A Century of Dishonor/Chapter 1
A CENTURY OF DISHONOR
CHAPTER I
INTRODUCTORY
The question of the honorableness of the United States' dealings with the Indians turns largely on a much disputed and little understood point. What was the nature of the Indians' right to the country in which they were living when the continent of North America was discovered? Between the theory of some sentimentalists that the Indians were the real owners of the soil, and the theory of some politicians that they had no right of ownership whatever in it, there are innumerable grades and confusions of opinion. The only authority on the point must be the view and usage as accepted by the great discovering Powers at the time of discovery, and afterward in their disposition of the lands discovered.
Fortunately, an honest examination of these points leaves no doubt on the matter.
England, France, Spain, little Portugal—all quarrelling fiercely, and fighting with each other for the biggest share in the new continent—each claiming “sovereignty of the soil” by right of priority of discovery—all recognized the Indians' “right of occupancy” as a right; a right alienable in but two ways, either by purchase or by conquest.
All their discussions as to boundaries, from 1603 down to 1776, recognized this right and this principle. They reiterated, firstly, that discoverers had the right of sovereignty—a right in so far absolute that the discoverer was empowered by it not only to take possession of, but to grant, sell, and convey lands still occupied by Indians—and that for any nation to attempt to take possession of, grant, sell, or convey any such Indian-occupied lands while said lands were claimed by other nations under the right of discovery, was an infringement of rights, and just occasion of war; secondly, that all this granting, selling, conveying was to be understood to be “subject to the Indians' right of occupancy,” which remained to be extinguished either through further purchase or through conquest by the grantee or purchaser.
Peters, in his preface to the seventh volume of the “United States Statutes at Large,” says, “The history of America, from its discovery to the present day, proves the universal recognition of these principles.”
Each discovering Power might regulate the relations between herself and the Indians; but as to the existence of the Indians' “right of occupancy,” there was absolute unanimity among them. That there should have been unanimity regarding any one thing between them, is remarkable. It is impossible for us to realize what a sudden invitation to greed and discord lay in this fair, beautiful, unclaimed continent—eight millions of square miles of land—more than twice the size of all Europe itself. What a lure to-day would such another new continent prove! The fighting over it would be as fierce now as the fighting was then, and the “right of occupancy” of the natives would stand small chance of such unanimous recognition as the four Great Powers then justly gave it.
Of the fairness of holding that ultimate sovereignty belonged to the civilized discoverer, as against the savage barbarian, there is no manner nor ground of doubt. To question this is feeble sentimentalism. But to affirm and uphold this is not in any wise to overlook the lesser right which remained; as good, of its kind, and to its extent, as was the greater right to which, in the just nature of things, it was bound to give way.
It being clear, then, that the Indians' “right of occupancy” was a right recognized by all the great discovering Powers, acted upon by them in all their dispositions of lands here discovered, it remains next to inquire whether the United States Government, on taking its place among the nations, also recognized or accepted this Indian “right of occupancy” as an actual right. Upon this point, also, there is no doubt.
“By the treaty which concluded the War of our Revolution, Great Britain relinquished all claims not only to the government, but to the proprietary and territorial rights of the United States whose boundaries were fixed in the second Article. By this treaty the powers of the government and the right to soil which had previously been in Great Britain passed definitely to these States. We had before taken possession of them by declaring independence, but neither the declaration of independence nor the treaty confirming it could give us more than that which we before possessed, or to which Great Britain was before entitled. It has never been doubted that either the United States or the several States had a clear title to all the lands within the boundary-lines described in the treaty, subject only to the Indian right of occupancy, and that the exclusive right to extinguish that right was vested in that government which might constitutionally exercise it.”[1]
“Subject to the Indian right of occupancy.” It is noticeable how perpetually this phrase reappears. In their desire to define, assert, and enforce the greater right, the “right of sovereignty,” the makers, interpreters, and recorders of law did not realize, probably, how clearly and equally they were defining, asserting, and enforcing the lesser right, the “right of occupancy.”
