Federal Government as independent communities which are to be dealt with by treaties instead of statutes, there disappears the constitutional justification for denying to the States the control of such of them as live within their territorial limits. To this the Supreme Court had no better answer to give than that of expediency-always a poor, if not an absolutely invalid argument. The power of the General Government over these remnants of a race once powerful, now weak and diminished in numbers," it said, " is necessary to their protection, as well as to the safety of those among whom they dwell." Upon this argument the exclusive jurisdiction of the Federal Government over the negroes could, in a degree at least, be justified.

At various times during past years, Congress has declared as to particular Indian tribes, that their lands should be divided and held in severalty by their respective members, and that, thereupon, such Indians should become citizens of the United States, and pass immediately from the exclusive jurisdiction of the Federal Government to that of the States in which they reside. By the General Land in Severalty Law, known as the "Dawes Act," approved February 8, 1887, the President was given the power to apply this process to practically every Indian reservation in the country. The peculiarity of these acts is, it will be observed, that it makes citizens of Indians against their will. The action is taken at the discretion of the President and citizenship is the result.28

28 The following are the provisions of this act upon the points under discussion:

"That in all cases where any tribe or band of Indians has been, or shall hereafter be, located upon any reservation created for their use, either by treaty stipulation or by virtue of an act of Congress or executive order setting apart the same for their use, the President of the United States be, and he hereby is, authorized, whenever in his opinion any reservation or any part thereof of such Indians is advantageous for agricultural and grazing purposes, to cause said reservation, or any part thereof, to be surveyed, or resurveyed if necessary, and to allot the lands in said reservation in severalty to any Indian located thereon in quantities as follows:

"Sec. 5. That upon the approval of the allotments provided for in this act by the Secretary of the Interior, he shall cause patents to issue therefor in the name of the allottees, which patents shall be of the legal effect, and

The declaration of 1871, and the acts of 1885 and 1887, and the sustaining of their constitutionality by the Supreme Court, illustrate the legal power of the United States to govern the tribal Indians at will as bodies of individuals completely subject to its legal control, despite the status of quasi-independence that has been accorded them. This absolute power of control has been conspicuously exhibited in more recent legislation which has been enacted in pursuance of a policy decided upon to abolish, as rapidly as possible, the tribal relations and governments, to extinguish the Indian titles to lands, and to incorporate the individual Indians in the general citizen bodies of the States and Territories in which they live.

declare that the United States does and will hold the land thus allotted for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, or, in case of his decease, of his heirs, according to the laws of the State or Territory where such land is located, and that at the expiration of said period the United States will convey the same by patent to said Indian, or his heirs as aforesaid, in fee, discharged of said trust and free of all charge or incumbrance whatsoever: Provided, That the President of the United States may in any case in his discretion extend the period. .

"Sec. 6. That upon the completion of said allotments and the patenting of the lands to said allottees, each and every member of the respective bands or tribes of Indians to whom allotments have been made shall have the benefit of and be subject to the laws, both civil and criminal, of the State or Territory, in which they may reside; and no Territory shall pass or enforce any law denying any such Indian within its jurisdiction the equal protection of the law. And every Indian born within the territorial limits of the United States to whom allotments shall have been made under the provisions of this act, or under law or treaty, and every Indian born within the territorial limits of the United States who has voluntarily taken up, within said limits, his residence separate and apart from any tribe of Indians therein, and has adopted the habits of civilized life, is hereby declared to be a citizen of the United States, and is entitled to all the rights, privileges, and immunities of such citizens whether said Indian has been or not, by birth or otherwise, a member of any tribe of Indians within the territorial limits of the United States without in any manner impairing or otherwise affecting the right of any such Indian to tribal or other property.

"Sec. 8. That the provision of this act shall not extend to the territory occupied by the Cherokees, Creeks, Choctaws, Chickasaws, Seminoles, and Osage, Miamies and Peorias, and Sacs and Foxes, in the Indian Territory, nor to any of the reservations of the Senaca Nation of New York Indians in the State of New York, nor to that strip of territory in the State of Nebraska

The new policy was based upon the facts found by the so-called "Dawes Commission," which was created by the acts of March 3, 1893, and March 2, 1895.30

29

The constitutionality of thus summarily dealing with the Indians by statute, has been questioned in a number of cases before the Supreme Court, but has always been sustained.

In Stephens v. Cherokee Nation,31 decided in 1899, it was held that because such legislation might be in violation of previous treaties with the Cherokees was no ground for holding it invalid. As to the general legislative powers of Congress over the Indians, the court said: "We need not review the decisions on the subject, as they are sufficiently referred to by Mr. Justice Harlan in Cherokee Nation v. Southern Kan. Ry. Co. (135 U. S. 641; 10 Sup. Ct. Rep. 965; 34 L. ed. 295), from whose opinion we quote as follows: The proposition that the Cherokee Nation is sovereign in the sense that the United States is sovereign, or in the sense that the several States are sovereign, and that that nation adjoining the Sioux Nation on the south added by executive order." (Rev. Stat., § 2316.)

