Adhering to the Supreme Court’s interpretation of the United States Constitution, American Indian tribes were deemed to be nations, more specifically “domestic, dependent nations.” Following the Constitution, the federal government, and only the federal government, negotiated treaties with Indian nations just as they did with other nations. However, since the Indian nations were located within the territory of the United States there were often conflicts which had to be decided by the courts. Briefly described below are just some of the court cases involving American Indians in 1870, 150 years ago.
Conflicts with Treaties
The Supreme Court in the Cherokee Tobacco Case affirmed that Congress has the power to pass legislation which conflicts with treaty provisions. The case involved the conflict between the 1868 Revenue Act which imposed taxes on distilled spirits, fermented liquors, tobacco, snuff, and cigars that were produced within the exterior boundaries of the United States and the 1866 Cherokee Treaty which exempted Indians in the Cherokee Nation from these taxes. In spite of the fact that there was no revenue collection district that included Cherokee lands – which made it impossible for the Indians to purchase the required revenue stamps – the Supreme Court ruled that the Cherokee were within the jurisdiction of the United States, that the Treaty had been repealed by the Revenue Act (even though there was no language in the Act to that effect), and therefore the Cherokee must pay the tax.
Commissioner of Indian Affairs
In the United States in 1870, the administration of Indian affairs was a part of the Department of the Interior. Within the Department, the Commissioner of Indian Affairs, a political appointee, was responsible for the actual administration of Indian affairs,
The Supreme Court of Kansas in Wiley v. Keokuk found that the Commissioner of Indian Affairs had overstepped his authority in having Indians restricted to the reservation. The case stemmed from an 1868 incident in which James Keokuk and other members of a Sauk and Fox delegation had been arrested for trying to travel to Washington, D.C. without the permission of the Indian agent.
The attorney for James Keokuk argued that this case:
“involves a great constitutional question: an exercise in arbitrary power; a violation of our magna charta; an attempt to destroy liberty of all the domestic dependent nations, with who we are connected by treaty stipulations.”
He went on to say that the basis issue
“involves the question whether the orders of an inferior executive officer can have the force of law, makes slaves of free men because their skin is red, and order their imprisonment should they dare to disobey his orders.”
The court awarded James Keokuk $1,700 in damages. In his book Diplomats in Buckskins: A History of Indian Delegations in Washington City, historian Herman Viola summarizes the legacy of Wiley v. Keokuk:
“Commissioners, superintendents, and agents would continue to cajole, threaten, and denounce Indians who had the temerity to ignore a warning about traveling to Washington, but no one ever again tried to jail a delegation to keep it home.”
Jurisdiction
In Nebraska, a federal court ruled that the court did not have jurisdiction over a group of Pawnee convicted of killing an American on an Island in the Platte River. The court claimed that the crime was committed on state land and therefore the state should have jurisdiction. The judge allowed 20 days for the state to claim the prisoners or they would be set free. The county sheriff was concerned that if the Pawnee were returned to Butler County they would be mobbed and so asked that the prisoners continue to be held in Omaha.
Indians as People
In 1870, American Indians were not American citizens, nor could they become citizens. In a number of states and territories, American Indians were not considered “people” under the law: they were not allowed to testify in court or to bring civil suits against non-Indians.
In Washington Territory, the territorial supreme court heard the case of Jack Gho versus Charley Jules. Charley Jules was the first Snohomish Indian to begin logging. Jack Gho (Chinese) had worked for Jules as a cook and claimed that Jules owed him back wages. When the lower courts found for Gho, Jules appealed to the supreme court claiming that as an Indian he could not make a legally binding contract because he maintained tribal relations and was under the charge of an Indian agent.
The court found that Jules was an alien, but like other aliens – Englishmen, Spaniards, and Danes— he could make contracts. He was ordered to pay Gho. In making this decision, historian Brad Asher, in his book Beyond the Reservation: Indians, Settlers, and the Law in Washington Territory, 1853-1889, points out:
“The court conveniently ignored the legal prohibition on Indian testimony, a prohibition to which other aliens were not subject.”
Indians 101
Twice each week Indians 101 explores various American Indian topics. More from this series:
Indians 101: Reforming Indian Policies 150 Years Ago, 1869
Indians 201: A short overview of the Tillamook Indians
Indians 101: The Plateau Indian vision quest
Indians 101: Indian Removal 200 years ago, 1820
Indians 101: Fishing on the Columbia River (Old Photos)
Indians 101: Cherokee Government and the English
Indians 101: Canadian First Nations 150 years ago, 1870
Indians 101: The Pemmican War