Probably they did not so much as dream that a time would come when even this lesser right—this least of all rights, it would seem, which could be claimed by, or conceded to, an aboriginal inhabitant of a country, however savage—would be practically denied to our Indians. But if they had foreseen such a time, they could hardly have left more explicit testimony to meet the exigency.
“The United States have unequivocally acceded to that great and broad rule by which its civilized inhabitants now hold this country. They hold and assert in themselves the title by which it was acquired. They maintain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or conquest, and gave also a right to such a degree of sovereignty as the circumstances of the people would allow them to exercise.
“The power now possessed by the United States to grant lands resided, while we were colonies, in the Crown or its grantees. The validity of the titles given by either has never been questioned in our courts. It has been exercised uniformly over territories in possession of the Indians. The existence of this power must negative the existence of any right which may conflict with and control it. An absolute title to lands cannot exist at the same time in different persons or in different governments. An absolute must be an exclusive title, or at least a title which excludes all others not compatible with it. All our institutions recognize the absolute title of the Crown, subject only to the Indian right of occupancy, and recognize the absolute title of the Crown to extinguish the right. This is incompatible with an absolute and complete title in the Indians.”[2]
Certainly. But it is also “incompatible with an absolute and perfect title” in the white man! Here again, in their desire to define and enforce the greater right, by making it so clear that it included the lessor one, they equally define and enforce the lesser right as a thing to be included. The word “subject” is a strong participle when it is used legally. Provisions are made in wills, “subject to” a widow's right of dower, for instance, and the provisions cannot be carried out without the consent of the person to whom they are thus declared to be “subject.” A title which is pronounced to be “subject to” anything or anybody cannot be said to be absolute till that subjection is removed.
There have been some definitions and limitations by high legal authority of the methods in which this Indian “right of occupancy” might be extinguished even by conquest.
“The title by conquest is acquired and maintained by force. The conqueror prescribes its limits. Humanity, however, acting on public opinion, has established as a general rule that the conquered shall not be wantonly oppressed, and that their condition shall remain as eligible as is compatible with the objects of the conquest. Usually they are incorporated with the victorious nation, and become subjects or citizens of the government with which they are connected. * * * When this incorporation is practicable. humanity demands, and a wise policy requires, that the rights of the conquered to property should remain unimpaired; that the new subjects should be governed as equitably as the old. * * * When the conquest is complete, and the conquered inhabitants can be blended with the conquerors, or safely governed as a distinct people, public opinion, which not even the conqueror can disregard, imposes these restraints upon him, and he cannot neglect them without injury to his fame, and hazard to his power.”[3]
In the sadly famous case of the removal of the Cherokee tribe from Georgia, it is recorded as the opinion of our Supreme Court that “the Indians are acknowledged to have an unquestionable, and heretofore unquestioned, right to the lands they occupy until that right shall be extinguished by a voluntary cession to the Government.” * * * “The Indian nations have always been considered as distinct independent political communities, retaining their original natural rights as the undisputed possessors of the soil, from time immemorial, with the single exception of that imposed by irresistible power, which excluded them from intercourse with any other European potentate than the first discoverer of the coast of the particular region claimed; and this was a restriction which those European potentates imposed on themselves as well as on the Indians. The very term ‘nation,’ so generally applied to them, means ‘a people distinct from others.’ The Constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, has adopted and sanctioned the previous treaties with the Indian nations, and consequently admits their rank among those powers who are capable of making treaties. The words ‘treaty’ and ‘nation’ are words of our own language, selected in our diplomatic and legislative proceedings by ourselves, having each a definite and well understood meaning, We have applied them to Indians as we have applied them to other nations of the earth. They are applied to all in the same sense.”[4]
In another decision of the Supreme Court we find still greater emphasis put upon the Indian right of occupancy, by stating it as a right, the observance of which was stipulated for in treaties between the United States and other nations.
