INDIAN TERRITORY-INDIAN TREATIES so to the best advantage. With the loss of their monopolistic character, and the efforts of the Government to prevent the Indians from wasting their little means, the trading posts have become so much less lucrative that the demand for licenses has fallen off; and trade in the Indian country, barring the prohibition on intoxicants, is now substantially as free as elsewhere. See PUBLIC LANDS; and under INDIAN. References: C. C. Royce, "Indian Land Cessions to the U. S." in Bureau of American Ethnology, Report, 1899; S. K. Humphrey, The Indian Dispossessed (1905); Charles M. Harvey, "The Red Man's Last Roll-Call" in Atlantic Monthly, XCVII, March, 1906; J. B. Thayer, "A People Without Law" in ibid, Oct.Nov., 1891; "Handbook of Am. Indians" in Bureau of Am. Ethnology, Bulletin No. 30, 1910, II; Commissioner of Indian Affairs, Annual Report, 1908. FRANCIS E. LEUPP. power on legislative acts. The legislative function was vested in a two chamber legislature, the upper house being known as the senate. The judicial department consisted of a "supreme court and such circuit and inferior courts as the national council may from time to time ordain and establish." The Choctaw constitution of 1842 differed from that of the Cherokees in the one noticeable particular of a plural executive consisting of four chiefs, each chosen from one of the four governmental districts. The Chickasaws, who had previously attached themselves to the Choctaws for governmental purposes, withdrew in the year 1857, and adopted a constitution of their own. The Indian governments, as a whole, operated quietly and efficiently. Peace and order were preserved; human life was safe, and property rights were respected. The Federal Government of th United States had removed all white settlers from the territory at the time of the original grant, and evidently intended to keep faith with the Indians and prevent intrusion on the part of the whites. The coming of the railroads in the Indian Territory (1870) made further exclusion of the white settler impossible, and by 1890 the whites outnumbered the Indians. In 1868, the population, according to the Peace Commission figures, was 47,396; in 1907 by the special statehood census, 681,115, of whom Indians numbered 52,482, negroes 36,900 and whites 302,680. See INDIAN POLICY; INDIAN RESERVATIONS; OKLAHOMA. INDIAN TERRITORY. Title to the soil of the Indian Territory was acquired by the United States through the Louisiana Purchase. This section was originally intended for an Indian commonwealth, as the Federal Government, soon after the War of 1812, adopted the policy of transferring the civilized Indians from the southern states to the unsettled lands west of the Mississippi. This plan was consummated by a series of treaties from 1820 to 1840, the most important of these being with the Choctaws in 1820 and with the Cherokees in 1828 and 1833. These treaties defined the western boundary of Arkansas and the north- References: A. H. Abel, "Proposals for an ern limits of the new lands of the Cherokees; Indian State, 1778-1878" in Am. Hist. Assoc., thus virtually establishing the outlines of the Annual Report, 1907, I, 89-102, "Hist. of present state of Oklahoma. The Indians as- Events Resulting in Indian Consolidation West signed to this tract were known as the Five of the Mississippi" in ibid, 1906, I, 235-450; Civilized Tribes, and included the Cherokees, Commissioner of Indian Affairs, Reports Choctaws, Chickasaws, Creeks, and Seminoles. (1835-1912); R. J. Hinton, "Indian Territory" These tribes were guaranteed the privilege in Review of Reviews, XXIII (1901), 451; of local self-government. The Cherokees had | Constitution and Laws of the Cherokee Nation adopted a constitution while in Georgia. This (1875 and 1883); Constitution and Laws of they remodeled and improved in 1839, and their plan included three distinct departments of government, executive, legislative, and judicial. The executive department centered in the principal chief, who saw that the laws were enforced, was the representative of the government in external affairs and exercised a veto the Chickasaw Nation (1899); Laws of the INDIAN TREATIES Policy. For more than three-quarters of a century the Government of the United States conducted its intercourse with the Indian tribes by means of treaties. From the colonies was inherited the habit of dealing with the tribes as independent nations through their chiefs or "kings," and the stilted phraseology of the treaties is in keeping with this fiction. An act of Congress of March 1, 1793, provided that no purchase or grant of land should be valid unless made by a "treaty or convention entered into pursuant of the Constitution," and as the Constitution vests the treaty-making power in the President (Art. II, Sec. ii, ¶ 2) subject INDIAN WARS-INDIANS, ALLOTMENT OF LAND TO to ratification by the Senate, the practice in the case of Indian tribes became as well settled as in the case of foreign nations. Besides ratification by the Senate, legislation by Congress was necessary in most instances to carry a treaty into execution. That the incongruity of a sovereign power's negotiating diplomatically, on an even footing, with a subject people, was realized in spite of a general disposition to ignore it, was obvious from the growing impatience of Congress with the hampering provisions in some of the