TREATIES, INDIAN. The first step of the United States Government in determining its policy in regard to the Indians, whether ex pressed or implied, was to decide as to the nature of their territorial rights, this being the chief and altogether the most important facto• in their relations with the whites. The decision reached on this point is distinctly stated by the United States Supreme Court in the case of Johnson and Graham's lessee v. McIntosh (8 Wheaton, 453 et as follows: "It has never been contended that the Indian title amounted to nothing. Their right of possession has never been questioned. The claim of the Government extends to the complete, ultimate title, charged with the right of possession, and to the exclusive power of acquiring this right." The next step was to determine the branch of the Government to carry out this policy. By the ninth of the Articles of Confederation it was declared that "the United States in Congress assembled have the sole and exclusive right and power of regu lating the trade, and managing all affairs with the Indians not members of any of the States." It is evident, therefore, that while acting un der the Articles of Confederation the right of managing and controlling the relations with the Indians resided in Congress alone. When the Constitution was framed this authority was con ferred upon the legislative department in the following brief statement: "To regulate commerce with foreign nations and among the several States, and with the Indian tribes." It is apparent, from the use of the term `tribes,' that the framers of the Constitution had in contemplation the method of dealing with the Indians as tribes through treaties. This is clear ly shown by the act of March 1. 1793, in which it is stated that no purchase or grant of lands from the Indians shall be of any validity "unless the same be made by a treaty or convention en tered into pursuant to the Constitution." This action of Congress necessarily placed the ini tiatory steps in dealing with the Indians under the jurisdiction of the President as the treaty making power, subject to confirmation by the Senate.
The colonies and also the mother country had treated with tile Indians as 'nations,' their chiefs or sachems often being designated as `kings'—and this idea, being retained by the founders of our Government, was ingrafteci into their policy. It must also be remembered that
the colonies then were weak, and that the Indian tribes were comparatively strong and capable of requiring recognition of equality. Notwithstand ing the evident anomaly of such a course, the growth in numbers and strength of the whites, and tile diminishing power of the natives, this implied equality was recognized in the dealings between the two until the act of March 3, 1871. During all this time Indian titles to lands were extinguished only under the treaty-making clause of the Constitution: and these treaties, though the tribe may have been reduced to a small band, were usually clothed in the same stately verbiage as the most important treaty with a great European power.
It was ordered by this act of March 3, 1S71, that "No Indian nation or tribe within the ter ritory 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," thus terminating a legal fiction which had been kept up for nearly a hundred years. It appears from the annual report of the Commis sioner of Indian Affairs for 1890, that the Indian title to all the public domain had been extin guished except in Alaska, in the portions included in 162 reservations, and those acquired by the Indians through purchase. As the title to res ervations is derived in most cases from the United States, and title by purchase is derived directly or indirectly from the same source, it may be stated that the Indian title to all the public domain, except in Alaska, had practically been extinguished by the year 1890. It would seem, in fact, that the United States Government proceeded on the theory that all the lands within its bounds were held by the natives, and hence that their possessory right must be extinguished. The only known variation from this rule was in the case of the Uintah Utes, where an omitted portion of their claimed territory was taken possession of without agreement. From the for mation of the Government up to March 3, 1871, 653 treaties were made with 97 different tribes or recognized tribal organizations.