“When the United States acquired and took possession of the Floridas, the treaties which had been made with the Indian tribes before the acquisition of the territory by Spain and Great Britain remained in force over all the ceded territory, as the law which regulated the relations with all the Indians who were parties to them, and were binding on the United States by the obligation they had assumed by the Louisiana treaty as a supreme law of the land.
“The treaties with Spain and England before the acquisition of Florida by the United States, which guaranteed to the Seminole Indians their lands, according to the right of property with which they possessed them, were adopted by the United States, who thus became the protectors of all the rights they (the Indians) had previously enjoyed, or could of right enjoy, under Great Britain or Spain, as individuals or nations, by any treaty to which the United States thus became parties in 1803. * * *
“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 government representing the king.” * * *
The laws made it necessary, when the Indians sold their lands, to have the deeds presented to the governor for confirmation. The sales by the Indians transferred the kind of right which they possessed; the ratification of the sale by the governor must be regarded as a relinquishment of the title of the Crown to the purchaser, and no instance is known of refusal of permission to sell, or of the rejection of an Indian sale.[5]
“The colonial charters, a great portion of the individual grants by the proprietary and royal governments, and a still greater portion by the States of the Union after the Revolution, were made for lands within the Indian hunting-grounds. North Carolina and Virginia, to a great extent, paid their officers and soldiers of the Revolutionary War by such grants, and extinguished the arrears due the army by similar means. It was one of the great resources which sustained the war, not only by those States but by other States. The ultimate fee, encumbered with the right of occupancy, was in the Crown previous to the Revolution, and in the States afterward, and subject to grant. This right of occupancy was protected by the political power, and respected by the courts until extinguished.” * * * “So the Supreme Court and the State courts have uniformly held.”[6]
President Adams, in his Message of 1828, thus describes the policy of the United States toward the Indians at that time:
“At the establishment of the Federal Government the principle was adopted of considering them as foreign and independent powers, and also as proprietors of lands. As independent powers, we, negotiated with them by treaties; as proprietors, we purchased of them all the land which we could prevail on them to sell; as brethren of the human race, rude and ignorant, we endeavored to bring them to the knowledge of religion and letters.”
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.”
Grotius draws the distinction between the law of nature and the law of nations thus: “When several persons at different times and in various places maintain the same thing as certain, such coincidence of sentiment must be attributed to some general cause. Now, in the questions before us, that cause must necessarily be one or the other of these two—either a just consequence drawn from natural principles, or a universal consent; the former discovers to us the law of nature, and the latter the law of nations.”
Vattel defines the “necessary law of nations” to be the “application of the law of nature to nations.” He says: “It is ‘necessary,’ because nations are absolutely bound to observe it. This law contains the precepts prescribed by the law of nature to States, on whom that law is not less obligatory than on individuals; since States are composed of men, their resolutions are taken by men, and the law of nations is binding on all men, under whatever relation they act. This is the law which Grotius, and those who follow him, call the Internal Law of Nations, on account of its being obligatory on nations in the point of conscience.”
Vattel says again: “Nations being composed of men naturally free and independent, and who before the establishment of civil societies lived together in the state of nature, nations or sovereign States are to be considered as so many free persons living together in the state of nature.”
And again: “Since men are naturally equal, and a perfect equality prevails in their right and obligations as equally proceeding from nature, nations composed of men, and considered as so many free persons living together in the state of nature, are naturally equal, and inherit from nature the same obligations and rights. Power or weakness does not in this respect produce any difference. A dwarf is as mach a man as a giant; a small republic no less a sovereign State than the most powerful kingdom.”