treaties, and from their very liberal interpretation wherever their language was dubious. Negotiations. Indeed, an Indian treaty was not easy to construe so as to satisfy both parties, owing to the way such instruments were framed. The negotiations were usually conducted through unlettered interpreters, with limited resources of expression; the English and the Indian tongues were so unlike in structure and in their capacity for communicating shades of meaning, that often it was impossible to make the Indians differentiate between a direct and a contingent statement, for example; their simple environment had left their vocabularies lacking in terms of description familiar enough in a more complex civilization, while the whites were puzzled by certain natural boundaries known from earliest times by the Indians; and the climax of difficulty was capped when a suspicion of venality attached to the interpreter, on whose good faith and patience the essential success of every such enterprise depended. Hence it is reasonable to suppose that more than one historic indictment of the Government for breaches of its covenants to the Indians may have for its real basis nothing worse than mutual misunderstandings between the negotiators. treaty regarding Indian land; and when the Supreme Court of the United States, on Jan. 5, 1903, declared that "the power exists [in Congress] to abrogate the provisions of an Indian treaty," and that "its action is conclusive upon the courts," this much-vexed question was settled for all time. Number of Treaties.-Between 1778 and the adoption of the Constitution, nine treaties with Indian tribes were negotiated, and before the passage of the act prohibiting treaties 372 more. Since the abolition of treaties, less than a hundred agreements have been made. Some of the most recent are very informal in character, and designed chiefly for the information of the Indians as to the intentions of Congress, which now does by direct legislation much of the business which once was assumed to require preliminary negotiation. Provisions of Treaties.-Apart from land cessions, the subjects oftenest dealt with in the old treaties were the establishment of trust funds, and provisions for the subsistence or education of the Indians concerned. Not a few bound the Government to the support of a tribe till its members were able to support themselves-a vague, and later vexatious, proposition; treaties with the Pawnees pledged the payment to them of $500 annually "for iron and steel and other necessary articles for shops," and the "pay of two blacksmiths, one of whom is to be a tin and gunsmith, and compensation for two strikers or apprentices;" the Pottawatomies had a permanent promise of a supply of salt, and a periodical payment of money in lieu of tobacco, iron and steel; the Six Nations of New York had a permanent annuity of $4,500 in clothing, which, in the case of one prolific branch, recently dwindled to a per capita stipend of a trifle more than 40 cents. Efforts have been made with varying success, to induce the tribes holding these antiquated claims to let them be appraised in cash, capitalized, and the principal paid over, with a view to wiping the matter off the books. The treaty system has borne almost as serious fruits for evil as the reservation system (see INDIAN RESERVATIONS), retarding the advancement of the Indian beneficiaries by keeping them always in a state of unrest, diverting their attention from legitimate measures for self-support, and exposing them to perpetual siege by unscrupulous claim-agents. Treaties Subject to Acts of Congress.-In pursuance of an act of March 3, 1871, treaties with the Indians gave way to mere agreements, and with these Congress felt free to take some rather radical liberties in the laws passed ostensibly to carry them into effect. A crisis was reached when suit was brought in the name of Lone Wolf, a Kiowa Indian of prominence, to enjoin the Secretary of the Interior from disposing of the surplus lands on the Kiowa, Comanche and Apache reservation in Oklahoma without the consent of the Indians. The petitioners asserted that in a treaty of 1868 the Government had promised not to regard as valid any cession of lands except by consent of three-quarters of the male members of the tribes concerned; that the agreement of 1892 under which the Government had undertaken to throw open the reservation had not been signed by the requisite three-fourths; and that even this putative agreement had been violently distorted in the legislation which purported to make it operative. No case could have been made up to present a more striking array of INDIANS, ALLOTMENT OF LAND TO. See issues wherewith to test the legal force of a ALLOTMENT OF LAND TO INDIANS. See PUBLIC LANDS; TREATIES OF THE UNITED References: C. T. Kappler (compiler) Indian INDIAN WARS. See WARS OF THE UNITED STATES. INDIANS, CONSTITUTIONAL AND LEGAL STATUS OF INDIANS, CONSTITUTIONAL AND LEGAL STATUS OF In America the principle was revived, and included not only the right to hold or to grant the land, but to authorize grantees to set up local governments, which developed into colonies (see COLONIZATION BY GREAT BRITAIN IN AMERICA). The Crown, however, from the beginning recognized that the Indians who were already on the ground had a right of occupancy, which must somehow be extinguished before any grantee could have undis Original Principles