[K.]

DEPARTMENT OF STATE, Washington, September 6, 1867.

GENERAL:- - In relation to the despatch of Major General Halleck, of the 2d of September, instant, in which he requests that the President will by proclamation declare the newly acquired Russian territory an Indian territory in order to prevent the introduction of ardent spirits among the Indians there, I am instructed to say that the President will retain the same for further consideration. At the same time he desires that Major General Halleck will confer with General Rousseau upon that subject, to the end that the matured views of those officers may be submitted to the President as early as practicable.

For the information of the War Department, I communicate a copy of an opinion of E. Peshine Smith, Esq., Examiner of Claims in this department, which sets forth a view of the laws of the United States bearing upon that question, which view is adopted by this department. I have the honor to be, General, your obedient servant,

GENERAL U. S. GRANT,

WILLIAM H. SEWARD.

Secretary of War ad interim.

Official:

R. WILLIAMS, Assistant Adjutant-General.

[L.]

BUREAU OF CLAIMS, September 5, 1867.

Proclamation that the territory ceded by Russia is Indian territory: Such a proclamation is recommended by General Halleck in order to prevent the introduction of whiskey among the Indians.

The act of 1834 (4 Stat. 729), "to regulate trade and intercourse with the Indian tribes," provides that "all that part of the United States west of the Mississippi, and not within the States of Missouri and Louisiana or the Territory of Arkansas, * * * * for the purposes of this act be deemed and taken to be the Indian country."

The question is, whether the provisions of that act in respect to trade and intercourse with Indians are to be restricted to their operation in the Indian country which was within the United States at the time of the passage of the act, or whether they take effect and apply to new territory acquired by conquest or treaty, without any further legislation. giving them such extension.

I think this question has been settled by the Supreme Court of the

United States in the case of Cross vs. Harrison (16 Howard's R., 164, 199). The question there was, whether upon the ratification of the treaty for the cession of California the existing several laws came into operation so as to regulate the rate of duties on imported goods without any act of Congress declaring their will in that respect, and creating collection districts. The court held that the ratification of the treaty made California a part of the United States, and that so soon as it became so the territory instantly became subject to the acts which were in force to regulate foreign commerce with the United States.

The argument was urged in that case that the revenue laws applied only to the territory under our jurisdiction when they were passed, until Congress, by creating collection districts in the new Territory, or some other act of the same nature, had manifested its will that the laws should be thus applied. That argument was overruled by the court, and it would, therefore, be overruled in respect to Alaska and commerce with the Indian tribes.

I think, therefore, that the new territory became a part of the Indian country on the 20th June last. A proclamation by the President is only necessary for the information of persons going into the territory of the restrictions to which they are subject in their intercourse with Indians. I think, however, the treaty itself may work some change in the existing law. For instance, one of the provisions is that no license to trade with the Indians shall be granted to any persons except citizens of the United States. The third article of the treaty provides that the inhabitants of the ceded territory, reserving their natural allegiance, may return to Russia within three years, but if they prefer to remain in the territory they (with the exception of native uncivilized tribes) shall be admitted to the enjoyment of all the rights, advantages, and immunities of citizens of the United States. While it may be that they cannot acquire the full rights of American citizenship until their election has been evidenced by remaining three years, it seems to me it would be a harsh construction, and one to be avoided, if possible, which should postpone for that period their right to receive a license to trade with the Indians. It can hardly be the intention of the treaty that they should lose any privileges by the incorporation of their territory with the United States. The provision should be deemed an enabling and not a restrictive one. If doubt remains on this point, as it may, it should, I think, be removed by Congress.

Official:

E. PESHINE SMITH,

Examiner.

R. WILLIAMS, Assistant Adjutant-General.

[M.]

DEPARTMENT OF STATE, Washington, January 30, 1869.

SIRI have the honor to acknowledge the receipt of your letter of the 27th instant, enclosing extracts from a communication from Mr. M. F. Smith, Jr., concerning the alleged habitual encroachment of the agents of the Hudson's Bay Company upon the trade and territory of Alaska, with a request for my views upon the subject.

By the sixth article of our treaty with Russia of March 30, 1867, the cession of territory and dominion therein made is "declared to be free and unincumbered by any reservations, privileges, franchises, grants, or possessions by any associated companies, whether corporate or incorporate, Russian or any other, or by any parties except merely private. individual property holders.