In these two last sentences is touched the key-note of the true law of nations, as well as of the true law for individuals—justice. There is among some of the later writers on jurisprudence a certain fashion of condescending speech in their quotations from Vattel. As years have gone on, and States have grown more powerful, and their relations more complicated by reason of selfishness and riches, less and less has been said about the law of nature as a component and unalterable part of the law of nations. Fine subtleties of definition, of limitation have been attempted, Hundreds of pages are full of apparently learned discriminations between the parts of that law which are based on the law of nature and the parts which are based on the consent and usage of nations. But the two cannot be separated. No amount of legality of phrase can do away with the inalienable truth underlying it. Wheaton and President Woolsey to-day say, in effect, the same thing which Grotius said in 1615, and Vattel in 1758.
Says Wheaton: “International law, as understood among civilized nations, may be defined as consisting of those rules of conduct which reason deduces as consonant to justice from the nature of the society existing among independent nations.”
President Woolsey says: “International law, in a wide and abstract sense, would embrace those rules of intercourse between nations which are deduced from their rights and moral claims; or, in other words, it is the expression of the jural and moral relations of States to one another.
“If international law were not made up of rules for which reasons could be given satisfactory to man’s intellectual and moral nature, if it were not built on principles of right, it would be even less of a science than is the code which governs the actions of polite society.”
It is evident, therefore, that the one fundamental right, of which the “law of nations” is at once the expression and the guardian, is the right of every nation to just treatment from other nations, the right of even the smallest republic equally with “the most powerful kingdom.” Just as the one fundamental right, of which civil law is the expression and guardian, is the right of each individual to just treatment from every other individual: a right indefeasible, inalienable, in nowise lessened by weakness or strengthened by power—as majestic in the person of “the dwarf” as in that of “the giant.”
Of justice, Vattel says: “Justice is the basis of all society, the sure bond of all commerce. * * *
“All nations are under a strict obligation to cultivate justice toward each other, to observe it scrupulously and carefully, to abstain from anything that may violate it. * * *
“The right of refusing to submit to injustice, of resisting injustice by force if necessary, is part of the law of nature, and as such recognized by the law of nations.
“In vain would Nature give us a right to refuse submitting to injustice, in vain would she oblige others to be just in their dealings with us, if we could not lawfully make use of force when they refused to discharge this duty. The just would lie at the mercy of avarice and injustice, and all their rights would soon become useless. From the foregoing right arise, as two distinct branches, first, the right of a just defence, which belongs to every nation, or the right of making war against whoever attacks her and her rights; and this is the foundation of defensive war. Secondly, the right to obtain justice by force, if we cannot obtain it otherwise, or to pursue our right by force of arms. This is the foundation of offensive war.”
Justice is pledged by men to each other by means of promises or contracts; what promises and contracts are between men, treaties are between nations.
President Woolsey says: “A contract is one of the highest acts of human free-will: it is the will binding itself in regard to the future, and surrendering its right to change a certain expressed intention, so that it becomes, morally and jurally, a wrong to act otherwise.
“National contracts are even more solemn and sacred than private ones, on account of the great interests involved; of the deliberateness with which the obligations are assumed; of the permanence and generality of the obligations, measured by the national life, and including thousands of particular cases; and of each nation’s calling, under God, to be a teacher of right to all, within and without its borders.”
Vattel says: “It is a settled point in natural law that he who has made a promise to any one has conferred upon him a real right to require the thing promised; and, consequently, that the breach of a perfect promise is a violation of another person's right, and as evidently an act of injustice as it would be to rob a man of his property. * * *
“There would no longer be any security, no longer any commerce between mankind, if they did not think themselves obliged to keep faith with each other, and to perform their promises.”
It is evident, that the whole weight of the recognized and accepted law of nations is thrown on the side of justice between nation and nation, and is the recognized and accepted standard of the obligation involved in compacts between nation and nation.
We must look, then, among the accepted declarations of the law of nations for the just and incontrovertible measure of the shame of breaking national compacts, and of the wickedness of the nations that dare to do it.
We shall go back to the earliest days of the world, and find no dissent from, no qualification of the verdict of the infamy of such acts. Livy says of leagues: “Leagues are such agreements as are made by the command of the supreme power, and whereby the whole nation is made liable to the wrath of God if they infringe it.”