of Colonizing Powers. The relations of European powers to the inhabitants of America have proceeded upon two different and sometimes conflicting points of view: (1) that the aborigines made up nations similar to the Asiatic nations which were approached about the same time; (2) that they were made up of individuals having no political organization which Europe was bound to regard. The Spaniards looked upon the people of Cuba as individuals and quickly extermina-puted possession. This accorded nearly enough ted them; and when they reached the two crude nations of Mexico and Peru, they simply overthrew the governments, and by right of conquest seized the public property and as much of the private property as they thought desirable. Thereafter, they treated the Indians as subjects, made and enforced laws upon them, and accepted them as a kind of inferior citi zen. In that status they remained till the formation of the present Latin American states, when such Indians as have adopted the fixed residence and customs of civilization, in many cases became full citizens. The French in North America adopted a very similar system, destroying some tribes and incorporating others into their body politic. Neither whites nor civilized Indians had a share in the government; and both were subject to the same general system of law. The English came to North America in comparatively small bodies and found the region occupied by warlike tribes, and from the beginning, they adopted the principle that the unit was the tribe and not the individual, unless the Indian threw off his tribal allegiance and settled down as a white man might do. This is substantially the principle on which the United States bases its relations with the Indians at the present day. English Theory of Indian Land-Holding. Under the Spanish system, the Indians were not looked upon as masters of the soil except so far as the Government might recognize individual holdings; under the English system, the land was recognized as the property of the tribe, but as property only in a limited sense. The British claimed all the territory watered by rivers falling into coasts discovered by or otherwise acquired by the English, as the property of the king of England. This idea went back to the old Norman principle that all the land in the kingdom was either occupied directly by the sovereign or was by him granted in fief to certain of his subjects. At the time of colonization, this principle was almost extinct in England, except for the escheats of lands for which no owners or heirs could be found, and which, therefore, went back to the Crown. with the general Indian principle that the lands were tribal. In some cases, as among the Iroquois, they had agreed upon intertribal boundaries among themselves. So far as the suzerainty of the king of England was concerned, they understood naught of it. To their minds, the whites were simply wandering bands who sought a place of residence; and when they got tired of it would go somewhere else. Colonial Practice.-The English theory was well maintained during the colonial period. Individuals did sometimes secure grants from Indian tribes; and individuals and communities sometimes got grants from bodies of individual Indians less than tribes; but the recognized principles regulating the legal status of the Indian were as follows: (1) the tribe was entitled to occupy its ordinary range of lands till it made a cession, such cessions often being the fruits of a destructive war; (2) the Indian living with his tribe was not subject to the jurisdiction of the English colonies; (3) members of broken tribes might be received on a fixed area of land within a colony, thus accepting what is substantially the present reservation system. (4) an Indian who had left his tribe, especially a Christian Indian, was subject to colonial law and became a sort of inferior citizen, entitled to the protection of law in life and property. Individual Indians, particularly members of defeated tribes, could be made slaves, although that status was unknown in England as applied to white persons. The Massachusetts statute of 1641 against slavery expressly excepted "captives in just wars." The children of Indian slaves were also slaves, but the Inlians pined and died under the system, and it was of small economic importance (see SLAVERY AS A LABOR SYSTEM). The Federal Government.-Down to the Rev olution, the theory of dealing with tribes fitted in with the conditions. The Six Nations in the North and the Cherokees and Creeks in the South were numerous, warlike and well organized, abundantly able to protect themselves and their lands. During the Revolution, the Six Nations were crushed, and twenty-five years later, the Creeks and Cher INDIANS, CONSTITUTIONAL AND LEGAL STATUS OF okees succumbed (see WARS OF THE UNITED STATES). Early in the Revolution the Continental Congress took the ground that it succeeded to the British Government in direct relation with the Indians; officials were appointed to deal with the Indians; Indian chiefs were received in the hall of Congress; efforts were made to enlist Indian allies; and in 1778 was made the first of a long series of treaties between the United States and Indian tribes. The twin doctrine of tribal unity and of the Indian right of occupancy were completely adopted. Several of the colonies had made treaties with the Indians, some of the