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to this decision, an Indian has the same legal rights before United States Courts as a white man. The logical sequence of this decision is to grant to the Indian the rights of citizenship.
Whether Indian affairs are administered by the War Department or the Department of the Interior, in either case the management is contrary to the spirit and Constitution of the American Government, as interpreted by its founders and advisers. In 1819, Chief Justice Marshall used the following language, which but repeats sentiments uttered by the founders of the republic:-"The Government of the Union is emphatically and truly a government of the people. In form and in substance it emanates from them. Its powers are granted by them and are to be exercised directly on them and for their benefit." "The Constitution acts directly on the people by means of powers communicated directly from the people. No State, in its corporate capacity, ratified it, but it was proposed for adoption to popular conventions." Webster, in 1830, spoke of " the people's government, made for the people, made by the people and answerable to the people." President Lincoln, in his Gettysburg address, speaks of "the government of the people, by the people, and for the people."
These principles of government have received the sanctions of statesmen and publicists in all civilized countries. Edmund Burke, in the debate on the control of the American Colonies, in the Parliament of Great Britain, more than a century since, maintained that clemency was but a part of justice. "The natural effect of fidelity, clemency, kindness in governors," he observed, "is peace, good will, order and esteem in the governed."* And Hon. Horatio Seymour wrote truly in the North American Review, of recent date, when he declared that "The theory of our fathers takes away control from political centres and distributes it to the various points that are most interested in its wise and honest exercise. It keeps at every man's home the greatest share of the political power that concerns him individually. It yields to the remote legislative bodies in diminishing proportions as they recede from the direct influence and action of the people. *Morley's Burke : English Men of Letters Series.
The local self-government, under which our country is expanding itself over a continent, is founded on the idea that that government is most wise, which is in the hands of those best informed about the particular questions on which they legis late; most economical and honest when controlled by those most interested in preserving frugality and virtue; most strong when it only exercises authority which is beneficial in its action to the governed."
Illustrations of these principles of government are not wanting in the annals of the world. They may be found in abundance in the new democracies as well as in the old,-in the New England plan of town meetings, for example, at which all the affairs of the town are settled, taxes levied and measures for the commonweal adopted; and which, though not introduced into the other States, has yet impressed the whole system of government throughout the north and west. This New England plan proposed local self-government, in which those immediately interested had the control. The smallest amount of power consistent with a strong Union was granted to the general Government, the largest amount reserved for the State, and within the limits of the State the same policy was maintained; while to the State government has been entrusted the least posssible amount of power, the largest being given to the public immediately interested who are supposed to be best informed as to their own wants, and of the questions requiring legislation. And it was decided that their legislation would be the most economical and honest because administered by those immediately concerned and most interested in preserving peace and order and securing impartial justice. The order in which power is conferred, in a government by the people, differs from that of monarchical governments: with the latter, the centre has the most, the remote points the least; with the former, this order is somewhat reversed. The aim of the fathers of the American republic was to increase the power and scope of the legislation in the State governments, culminating in the municipal or town government where the people controlled directly their affairs. At every man's home was reserved, therefore, the greatest power which can concern him individually;
2d Series: VOL. VI.-NO. I.
the least possible amount of interference from the general or State government was tolerated; every right given to the Federal Government was surrendered with reluctance; and every precaution taken to prevent any centralization of power, which it was found, if once permitted, would end in changing the republic to some form of centralized and irresponsible government.
In another respect our government, as designed by its founders, differs from others, and that is in the fact that the rights of States and of persons are fortified by placing the judiciary above the executive, or law-making, power. The recent action of the United States Courts in the case of the Ponca Indians, to which reference has been made, proves that this design has not wholly misconceived. But the action of the Department of the Interior in attempting to evade this decision brings to light a tendency, which is only too manifest, to elevate the executive above the judiciary,-in other words, to consolidate into one, and that one the executive, two distinct departments of the Government. This tendency could hardly fail to become more, pronounced, were the control of Indian affairs to pass into the hands of the military.
This design of the fathers of the Constitution in regard to the limitations of the executive department of the Government has been for years defied by the Indian ring. The judiciary has but little influence over the Indian reservations. Difficulties among the Indians or between the Indians and the whites have been settled, when settled at all, by the executive; and too frequently by the executive in its most objectionable form. The whites steal the property of the Indians and generally escape punishment, no judicial process being able to reach them, as their neighbors, who were well disposed, left the redress to the general Government, whose wards the Indians were supposed to be. Redress failing, the Indians retaliated and, thereby, became malefactors, to be summarily dealt with by the Indian agent. Crime on the reservations was not repressed by process of law, but by the arbitrary power of the agent; and neither the Indian nor his white neighbors learned anything of the so-called majesty of the law which
restrains crime in civilized communities. Under this régime, the poor Indians have no redress whatever for the lawlessness committed against them by their white neighbors; while they themselves are treated as outlaws should they proceed to redress their own wrongs!
Then, as regards that fundamental policy of the republic, to make of it a government by the people for the people, this has been equally set at defiance; for in matters relating to the Indians it has been a government by the Indian ring for the Indian ring. The people immediately interested, namely, the Indians and the settlers in their vicinity, the only persons who knew all the circumstances in the cases of dispute so frequently arising-the persons especially interested in a just and amicable settlement-these have no voice in the matter. The Indian Department has been an imperium in imperio, responsible only to itself and in some sort to Congress: in some sort only, for it was an easy matter to prevent investigation or to conceal the facts; so that the Department was virtually irresponsible and thus able to defeat the very principle of our government, viz.: that it should be administered by the people and for the people. The Indian Department, independent of the State and territorial governments, independent of the county governments in territory adjacent to the reservations, has managed affairs on large reservations and relating to a large number of persons according to a system of its own, not determined by the law-making branch of the Government, but by the executive, that is, by the Secretary of the Interior and his assistants. Here we have a system utterly at variance with the government by which the rest of the republic is controlled, and a system which has fostered among its officials a corruption that has extended beyond these officials to Congress and the State Legislature, to the damning injury of popular government in America.
The decision of Judge Dundy, of Nebraska, in the case of the Ponca Indians, is of special importance, because it is the first case in which the judicial branch of the Government has defined the true position of the Indians, and indicates what is. the true solution of the Indian problem. And that solution, so
accordant with the spirit of the Government and with commonsense, is to place under State and territorial control the Indians within the limits of the States and territories respectively. Each State or territory concerned has but a few tribes within its borders, and these closely resembling each other in habits and customs. Each individual case can thus receive such attention and consideration as the pecular circumstances demand. The head-quarters from which emanate the decisions. respecting disputes between the two races, are then near the homes of the parties between whom trouble has arisen. Such difficulties can thus be speedily settled, before they reach proportions of such gravity as to require the aid of the military. Only a small roll of red tape need be unwound. Those immediately interested will do the governing a thousand eyes will watch the Indian agents, of those too, vitally interested in maintaining peace, since there is life and property at stake; of those, again, who have a voice in the appointment of these agents, through the delegate whom they send to the State or territorial Legislature, and through the officers whom, in the States, they elect to office.
While the Indian problem is a complicated one, it is no more so than many others which comprehend the principle of justice between man and man, and which the people manage successfully. It may be objected that the frontier-men, whose opinions will exert the greatest influence in the settlement of questions in dispute between the reds and whites, will regard the Indian as a species of wild beast, to oppress and destroy whom is legitimate sport. Among the farmers, miners and stock-raising men and their employés along the frontier especially, are many lawless persons imbued with this idea, but they are fewer than is generally supposed; and even these few, from motives of self-interest, will desire that the Indian be rightly treated. More Indian outbreaks arise from the dishonesty and rapacity of traders, contractors and agents than from all other causes combined; and were the Indians managed by the State and territorial governments, these rapacious servants of the State would speedily be discovered by their vouchers and supporters and summarily discharged.