§ 405. Number of treaties made with Indians before method was abandoned.-Over three hundred treaties were made with Indians during the eighty years that the practice continued, a full list of which will be found in the document published by the Interior Department in 1873:1 many of

See also various collections of Indian laws and treaties at different dates or referring to particular tribes and the following com

ticular and immediate manner than | revision of treaties with the Indian it now is) the act of Government, tribes now in force." Washington, then it follows that I am to ratify Government Printing Office, 1873. it. If you mean by my executing it that I am to see that it be carried into effect and operation, then I am led to conclude either that you consider it as being perfect and ob-pilations made prior to 1873. ligatory in its present state, and, therefore to be executed and observed, or that you consider it as to derive its completion and obligation from the silent approba-ings of the old Congress, and other tion and ratification which my important state papers, in relation proclamation may be construed to imply. Although I am inclined to think that the latter is your intention, yet is certainly is best that all doubts respecting it be removed.

Indian treaties, and laws and regulations relating to Indian affairs, to which is added an appendix, containing the proceed

to Indian affairs. Compiled and published under orders of the Department of War of 9th of February and 6th of October, 1825, Washington City: Way & Gideon, Printers, 1826.

The Public Statutes at Large of the United States of America, from the organization of the government in 1789, to March 3, 1845. By authority of Congress. Arranged in chronological order with references to the matter of each act and to the subsequent acts on the same subject, and copious notes of the decisions of the Courts of the United States construing those acts, and upon the subjects of the laws. With an index to the contents of each volume, and a full general index to the whole work, in the concluding volume, together with the Declaration of Independ

1A compilation of all the treaties between the United States and the Indian tribes now in force as laws, prepared under the provisions of the act of Congress, approved March 3, 1873, entitled "An act to provide for the preparation and presentation to Congress of the re-ence, the Articles of Confederation vision of the laws of the United States, consolidating the laws relatto the post-roads, and a code relating to military offenses, and the

and the Constitution of the United States; and also, tables, in the last volume, containing lists of the acts relating to the judiciary, imposts

these treaties have expired either by complete extinction of the tribe with which they were made, the merger of that tribe into some other tribe, the superseding effects of subsequent treaties, or by abrogation, either as the result of subsequent acts of Congress or by consent of the contracting parties. Although no further treaties can be made with any of the Indian tribes, (unless the act of Congress prohibiting them should be repealed and the practice reverted to, which is not likely to happen) many of these treaties still remain in force and questions may still arise, as many have arisen since 1871, in regard to the proper construction of such existing treaties, or of the effect of subsequent acts of Congress thereon. It is therefore proper, in a treatise of this nature, to refer to the treaty-making power as it has been exercised with Indian tribes so far as the question of power is concerned, and in so far as there are any similarities or distinctions in that respect between treaties made with Indians and those made with foreign nations. It is intended to refer to only a few of the numerous decisions, statutes and treaties, affecting Indian tribes, the references being confined exclusively to those bearing on the broad points discussed in the text; cases are also cited in many instances, as to their bearing upon those general principles which are applicable alike to treaties with Indians and with foreign powers.

§ 406. Complications under Indian treaties gradually disappearing; the Dawes Commission.-It is a matter of con gratulation that all cause for these questions arising is rapidly

and tonnage, the public lands, etc. | treaties (1842), see the "United Edited by Richard Peters, Esq., States Statutes at Large" volumes counsellor at law. The rights and 9 to 19 inclusive. interest of the United States in the A synoptical Index to the laws stereotype plates from which this and treaties of the United States of work is printed are hereby rec- America, from March 4, 1789, to ognized, acknowledged and de- March 3, 1851, with references to clared by the publishers, according the edition of the laws, published to the provisions of the joint resolu- by Bioren and Duane, and to the tion of Congress, passed March 3, Statutes at Large, published by 1845. Boston, Little, Brown and Little and Brown, under the auCompany, 1861. Volume VII: thority of Congress. Prepared unTreaties between the United States der the direction of the Secretary and the Indian tribes. of Senate. Boston, Charles C. For other subsequent Indian Little and James Brown, 1852.

disappearing. Through the medium of the Commission appointed by the act of Congress and which is generally known as the "Dawes Commission," taking its name from its Chairman, the relations between many of the Indian tribes and the United States both in regard to the administration of their affairs, and their possession of the soil, will be so definitely determined and established that questions hereafter arising can be settled, not by weighing conflicting clauses of statutes and treaties, but pursuant to a well digested and codified scheme of legislative and tribal control, and of judicial procedure of the Courts of the tribes and of the United States.1

This effort on the part of the Government to properly adjust Indian titles was contested, but the statute appointing the Commission has been upheld by the Supreme Court as being within the constitutional powers of Congress.2

