CHAPTER XIV.

THE TREATY-MAKING POWER OF THE UNITED STATES AS IT HAS

BEEN EXERCISED WITH INDIAN TRIBES.

SECTION

423-Supreme Court has always afforded protection to

Indians both as to rights

of property and of person.

401. Difficulty of adhering closely to subject; opportunities to digress.-One of the greatest difficulties that an author has to contend with, while attempting to write a book upon a single branch of a great subject, is the oftrecurring temptation to digress from the main path of discussion into those numerous cross-roads and by-ways which constantly intersect, or diverge from, the straight course which he should follow. The opportunities for rambling which have presented themselves during the preparation of this book have been numerous and enticing, but the author has conscientiously endeavored to avoid all digression from the main points under consideration, to wit: the treatymaking power of the United States, what it is, as to extent and scope, how it has been, and how it can be, exercised, and the relative effects of treaty stipulations and State and Congressional legislation.

It was the author's intention to close this volume with a few remarks upon the limitations of the treaty-making power, leaving many interesting questions in regard to the construction of treaties, the effect of treaty stipulations upon public and private rights of States and individuals, as well as numerous other interesting points which have constantly presented themselves, for consideration in their proper order in the subsequent work under contemplation, which was referred to in the Introduction, and in which he hopes to discuss those questions at length, as principal, and not as subsidiary, divisions of the "Treaty Law of the United States."1

$402. Necessity of referring to Indian treaties and Indian status. It does not seem possible, however, to close this volume without making some reference to the treatymaking power, as it has been exercised by the United States Government with those aboriginal tribes of Indians which inhabited this land before the advent of the English, the Spaniards or the French, and which were far more numerous in 1787 in the States and Territories east of the Mississippi,

§ 401.

1 See § 10 to Introduction, vol. I.

than they are to-day in the territory and reservations which have been set apart for their exclusive use westward of that great river.

$403. Treaty method of dealing with Indians abolished.-Treaty making with the Indians in some respects is no longer a subject for discussion in a practical aspect; as since 1871, pursuant to Congressional legislation then enacted, no treaties are now made with Indian tribes;1 from 1787 until 1871, however, it was the custom of the United States Government to regulate the affairs of Indians, so far as their relations with the United States and with States were affected, by treaties, made by the Executive and rati

§ 403.

The contingent expenses of the Senate Deficiency Bill approved March 29th, 1867, 15 U. S. Stat. at L. p. 7, contained the following provision (p. 9):

"And all laws allowing the President, the Secretary of the Interior, or the Commissioner of Indian Affairs to enter into treaties with any Indian tribes are hereby repealed, and no expense shall hereafter be incurred in negotiating a treaty with any Indian tribe until an appropriation authorizing such expense shall be first made by law." Four months later this provision was repealed by an act passed specially for the purpose, July 20, 1867, 15 U. S. Stat. at L. p. 18.

The Indian Appropriation Act for the year ending June 30, 1872, approved March 3, 1871, (16 U. S. Stat. at L. p. 544) contained the following provision (p. 566):

"Provided, That hereafter 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: Provided, further, That nothing herein contained shall be construed to invalidate or

impair the obligation of any treaty heretofore lawfully made and ratified with any such Indian nation or tribe."

U. S. Rev. Stat. title XXVIII, INDIANS, chap. 2.

"Performance of engagements between the United States and Indians.

No future treaties with Indian tribes. Sec. 2079. 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; but no obligation of any treaty lawfully made and ratified with any such Indian nation or tribe prior to March third, eighteen hundred and seventy-one, shall be hereby invalidated or impaired. (3 Mar., 1871, c. 120, s. 1, v. 16, p. 566. 22 June, 1874, c. 389, s. 3, v. 18, p. 176. 10 June, 1876, c. 122, v. 19, p. 58.)

fied by the Senate, in the same manner as treaties were made and ratified with foreign countries. The fact that Congress eventually terminated this method does not necessarily reflect upon the wisdom of the earlier administrations in conducting Indian affairs through the medium of treaties, in the same manner as foreign relations were conducted. Anomalous conditions certainly resulted owing to the practice. It was unnecessary because Congress had the power to regulate commerce with the Indian tribes under express provisions in the Constitution; it was also contrary to the recognized principles of international law to make treaties with any government other than those possessing full sovereign powers. After the adoption of the Constitution, the Indians were, at all times, considered as wards of the nation, possessing merely a right of occupancy in the soil, which in every instance belonged either to the United States, or to one of the States, and as territory was subject to the jurisdiction, of one or the other or both, as the case might be. It is not strange, therefore, that difficulties arose from the treaty method as it was pursued, and that it was finally terminated, after experience had demonstrated that it was impracticable and improper to treat with Indian nations or tribes which were wholly under the control of our own government, in the same manner as we treated with independent and sovereign foreign powers over whose territory and citizens the United States have no control whatsoever.

§ 404. President Washington's message in regard to making treaties with Indians.-The custom of making treaties with the Indian tribes through the Executive and ratifying them by the Senate was inaugurated by President

good faith and legal and national obligations."

2"The Congress shall have Power . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Const. U. S. Art I, § 8, cl. 3.

8 See Chap. IV, especially § 133, vol. I, pp. 232, et seq.

4 United States vs. Kagama, U. S. Sup. Ct. 1886, 118 U. S. 375, MILLER, J. "These Indian tribes are the Wards of the Nation. They are communities dependent on the United States." And see extract from opinion in this case in note to § 419, pp. 226, et seq., post.

5 See cases under § 409, p. 204, post.

Washington; on September 17, 1789, within a few months after his inauguration, he transmitted a message to the Senate in which he asked whether or not treaties with Indians should be ratified in the same manner as those with foreign nations; the answer was evidently in the affirmative, for from that time until 1871, it became the settled practice to negotiate, and ratify, treaties with the Indians in the same manner as treaties with foreign nations; as the message of President Washington is brief, and was the basis of the procedure in regard to treaties with the Indians, which continued for over three-quarters of a century, it is included at length in the notes to this section.1

§ 404.

1 Special message (pp. 61-62, vol. 1, Richardson's Messages).

"September 17, 1789. "Gentlemen of the Senate:

"It doubtless is important that all treaties and compacts formed by the United States with other nations, whether civilized or not, should be made with caution and executed with fidelity.

"It is said to be the general understanding and practice of nations, as a check on the mistakes and indiscretions of ministers or commissioners, not to consider any treaty negotiated and signed by such officers as final and conclusive until ratified by the sovereign or Government from whom they derive their powers. This practice has been adopted by the United States respecting their treaties with European nations, and I am inclined to think it would be advisable to observe it in the conduct of our treaties with the Indians; for though such treaties, being on their part made by their chiefs or rulers, need not be ratified by them, yet, being formed on our part by the agency of subordinate officers,

it seems to be both prudent and reasonable that their acts should not be binding on the nation until approved and ratified by the Government. It strikes me that this point should be well considered and settled, so that our national proceedings in this respect may become uniform and be directed by fixed and stable principles.

"The treaties with certain Indian nations, which were laid before you with my message of the 25th May last, suggested two questions to my mind, viz: First, whether those treaties were to be considered as perfected and consequently as obligatory without being ratified. If not, then secondly, whether both or either, and which, of them ought to be ratified. On these questions I request your opinion and advice.

"You have, indeed, advised me to execute and enjoin an observance of the treaty with the Wyandottes, etc. You, gentlemen, doubtless intended to be clear and explicit, and yet, without further explanation, I fear I may misunderstand your meaning, for if by my executing that treaty you mean that I should make it (in a more par