Grotius opens his “Admonition,” in conclusion of the third book of his famous “Rights of War and Peace,” as follows: “ ‘For it is by faith,’ saith Cicero, ‘that not commonwealths only, but that grand society of nations is maintained.’ ‘Take away this,’ saith Aristotle, ‘and all human commerce fails.’ It is, therefore, an execrable thing to break faith on which so many lives depend. ‘It is,’ saith Seneca, ‘the best ornament wherewith God hath beautified the rational soul; the strongest support of human society, which ought so much the more inviolably to be kept by sovereign princes by how much they may sin with greater license and impunity than other men. Wherefore take away faith, and men are more fierce and cruel than savage beasts, whose rage all men do horribly dread. Justice, indeed, in all other of her parts hath something that is obscure; but that whereunto we engage our faith is of itself clear and evident; yea, and to this very end do men pawn their faith, that in their negotiations one with another all doubts may be taken away, and every scruple removed. How much more, then, doth it concern kings to keep their faith inviolate, as well for conscience’ sake as in regard to their honor and reputation, wherein consists the authority of a kingdom.’ ”
Vattel says: “Treaties are no better than empty words, if nations do not consider them as respectable engagements, as rules which are to be inviolably observed by sovereigns, and held sacred throughout the whole earth.
“The faith of treaties—that firm and sincere resolution, that invariable constancy in fulfilling our engagements, of which we make profession in a treaty—is therefore to be held sacred and inviolable between the nations of the earth, whose safety and repose it secures; and if mankind be not wilfully deficient in their duty to themselves, infamy must ever be the portion of him who violates his faith. * * *
“He who violates his treaties, violates at the same time the law of nations, for he disregards the faith of treaties, that faith which the law of nations declares sacred; and, so far as dependent on him, he renders it vain and ineffectual. Doubly guilty, he does an injury to his ally, and he does an injury to all nations, and inflicts a wound on the great society of mankind. * * *
“On the observance and execution of treaties,” said a respectable sovereign, “depends all the security which princes and States have with respect to each other, and no dependence could henceforward be placed in future conventions if the existing ones were not to be observed.”
It is sometimes said, by those seeking to defend, or at least palliate, the United States Government's repeated disregard of its treaties with the Indians, that no Congress can be held responsible for the acts of the Congress preceding it, or can bind the Congress following it; or, in other words, that each Congress may, if it chooses, undo all that has been done by previous Congresses. However true this may be of some legislative acts, it is clearly not true, according to the principles of international law, of treaties.
On this point Vattel says: “Since public treaties, even those of a personal nature, concluded by a king, or by another sovereign who is invested with sufficient power, are treaties of State, and obligatory on the whole nation, real treaties, which were intended to subsist independently of the person who has concluded them, are undoubtedly binding on his successors; and the obligation which such treaties impose on the State passes successively to all her rulers as soon as they assume the public authority. The case is the same with respect to the rights acquired by those treaties. They are acquired for the State, and successively pass to her conductors.”
Von Martens says: “Treaties, properly so called, are either personal or real. They are personal when their continuation in force depends on the person of the sovereign or his family, with whom they have been contracted. They are real when their duration depends on the State, independently of the person who contracts. Consequently, all treaties between republics must be real. All treaties made for a time specified or forever are real. * * *
“This division is of the greatest importance, because real treaties never cease to be obligatory, except in cases where all treaties become invalid. Every successor to the sovereignty, in virtue of whatever title he may succeed, is obliged to observe them without their being renewed at his accession.”
Wheaton says: “They (treaties) continue to bind the State, whatever intervening changes may take place in its internal constitution or in the persons of its rulers, The State continues the same, notwithstanding such change, and consequently the treaty relating to national objects remains in force so long as the nation exists as an independent State.”
There is no disagreement among authorities on this point. It is also said by some, seeking to defend or palliate the United States Government’s continuous violations of its treaties with the Indians, that the practice of all nations has been and is to abrogate a treaty whenever it saw good reason for doing so. This is true; but the treaties have been done away with in one of two ways, either by a mutual and peaceful agreement to that effect between the parties who had made it—the treaty being considered in force until the consent of both parties to its abrogation had been given—or by a distinet avowal on the part of one nation of its intention no longer to abide by it, and to take, therefore, its chances of being made war upon in consequence. Neither of these courses has been pursued by the United States Government in its treaty-breaking with the Indians.
Vattel says, on the dissolution of treaties: “Treaties may be dissolved by mutual consent at the free-will of the contracting powers.”
Grotius says: “If either party violate the League, the other party is freed; because each Article of the League hath the form and virtue of a condition.”
Kent says: “The violation of any one article of a treaty is a violation of the whole treaty. * * *
“It is a principle of universal jurisprudence that a compact cannot be rescinded by one party only, if the other party does not consent to rescind it, and does no act to destroy it. * * *
“To recommence a war by breach of the articles of peace, is deemed much more odious than to provoke a war by some new demand or aggression; for the latter is simply injustice, bat in the former case the party is guilty both of perfidy and injustice.”
It is also said, with unanswerable irrelevancy, by some who seek to defend or palliate the United States Government’s continuous violation of its treaties with the Indians, that it was, in the first place, absurd to make treaties with them at all, to consider them in any sense as treaty-making powers or nations. The logic of this assertion, made as a justification for the breaking of several hundred treaties, concluded at different times during the last hundred years, and broken as fast as concluded, seems almost equal to that of the celebrated defence in the case of the kettle, which was cracked when it was lent, whole when returned, and, in fact, was never borrowed at all. It would be a waste of words to reason with minds that can see in this position any shelter for the United States Government against the accusation of perfidy in its treaty relations with the Indians.
The statement is undoubtedly a true one, that the Indians, having been placed in the anomalous position as tribes, of “domestic dependent nations,” and as individuals, in the still more anomalous position of adult “wards,” have not legally possessed the treaty-making power. Our right to put them, or to consider them to be in those anomalous positions, might be successfully disputed; but they, helpless, having accepted such positions, did, no doubt, thereby lose their right to be treated with as nations. Nevertheless, that is neither here nor there now: as soon as our Government was established, it proceeded to treat with them as nations by name and designation, and with precisely the same forms and ratifications that it used in treating with other nations; and it continued to treat with them as nations by name and designation, and with continually increasing solemnity of asseveration of good intent and good faith, for nearly a century. The robbery, the cruelty which were done under the cloak of this hundred years of treaty-making and treaty-breaking, are greater than can be told. Neither mountains nor deserts stayed them; it took two seas to set their bounds.
In 1871, Congress, either ashamed of making treaties only to break them, or grudging the time, money, and paper it wasted, passed an act to the effect that no Indian tribe should hereafter be considered as a foreign nation with whom the United States might contract by treaty. There seems to have been at the time, in the minds of the men who passed this act, a certain shadowy sense of some obligation being involved in treaties; for they added to the act a proviso that it should not be construed as invalidating any treaties already made. But this sense of obligation must have been as short-lived as shadowy, and could have had no element of shame in it, since they forthwith proceeded, unabashed, to negotiate still more treaties with Indians, and break them; for instance, the so-called “Brunot Treaty” with the Ute Indians in Colorado, and one with the Crow Indians in Montana—both made in the summer of 1873. They were called at the time “conventions” or “agreements,” and not “treaties;” but the difference is only in name.