states, particularly Georgia, tried to keep up independent relations; but Congress ignored the lack of authority under the Articles of Confederation and assumed a right of control. This control was subsequently affirmed in indefinite terms, by the Federal Constitution. The clauses in that document which bear upon the status of the Indians are as follows: (1) that relating to Representatives and direct taxes, which excludes Indians not taxed (Art. I, Sec. ii, 3); (2) the authority "to regulate Commerce with the Indian tribes" (Art. I, Sec. viii, 13); (3) the right "to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States (Art. IV, Sec. iii, ¶ 2). These clauses include explicitly only Indian trade, but through the territorial clause and the powers of the United States to make war and to make treaties, full authority over the tribal Indians was successfully asserted for the Federal Government. Indians who had left their tribes, and the fragments of tribes, such as the Senecas in New York, remained under state jurisdiction; otherwise, the status of all individual Indians and of all tribes including tribal Indians within the boundaries of states, remained federal. Doctrine of Reservations.-The former English principle that the relation of government to the Indians was primarily an affair of the central government, was carried over under the new régime; and the Federal Government maintained that the lands of the tribal Indians within state boundaries were not under the jurisdiction of the state governments, or subject to the operation of state laws. Within the territories, the authority of the United States over the Indians was undisputed. By the treaty of Greenville (1795), a demarcation line was drawn across what is now the state of Ohio, separating lands reserved to the Indians from those open to white settlement, a principle earlier stated in the line of the treaty of Fort Stanwix in 1768, and subsequently applied in some cases in the Southwest. As the western country was settled cessions were constantly made by the Indians, till some tribes were left in islands of territory commonly called reservations. Until about 1890 it was the policy of the Government to remove tribes which had thus become surrounded by white settlers to new lands farther west; and in the thirties the Creek and Cherokee reservations in Georgia were, under great pressure, given up by the Indians, who were transferred to a new territory west of Arkansas. Law and Government.-Upon Indian reservations for many years the only criminal and civil law applying to relations of Indians with Indians was found in the traditions and decisions of the Indians themselves, through their self-constituted tribal machinery. The tribes were kept in order, and the lives and property of white people were safe-guarded by the Indian agents and other Government officials, resident among the Indians with troops in the background. In cases of aggravated crime where the Indians could not act, the agent sometimes held an informal court and declared the penalty. In contests between Indians and unofficial white men, for many years there was no law governing Indian reservations, but in 1834 Congress provided that crimes committed by white men on Indian reservations should be cognizable by the federal courts in a neighboring state or territory. The so-called Indian Territory had a peculiar system of government; it was sub-divided into reservations, each occupied by one of the "five civilized tribes" or one of the small additional tribes which were brought down from the North. Each of the five civilized tribes had a government modeled on that of the states, with an elected chief and a legislature. The Supreme Court in the cases of American Insurance Company vs. Canter (see, 1828, 3 Pet. 307); Cherokee Nation vs. Georgia (1831, In most of the then existing states, no nu-30 U. S. 1), and Worcester vs. Georgia (1832, merous tribes were left, except in Georgia, | 31 U. §. 515), supported the doctrine that the where the Indian question was complicated by the Georgian claims to extend to the Mississippi River (see CESSIONS BY THE STATES). When that matter was adjusted in 1802, the Federal Government agreed as soon as possible to bring under state control the tribal lands within the acknowledged limits of, Georgia. In the new states as they were admitted this principle of an exclusive jurisdiction of the United States in certain portions of the area of the state was tacitly admitted at the time of entrance into the Union. Indian reservations were within the exclusive jurisdiction of the United States, and not subject to state law. The United States Government was also the sole body which could cbtain legal title to land by the cessions of Indians. Down to 1871, even if.a cession was made after an Indian war, ownership of land was held to be in the Indians till they made a treaty. Legal Status of the Tribes.