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Right of Every Nation to Just Treatment

  Native American Nations | A Century of Dishonor

 

It is evident, therefore, that the one fundamental right, of which the " law of nations" is at once the expression and the guardian, is the right of every nation to just treatment from other nations, the right of even the smallest republic equally with "the most powerful kingdom." Just as the one fundamental right, of which civil law is the expression and guardian, is the right of each individual to just treatment from every other individual: a right indefeasible, inalienable, in nowise lessened by weakness or strengthened by power-as majestic in the person of "the dwarf" as in that of "the giant."

Of justice, Vattel says: "Justice is the basis of all society, the sure bond of all commerce. * * *

"All nations are under a strict obligation to cultivate justice toward each other, to observe it scrupulously and carefully, to abstain from anything that may violate it. * * *

" The right of refusing to submit to injustice, of resisting injustice by force if necessary, is part of the law of nature, and as such recognized by the law of nations.

"In vain would Nature give us a right to refuse submitting to injustice, in vain would she oblige others to be just in their dealings with us, if we could not lawfully make use of force when they refused to discharge this duty. The just would lie at the mercy of avarice and injustice, and all their rights would soon become useless. From the foregoing right arise, as two distinct branches, first, the right of a just defense, which belongs to every nation, or the right of making war against whoever attacks her and her rights; and this is the foundation of defensive war. Secondly, the right to obtain justice by force, if we cannot obtain it otherwise, or to pursue our right by force of arms. This is the foundation of offensive war."

Justice is pledged by men to each other by means of promises or contracts; what promises and contracts are between men, treaties are between nations.

President Woolsey says: "A contract is one of the highest acts of human free-will : it is the will binding itself in regard to the future, and surrendering its right to change a certain expressed intention, so that it becomes, morally and jurally, a wrong to act otherwise.

" National contracts are even more solemn and sacred than private ones, on account of the great interests involved; of the deliberateness with which the obligations are assumed; of the permanence and generality of the obligations, measured by the national life, and including thousands of particular cases; and of each nation's calling, under God, to be a teacher of right to all, within and without its borders."

Vattel says " It is a settled point in natural law that he who has made a promise to any one has conferred upon him a real right to require the thing promised; and, consequently, that the breach of a perfect promise is a violation of another person's right, and as evidently an act of injustice as it would be to rob a man of his property. * * *

"There would no longer be any security, no longer any commerce between mankind, if they did not think themselves obliged to keep faith with each other, and to perform their promises."
It is evident that the whole weight of the recognized and accepted law of nations is thrown on the side of justice between nation and nation, and is the recognized and accepted standard of the obligation involved in compacts between nation and nation.
We must look, then, among the accepted declarations of the law of nations for the just and incontrovertible measure of the shame of breaking national compacts, and of the wickedness of the nations that dare to do it.

We shall go back to the earliest days of the world, and find no dissent from, no qualification of the verdict of the infamy of such acts. Livy says of leagues: " Leagues are such agreements as are made by the command of the supreme power, and whereby the whole nation is made liable to the wrath of God if they infringe it."

Grotius opens his "Admonition," in conclusion of the third book of his famous " Rights of War and Peace," as follows: " 'For it is by faith,' saith Cicero, `that not commonwealths only, but that grand society of nations is maintained.' Take away this,' saith Aristotle, `and all human commerce fails.' It is, therefore, an execrable thing to break faith on which so many lives depend. " It is,' saith Seneca, 'the best ornament wherewith God hath beautified the rational soul; the strongest support of human society, which ought so much the more inviolably to be kept by sovereign princes by how much they may sin with greater license and impunity than other men. Wherefore take away faith, and men are more fierce and cruel than savage beasts, whose rage all men do horribly dread. Justice, indeed, in all other of her parts bath something that is obscure; but that whereunto we engage our faith is of itself clear and evident; yea, and to this very end do men pawn their faith, that in their negotiations one with another all doubts may be taken away, and every scruple removed. How much more, then, doth it concern kings to keep their faith inviolate, as well for conscience' sake as in regard to their honor and 'reputation, wherein consists the authority of a kingdom.' "

Vattel says : "Treaties are no better than empty words, if nations do not consider them as respectable engagements, as rules which are to be inviolably observed by sovereigns, and held sacred throughout the whole earth.

"The faith of treaties-that firm and sincere resolution, that invariable constancy in fulfilling our engagements, of which we make profession in a treaty-is therefore to be held sacred and inviolable between the nations of the earth, whose safety and repose it secures; and if mankind be not willfully deficient in their duty to themselves, infamy must ever be the portion of him who violates his faith. *

"He who violates his treaties, violates at the same time the law of nations, for he disregards the faith of treaties, that faith which the law of nations declares sacred ; and, so far as dependent on him, he renders it vain and ineffectual. Doubly guilty, he does an injury to his ally, and he does an injury to all nations, and inflicts a wound on the great society of mankind. * * *

"On the observance and execution of treaties," said a respectable sovereign, "depends all the security which princes and States have with respect to each other, and no dependence could henceforward be placed in future conventions if the existing ones were not to be observed."