They stated, in a succession of numbered articles, promises of payment of moneys, and surrenders and cessions of land, by both parties; were to be ratified by Congress before taking effect; and were understood by the Indians agreeing to them to be as binding as if they had been called treaties. The fact that no man’s sense of justice openly revolted against such subterfuges, under the name of agreements, is only to be explained by the deterioration of the sense of honor in the nation. In the days of Grotius there were men who failed to see dishonor in a trick if profit came of it, and of such he wrote in words whose truth might sting to-day as, no doubt, it stung then:
“Whereas there are many that think it superfluous to require that justice from a free people or their governors which they exact daily from private men, the ground of this error is this: because these men respect nothing in the law but the profit that ariseth from it, which in private persons, being single and unable to defend themselves, is plain and evident; but for great cities, that seem to have within themselves all things necessary for their own well-being, it doth not so plainly appear that they have any need of that virtue called justice which respects strangers.”
These extracts from unquestioned authorities on international law prove that we may hold nations to standards of justice and good faith as we hold men; that the standards are the same in each case; and that a nation that steals and lies and breaks promises, will no more be respected or unpunished than a man who steals and lies and breaks promises. It is possible to go still farther than this, and to show that a nation habitually guilty of such conduct might properly be dealt with therefor by other nations, by nations in nowise suffering on account of her bad faith, except as all nations suffer when the interests of human society are injured.
“The interest of human society,” says Vattel, “would authorize all the other nations to form a confederacy, in order to humble and chastise the delinquent.” * * * When a nation “regards no right as sacred, the safety of the human race requires that she should be repressed. To form and support an unjust pretension is not only doing an injury to the party whose interests are affected by that pretension; but to despise justice in general is doing an injury to all nations.”
The history of the United States Government's repeated violations of faith with the Indians thus convicts us, as a nation, not only of having outraged the principles of justice, which are the basis of international law; and of having laid ourselves open to the accusation of both cruelty and perfidy; but of having made ourselves liable to all punishments which follow upon such sins—to arbitrary punishment at the hands of any civilized nation who might see fit to call us to account, and to that more certain natural punishment which, sooner or later, as surely comes from evil-doing as harvests come from sown seed.
To prove all this it is only necessary to study the history of any one of the Indian tribes. I propose to give in the following chapters merely outline sketches of the history of a few of them, not entering more into details than is necessary to show the repeated broken faith of the United States Government toward them. A full history of the wrongs they have suffered at the hands of the authorities, military and civil, and also of the citizens of this country, it would take years to write and volumes to hold.
There is but one hope of righting this wrong. It lies in appeal to the heart and the conscience of the American people. What the people demand, Congress will do. It has been—to our shame be it spoken—at the demand of part of the people that all these wrongs have been committed, these treaties broken, these robberies done, by the Government.
So long as there remains on our frontier one square mile of land occupied by a weak and helpless owner, there will be a strong and unscrupulous frontiersman ready to seize it, and a weak and unscrupulous politician, who can be hired for a vote or for money, to back him.
The only thing that can stay this is a mighty outspoken sentiment and purpose of the great body of the people. Right sentiment and right purpose in a Senator here and there, and a Representative here and there, are little more than straws which make momentary eddies, but do not obstruct the tide. The precedents of a century's unhindered and profitable robbery have mounted up into a very Gibraltar of defence and shelter to those who care for nothing but safety and gain. That such precedents should be held, and openly avowed as standards, is only one more infamy added to the list. Were such logic employed in the case of an individual man, how quick would all men see its enormity. Suppose that a man had had the misfortune to be born into a family whose name had been blackened by generations of criminals; that his father, his grandfather, and his great-grandfather before them had lived in prisons, and died on scaffolds, should that man say in his soul, “Go to! What is the use? I also will commit robbery and murder, and get the same gain by it which my family must have done?” Or shall he say in his soul, “God help me! I will do what may be within the power of one man, and the compass of one generation, to atone for the wickedness, and to make clean the name of my dishonored house!”
What an opportunity for the Congress of 1880 to cover itself with a lustre of glory, as the first to cut short our nation's record of cruelties and perjuries! the first to attempt to redeem the name of the United States from the stain of a century of dishonor!