The Dawes" Act of 1887 also provides for allotments of land and citizenship to Indians who may wish to settle upon the public lands of the United States. It also declares that all Indians forsaking their tribal life and adopting the habits of civilized life shall become citizens. Without this express statutory provision, as was decided in Elk v. Wilkins, citizenship could not thus be obtained.

The peculiar status of those Indians who have not become citizens is illustrated in the form of a letter of protection issued in lieu of a passport, to those traveling abroad. The following is a letter issued by our consul at Odessa, the form of which has been approved by the State Department: "To whom it may concern:

"The bearer of this document is a North American Indian whose name is Hampa. This Indian is a ward of the United States, and is entitled to the protection of its consular and other officials. He is not, however, entitled to a passport, as he is not a citizen of the United States. This consulate has the honor to request the Russian authorities to grant Ilampa all necessary protection during his stay in Russia, and to grant him permission to depart when he requires it."

29 27 Stat. at L. c. 209.

30 28 Stat. at L. c. 189.

31 174 U. S. 445; 19 Sup. Ct. Rep. 722; 43 L. ed. 1041.

32 Quoting Thomas v. Gay, 169 U. S. 264; 18 Sup. Ct. Rep. 340; 42 L. ed.

alone can exercise the power of eminent domain within its limits, finds no support in the numerous treaties with the Cherokee Indians, or in the decisions of this court, or in the acts of Congress defining the relations of that people with the United States.' It is true, as declared in Worcester v. Georgia (6 Pet. 515; 8 L. ed. 483), that the treaties and laws of the United States contemplate the Indian Territory as completely separated from the States and the Cherokee Nation as a distinct community, and (in the language of Mr. Justice McLean in the same case, p. 583), that in the exccutive, legislative, and judical branches of our government we have admitted, by the most solemn sanction, the existence of the Indians as a separate and distinct people, and as being vested with rights which constitute them a State, or a separate community.' But that falls far short of saying that they are a sovereign State, with no superior within the limits of its territory."

In Cherokee Nation v. Hitchcock,33 decided in 1902, the provisions of the Act of 1898, authorizing the Secretary of the Interior to prescribe regulations for the leasing of mineral lands in the tribal districts of the plaintiffs for the purpose of making these lands productive and of securing therefrom an income for the benefit of the tribe, was held valid.

In Lone Wolf v. Hitchcock, decided in 1903, was questioned the constitutionality of an act of Congress of 1900 providing for allotment in severalty of lands held in common within certain Indian reservations and purporting to give an adequate consideration for the surplus lands not allotted or reserved for their benefit. In its opinion, upholding the validity of the act, notwithstanding its alleged incongruity with previous treaties, the court say: "Plenary authority over the tribal relations of the Indians has been exercised by Congress from the beginning, and the power has always been deemed a political one, and not subject to be controlled by the judicial department of the government. The power exists to abrogate the provisions of an Indian treaty,

33 187 U. S. 294; 23 Sup. Ct. Rep. 115; 47 L. ed. 183. 34 187 U. S. 553; 23 Sup. Ct. Rep. 216; 47 L. ed. 299.

though presumably such power will be exercised only when circumstances arise which will not only justify the government in disregarding the stipulations of the treaty, but may demand, in the interest of the country and the Indians themselves, that it should do so."

In United States v. Rickert,35 decided in 1903, it was held that lands allotted in severalty to Indians under the Act of 1887, and held in trust for them by the United States for twenty-five years, are not taxable by the State in which situated, nor are the improvements upon them, or the cattle or other property furnished the allottees by the United States. The court in its opinion say: "To tax these lands is to tax an instrumentality employed by the United States for the benefit and control of this dependent race, and to accomplish beneficent objects with reference to a race of which this court has said that from their very weakness and helplessness, so largely due to the course of dealing of the Federal Government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power. This has always been recognized by the Executive and by Congress, and by this court, whenever the question has arisen.' United States v. Kagama, 118 U. S. 375; 6 Sup. Ct. Rep. 1109; 30 I. ed. 228."

With reference to the permanent improvements on the lands in question, the court say: "Looking at the object to be accomplished by allotting Indian lands in severalty, it is evident that Congress expected that the lands so allotted would be improved and cultivated by the allottee. But that object would be defeated if the improvements could be assessed and sold for taxes. The improvements to which the question refers were of a permanent kind. While the title to the land remained in the United States, the permanent improvements could no more be sold for local taxes than could the land to which they belonged. Every reason that can be urged to show that the land was not subject to local taxation applies to the assessment and taxation of the permanent improvements. It is true that the statutes of South Dakota, for the purpose of taxation, classify all improvements made by per35 188 U. S. 432; 23 Sup. Ct. Rep. 478; 47 L. ed. 532.