It is sometimes said, by those seeking to defend, or at least palliate, the United States Government's repeated disregard of its treaties with the Indians, that no Congress can be held responsible for the acts of the Congress preceding it, or can bind the Congress following it; or, in other words, that each Congress may, if it chooses, undo all that has been done by previous Congresses. However true this may be of some legislative acts, it is clearly not true, according to the principles of international law, of treaties.
On this point Vattel says: " Since public treaties, even those of a personal nature, concluded by a king, or by another sovereign who is invested with sufficient power, are treaties of State, and obligatory on the whole nation, real treaties, which were intended to subsist independently of the person who has concluded them, are undoubtedly binding on his successors; and the obligation which such treaties impose on the State passes successively to all her rulers as soon as they assume the public authority. The case is the same with respect to the rights acquired by those treaties. They are acquired for the State, and successively pass to her conductors."

Von Martens says: "Treaties, properly so called, are either personal or real. They are personal when their continuation in force depends on the person of the sovereign or his family, with whom they have been contracted. They are real when their duration depends on the State, independently of the person who contracts. Consequently, all treaties between republics must be real. All treaties made for a time specified or forever arc real. * * *

"This division is of the greatest importance, because real treaties never cease to be obligatory, except in cases where all treaties become invalid. Every successor to the sovereignty, in virtue of whatever title he may succeed, is obliged to observe them without their being renewed at his accession."

Wheaton says: "They (treaties) continue to bind the State, whatever intervening changes may take place in its internal constitution or in the persons of its rulers. The State continues the same, notwithstanding such change, and consequently the treaty relating to national objects remains in force so long as the nation exists as an independent State."
There is no disagreement among authorities on this point. It is also said by some, seeking to defend or palliate the United States Government's continuous violations of its treaties with the Indians, that the practice of all nations has been and is to abrogate a treaty whenever it saw good reason for doing so. This is true; but the treaties have been done away with in one of two ways, either by a mutual and peaceful agreement to that effect between the parties who had made it-the treaty being considered in force until the consent of both parties to its abrogation had been given-or by a distinct avowal on the part of one nation of its intention no longer to abide by it, and to take, therefore, its chances of being made war upon in consequence. Neither of these courses has been pursued by the United States Government in its treaty-breaking with the Indians.
Vattel says, on the dissolution of treaties: " Treaties may be dissolved by mutual consent at the free-will of the contracting powers."
Grotius says: "If either party violate the League, the other party is freed; because each Article of the League bath the form and virtue of a condition."

Kent says: "The violation of any one article of a treaty is a violation of the whole treaty. * * *

"It is a principle of universal jurisprudence that a compact cannot he rescinded by one party only, if the other party does not consent to rescind it, and does no act to destroy it. * * *

" To recommence a war by breach of the articles of peace, is deemed much more odious than to provoke a war by some new demand or aggression; for the latter is simply injustice, but in the former case the party is guilty both of perfidy and injustice."

It is also said, with unanswerable irrelevancy, by some who seek to defend or palliate the United States Government's continuous violation of its treaties with the Indians, that it was, in the first place, absurd to make treaties with them at all, to consider them in any sense as treaty making powers or nations. The logic of this assertion, made as a justification for the breaking of several hundred treaties, concluded at different times during the last hundred years, and broken as fast as concluded, seems almost equal to that of the celebrated defense in the case of the kettle, which was cracked when it was lent, whole when returned, and, in fact, was never borrowed at all. It would be a waste of words to reason with minds that can see in this position any shelter for the United States Government against the accusation of perfidy in its treaty relations with the Indians.
The statement is undoubtedly a true one, that the Indians, having been placed in the anomalous position as tribes, of "domestic dependent nations," and as individuals, in the still more anomalous position of adult " wards," have not legally possessed the treaty-making power. Our right to put them, or to consider them to be in those anomalous positions, might be successfully disputed; but they, helpless, having accepted such positions, did, no doubt, thereby lose their right to be treated with as nations. Nevertheless, that is neither here nor there now: as soon as our Government was established, it proceeded to treat with them as nations by name and designation, and with precisely the same forms and ratifications that it used in treating with other nations; and it continued to treat with them as nations by name and designation, and with continually increasing solemnity of asseveration of good intent and good faith, for nearly a century. The robbery, the cruelty which were done under the cloak of this hundred years of treaty-making and treaty-breaking, are greater than can be told. Neither mountains nor deserts stayed, them; it took two seas to set their bounds.

In 1871, Congress, either ashamed of making treaties only to, break them, or grudging the time, money, and paper it wasted, passed an act to the effect that no Indian tribe should hereafter be considered as a foreign nation with whom the United States might contract by treaty. There seems to have been at the time, in the minds of the men who passed this act, a certain shadowy sense of some obligation being involved in treaties; for they added to the act a proviso that it should not be construed as invalidating any treaties already made. But this sense of obligation must have been as short-lived as shadowy, and could have had no element of shame in it, since they forthwith proceeded, unabashed, to negotiate still more treaties with Indians, and break them; for instance, the so-called "Brunot Treaty " with the Ute Indians in Colorado, and one with the Crow Indians in Montana-both made in the summer of 1873. They were called at the time "conventions" or "agreements," and not "treaties;" but the difference is only in name.

They stated, in a succession of numbered articles, promises of payment of moneys, and surrenders and cessions of land, by both parties; were to be ratified by Congress before taking effect; and were understood by the Indians agreeing to them to be as binding as if they had been called treaties. The fact that no man's sense of justice openly revolted against such subterfuges, under the name of agreements, is only to be explained by the deterioration of the sense of honor in the nation. In the days Grotius there were men who failed to see dishonor in a trick if profit came of it, and of such he wrote in words whose truth might sting today as, no doubt, it stung then:

" Whereas there are many that think it superfluous to require that justice from a free people or their governors which they exact daily from private men, the ground of this error is this: because these men respect nothing in the law but the profit that ariseth from it, which in private persons, being single and unable to defend themselves, is plain and evident; but for great cities, that seem to have within themselves all things necessary for their own well-being, it doth not so plainly appear that they have any need of that virtue called justice which respects strangers."

These extracts from unquestioned authorities on international law prove that we may hold nations to standards of justice and good faith as we hold men; that the standards are the same in each case; and that a nation that steals and lies and breaks promises, will no more be respected or unpunished than a man who steals and lies and breaks promises. It is possible to go still farther than this, and to show that a nation habitually guilty of such conduct might properly be dealt with there for by other nations, by nations in nowise suffering on account of her bad faith, except as all nations suffer when the interests of human society are injured.

"The interest of human society," says Vattel, "would authorize all the other nations to form a confederacy, in order to humble and chastise the delinquent." * * * When a nation "regards no right as sacred, the safety of the human race re quires that she should be repressed. To form and support an unjust pretension is not only doing an injury to the party whose interests are affected by that pretension; but to despise justice in general is doing an injury to all nations."

The history of the United States Government's repeated violations of faith with the Indians thus convicts us, as a nation, not only of having outraged the principles of justice, which are the basis of international law; and of having laid ourselves open to the accusation of both cruelty and perfidy; but of having made ourselves liable to all punishments which follow upon such sins-to arbitrary punishment at the hands of any civilized nation who might see fit to call us to account, and to that more certain natural punishment which, sooner or later, as surely comes from evil-doing as harvests come from sown seed.

To prove all this it is only necessary to study the history of any one of the Indian tribes. I propose to give in the following chapters merely outline sketches of the history of a few of them, not entering more into details than is necessary to show the repeated broken faith of the United States Government toward them. A full history of the wrongs they have suffered at the hands of the authorities, military and civil, and also of the citizens of this country, it would take years to write and volumes to hold.

There is but one hope of righting this wrong. It lies in appeal to the heart and the conscience of the American people. What the people demand, Congress will do. It has been-to our shame be it spoken at the demand of part of the people that all these wrongs have been committed, these treaties broken, these robberies done, by the Government.

So long as there remains on our frontier one square mile of land occupied by a weak and helpless owner, there will be a strong and unscrupulous frontiersman ready to seize it, and a weak and unscrupulous politician, who can be hired for a vote or for money, to back him.

The only thing that can stay this is a mighty outspoken sentiment and purpose of the great body of the people. Right sentiment and right purpose in a Senator here and there, and a Representative here and there, are little more than straws which make momentary eddies, but do not obstruct the tide. The precedents of a century's unhindered and profitable robbery have mounted up into a very Gibraltar of defense and shelter to those who care for nothing but safety and gain. That such precedent should be held, and openly avowed as standards, is only one moreo infamy added to the list. Were such logic employed in the case of an individual man, how quick would all men see its enormity. Suppose that a man had had the misfortune to be born into a family whose name had been blackened by generations of criminals; that his father, his grandfather, and his great -grandfather before them had lived in prisons, and died on scaffolds, should that man say in his soul, " Go to! What is the use? I also will commit robbery and murder, and get the same gain by it which my family must have done?" Or shall he say in his soul, "God help me! I will do what may be within the power of one man, and the compass of one generation, to atone for the wickedness, and to make clean the name of my dishonored house!"

What an opportunity for the Congress of 1880 to cover itself with a luster of glory, as the first to cut short our nation's record of cruelties and perjuries! the first to attempt to redeem the name of the United States from the stain of a century of dishonor!


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A Century of Dishonor, By Helen Hunt Jackson, New York, Harper & Brothers, Franklin Square, 1885

Native American Nations

 

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