-When the status of the Indians under the Federal Constitution was first determined there were still tribes powerful enough to be reckoned as a diplomatic INDIANS, CONSTITUTIONAL AND LEGAL STATUS OF Indians who voluntarily left their tribes and took up homesteads thereby became citizens of the state in which they resided. Some efforts were made by tribal Indians to get citizenship by naturalization, but in the cases of Elk vs. Wilkins (112 U. S. 94) the Supreme Court held that Indians were not included in the naturali entity; and the usual means of regulating their | relation, and cannot become a citizen except status was by formal treaties negotiated under by federal law. The Zuni Indians were made direction of the President and ratified by a two-citizens by the treaty of 1848 annexing New thirds majority of the Senate. The question Mexico to the United States, because already whether the tribes were thus recognized as in-citizens of Mexico. By statute of Feb. 8, 1887, ternational states capable of entering into treaty obligations binding on both sides, and competent to sue as "foreign states" under the third article of the Constitution, came to a head in the case of Cherokee Nation vs. Georgia in 1831. The Supreme Court of the United States then decided that the Indian tribes were not foreign powers, but "domestic dependent na-zation laws of the United States. tions," which could have no jural relations except with the United States. By subsequent decisions the Court held that the internal government of tribes was subject to revision and alteration by the Federal Government but not by state government (U. S. vs. Kagama, 118 U. S. 375). Indian agents sometimes deposed a chief or group of chiefs and replaced them with others. Congress, by statute, fixed the conditions of membership in the civilized tribes, and regulated the status of white people who might intermarry with tribal Indians. The tribal governments in the Indian Territory by 1912 were all dissolved and the Indians were brought under the direct operation of the state governIment of Oklahoma. Legal Status of Individual Indians.-White people have occasionally sought and obtained formal membership in Indian tribes, as in the case of Samuel Houston in the early thirties; and in some instances were recognized by the Federal Government as full members. In general none but persons of Indian blood are entitled to the privileges, or subject to the restriction, of Indians. Half breeds, whether children of Indian fathers or mothers, are included in the tribes; but no white person can obtain tribal status either by adoption or by marriage with an Indian. The dissolution of the tribes in the Indian Territory included the full citizenship of the Indians thus emerged from the tribal status; and thousands of them became voters in the state of Oklahoma. The policy of the Government during the last two decades has been to induce the Indians to leave the tribes and merge in the normal political population. (See INDIAN POLICY OF THE UNITED STATES.) Nevertheless, the Indian citizen is not quite on the same footing as the white citizen with regard to his land and property. In the provisions for Indians taking up separate tracts of land in individual ownership, there has been a limitation that the land cannot be alienated till twenty-five years has passed, so that their ownership is seriously limited. On the other hand Indians may be entitled to unusual privileges. Thus in 1865 a statute was passed au thorizing every half breed among the Indians to enter a claim on the public land wherever he liked. As payment for ceded lands both before and after dissolution of the tribes, large trust funds have been lodged in the hands of the Government, and each Indian is entitled to an annual share of the interest. Some discriminations have been allowed with regard to the civil status of Indians. Tribal Indians are not included within the guaranties of personal rights embodied in the Federal Constitution, such as jury trial, keeping and bearing arms, and the right of petition. For many years the testimony of Indians was not received in the courts of Georgia, and some other The tribal Indian is part of a unit: he cannot acquire title to any part of the tribal lands, although in the Indian Territory a small number of families for the time being usurped their use. He is bound to obey the tribal laws, so far as they are not disapproved by the Fed-states, in equal weight with that of the white eral Government; he is an equal sharer with all other members of the tribe in the tribal property, which consists of lands and of funds held and administered for the tribe by the Federal Government. He is entitled to a share in the distribution of food or other supplies, when made to his tribe by the Government. From the beginning of the Federal Government some Indians from time to time have left| their tribes and become citizens under the ordinary conditions. The term "Indians not taxed" in the Constitution admits the existence of a class of Indians taxed and presumably citizens. Some states allowed such citizenship without any particular legal process. people. The sale of liquor to Indians on the reservations or near the reservations has been forbidden by early acts of Congress (May 6, 1822, July 9, 1832 and June 30, 1834). Indians who are citizens, however, are eligible to public office on the same terms as white men. See ALIEN; ALLOTMENT OF LAND TO INDIANS; CITIZENSHIP IN THE UNITED STATES; COLONIZATION BY GREAT BRITAIN IN AMERICA; FRONTIER IN AMERICAN DEVELOPMENT; HOMESTEADS ON PUBLIC LANDS; INTERIOR, DEPARTMENT OF; NATURAL RIGHTS; NEGOTIATION OF TREATIES BY THE UNITED STATES; PRIVILEGED STATUS OF PERSONS; PUBLIC LANDS AND PUBLIC LAND POLICY. The ordinary principle is, however, that a References: F. E. Leupp, Indian and His tribal Indian cannot divest himself of that Problem (1910); J. McLaughlin, My Friend |