Article 5 of the treaty between Great Britain and Russia of February 28, 1825 (3 Hertslet's Treaties, 364), which was revived and continued. by the 19th article of the treaty between the same powers of January 12, 1859 (10 Hertslet, 1063), provides that "no establishment shall be formed by either of the two parties within the limits assigned by the two preceding articles to the possession of the other; consequently British subjects shall not form any establishment, either upon the coast or upon the border of the continent comprised within the limits of the Russian possessions." The articles referred to established the boundary lines between the British and Russian possessions on the northwest coast of America, the same adopted in our treaty of cession with Russia.

The provisions above cited are conclusive against the right of the Hudson's Bay Company to establish or maintain such an establishment as Fort Yukon is described to be in the communication from Mr. M. F. Smith, Jr. I understand the decision of the Supreme Court of the United States in the case of Harrison vs. Cross (16 Howard, 164–202), to declare its opinion that upon the addition to the United States of new territory, by conquest and cession, the acts regulating foreign commerce attach to and take effect within such territory ipso facto and without any fresh act of legislation expressly giving such extension to the pre-existing laws. I can see no reason for a discrimination in this respect between acts regulating foreign commerce and the laws regulating intercourse with the Indian tribes; there is, indeed, a strong analogy between the two subjects. The Indians, if not foreigners, are not citizens, and their tribes have the character of dependent nations under the protection of their government, as Chief Justice Marshall remarks, delivering the opinion of the Supreme Court in Worcester vs. The State

of Georgia (6 Peters, 557), "The treaties and laws of the United States contemplate the Indian territory as completely separated from that of the States, and provide that all intercourse with them shall be carried on exclusively by the government of the Union." The same clause of the Constitution invests Congress with power "to regulate commerce with foreign nations, ** and with the Indian tribes."

The act of June 30, 1834 (4 Stat., 729), defines the Indian country as, in part, "all that part of the United States west of the Mississippi and not within the States of Missouri and Louisiana, or the Territory of Arkansas." This, by a happy elasticity of expression, widening as our dominion widens, includes the territory ceded by Russia.

That act provides that no person shall trade with any of the Indians (in the Indian country) without a license; that any person, other than an Indian, who shall attempt to reside in the Indian country as a trader, or to introduce goods, or to trade therein, without such license, shall forfeit all merchandise offered for sale to the Indians or found in his possession; and shall, moreover, forfeit the sum of five hundred dollars; that no license to trade with the Indians shall be granted to any persons except citizens of the United States; that a foreigner going into the Indian country, without a passport from the War Department, the Superintendent or agent of Indian affairs, or the officer commanding the nearest military post on the frontiers, shall be liable to a fine of one thousand dollars; finally, that the Superintendent of Indian affairs, and Indian agents, and sub-agents, shall have the authority to remove from the Indian country all persons found therein contrary to law, and the President is authorized to direct the military force to be employed in such removal.

These provisions seem to be all that can be necessary to prevent the encroachments of the Hudson Bay Company, alleged by Mr. M. F. Smith, Jr.

Of the practical difficulties in the execution of these provisions you have better means of judging than has this department.

I have the honor to be, sir,
Your obedient servant,

HON. JOHN M. SCHOFIELD,

WILLIAM H. SEWARD.

Secretary of War, Washington, D. C.

THE

CHAPTER III.

Aboriginal Inhabitants of Alaska.

HE aborigines of North America are naturally divided into two great groups. One of these comprises the natives universally known under the name of Indians. For the other (to supply a term long needed in generalization, to distinguish the tribes of Innuit, Aleutians, and Asiatic Eskimo from the natives comprised under the first head), in a paper read before the American Association for the Advancement of Science, in September, 1869, I proposed the term Orárian in allusion to their universal coastwise distribution. The pertinence of this appellation will be better appreciated if the reader will take the trouble to lay down on the map the boundaries of the territory actually occupied by the members of this group. He will see that it forms a belt or girdle along the north and west coasts of America, and the extreme east coast of Asia, rarely interrupted, as on the northwest shore of Kenái; sometimes produced inland near a great watercourse, such as the mouth of the Yukon or Mackenzie; but nowhere attaining any great breadth, and everywhere interposed between the Indians, who occupy the interior, and the sea.

Our knowledge is yet insufficient, and the scope of this chapter is too limited, to admit of the discussion of the question of the original identity of the Indian and Orarian stocks. It is an easy matter, however, to show the most salient points of present difference. Another and more interesting question, that of the original derivation of the natives of America, is also too wide for discussion here, while the facts on which to ground any hypothesis are very limited in number.

To the overshadowing influence of Indo-European study in

*From ora, a coast. I should have preferred a term of native derivation (e. g. Innuit) had there been any of sufficient scope; failing in that, a classical term was adopted.