Since the decision of the Supreme Court in Elk v. Wilkins a number of acts of Congress have been passed which have had the effect of destroying-, to a very considerable extent, the autonomous tribal governments of the Indians and of subjecting them to the immediate legislative control of Congress instead of to the treaty-making power. The way had been opened to this change in a "rider" attached to an appropriation bill in 1871 which provided, as has been earlier stated, that "No Indian nation or tribe "within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe or power with whom the United States may contract by treaty." 26

By an act passed March 3, 1S85, the federal courts were for the first time given considerable jurisdiction over crimes committed within the reservations by Indians upon Indians. Section 9 of this law provides: "That immediately upon and after the date of the pasting of this Act all Indians committing against the person or property of another Indian or other person any of the following crimes; namely, murder, manslaughter, rape, assault with intent to kill, arson, burglary, and larceny, within any Territory of the United States, and either within or without the Indian Reservation, shall be subject therefor to the laws of said. territory relating to said crimes, and shall be tried therefor in the same courts and in the same manner, and shall be subject to the same penalties, as are all other persons charged with the commiar sion of said crimes respectively; and said courts are hereby given jurisdiction in all such cases; and all such Indians committing any of the above described crimes against the person or property of another Indian or other person, within the boundaries of any State of the United States, and within the limits of any Indian: reservation, shall be subject to the same laws, tried in the same courts and in the same manner, and subject to the same penalties, as are all other persons committing any of the above crimes-within the exclusive jurisdiction of the United States."

25 Justices Wood and Harlan dissented.

26 Notwithstanding this act. Congress has continued to deal with the Indians. in many cases, by agreements. That is, their formal consent has been required as a condition precedent to putting into force the legislation proposed. Some question as to the constitutionality of this has been raised, it being alleged that the practice amounts to a delegation by Congress of its legislative power in the premises. It would seem, however, that the objection is not of great weight, as it is conceded that a legislative body may make a statute conditional upon the consent of those to whom it applies, provided such assent Affects merely the expediency of the statute (Cooley, Const. Lim., 7th ed., p. 164).

The constitutionality of this act was attacked upon the ground that it was not within the legislative power of Congress thus to interface with the internal legal affairs of Indians still maintaining, tribal governments. The Supreme Court held, however, in United States v. Kagama,27 that whatever political and legal freedom was enjoyed by the Indians was by way of permission or cession from the Federal Government, and was, therefore, subject to curtailment or complete withdrawal by that power. uThese Indian tribes," it declared, "are the wards of the Nation. They are communities dependent on the United States, dependent largely for their daily food, dependent for their political rights. They owe no allegiance to the States, and receive from them no protection."

To this decision the objection was urged, and. it would seem, with considerable force, that since the Indians are no longer permitted to enjoy tribal autonomy, and are no longer treated by the 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.

27 118 U. S. 375; 6 Sup. Ct. Rep. 1109; 30 L. ed. 228.

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 result28

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: