indians has, as a rule, been humane and just. The chief exceptions are: First, that arid or semi-arid lands have been selected for some of the reservations, defeating the effort to change some tribes from the hunter to the agricultural stage and entailing misery and death; second, that the pressure brought to bear by white settlers to eject the Indians from their favorite sections, where they were promised permanent homes, has too often been successful. See Agency system, Dutch influence, Education, English influence, French influence, German influence, Land tenure, Missions, Office of Indian Affairs, Reservations, Russian influence, Spanish influence. (A. C. P.)