§ 406.

enable the ultimate creation of a 1A Commission was appointed State or States of the Union which under an act of Congress approved shall embrace the land within said March 3, 1893, which provides Indian territory." Indian Approfor the appointment of this com- priation Act for fiscal year ending mission to the five civilized tribes June 30th, 1894, 27 U. S. Stat. at L. (Cherokee, Choctaw, Chickasaw, p. 612, see § 16, p. 645. Other acts Muscogee or Creek, and Seminole have been passed since extending Nations). The object stated is the powers of the commission and "for the purpose of the extinguish- several reports have been made of ment of the national or tribal title the progress of the work. See part to any lands within that territory II, Indian Affairs, Annual Report (Indian Territory) now held by any of the Department of the Interior and all of such nations or tribes, for 1899, Government Printing Ofeither by cession of the same or fice, for a report of 750 pages some part thereof to the United (with maps, schedules and illusStates, or by the allotment and divis-trations) made by Henry L. Dawes sion of the same in severalty among (Mass.) chairman, Tams Bixby the Indians of such nations or tribes, respectively, as may be entitled to the same, or by such other method as may be agreed upon between the several nations and tribes aforesaid, or each of them, with the United States, with a view to such an adjustment, upon the basis of justice and equity, as may, with the consent of such nations or tribes of Indians, so far as may be necessary, be requisite and suitable to

(Minn.), Archibald S. McKennon (Ark.) and Thomas B. Needles (Illinois) composing the commission. This report contains all the statutes under which the commissioners hold their powers.

2 Stephens vs. Cherokee Nation, U. S. Sup. Ct. 1899, 174 U. S. 445, FULLER, Ch. J. In this case which involved the constitutionality, or the validity, of legislation affecting citizenship or allotment of lands

§ 407. General treaty law applicable to Indian treaties. -In discussing the treaty-making power in general in the preceding chapters, decisions in cases involving Indian treaties have frequently been cited as authority for rules of law applicable to the general treaty-making power and having the same force as, and being equal in authority with, decisions involving treaties with foreign nations. Chief Justice Marshall, in the Cherokee Nation cases,' took the position, which has practically been adhered to ever since by the Supreme Court, that certain general rules were equally applicable to treaties made with Indians or with foreign powers. So far, therefore, as the elementary rules as to the exercise of the power, and the relative effects of treaties and statutes, and, to some extent, the construction of treaty clauses, there can be no doubt that many of the principles enunciated in cases involving Indian treaties are the same as though the treaties had been made with foreign powers.

§ 408. Chief Justice Marshall's decision in the Cherokee cases commented on.-Chief Justice Marshall's decision in declaring that Indian tribes stood upon a plane with foreign powers so far as treaties and treaty relations of the United States are concerned has, however, been the subject of comment, and his decisions and opinions in regard to the Cher

in the Indian Territory; held that the legislation appointing the Dawes Commission was constitutional. From pages 484 to 488 the court discusses many decisions affecting treaty relations of the United States and the Indians, and in concluding the opinion refers to the decision in the Territorial Court below, saying as follows (pp. 491, 492):

"The elaborate opinions of the United States court in the Indian Territory by SPRINGER, J., CLAYTON, J., and TOWNSEND, J., contained in these records, some of which are to be found in the report of the Commissioner of Indian Affairs for 1898, page 479, consider the subject in all its aspects,

and set forth the various treaties, tribal constitutions and laws, and the action of many tribal courts, commissions and councils which assumed to deal with it, but we have not been called on to go into these matters, as our conclusion is that we are confined to the question of constitutionality merely.

"As we hold the entire legislation constitutional, the result is that all the judgments must be affirmed."

(There were there three other cases argued and decided simultaneously.) § 407.

1 For these cases see §§ 411-412, p. 209, et seq., post.

okee nation have been modified by subsequent decisions of the Supreme Court; in the earlier history of this country Indian tribes played a far more important part, and occupied a much higher position, relatively, than they do at the present time. The then existing conditions, which have now passed into history and can never exist again, at least so far as the North American continent is concerned, made the practical settlement of questions involving Indian tribes and their relations to the government a far more difficult problem than can be appreciated by those who simply study them now from historical and legal standpoints.2

It is beyond the scope of this volume to enter into a general discussion of the status of the North American Indians in the United States, but a few cases in which that status has been definitely determined by the Supreme Court of the United States will be referred to in the succeeding sections.

§ 409. Original status of Indian Tribes; Chief Justice Marshall's enunciation in regard thereto in Johnson vs. McIntosh, 1823.-It can readily be seen that the status of the Indian tribes became at a very early day a question of great importance. If their title to the soil were absolute and they could exclude all other nations from occupying it or in any way interfering with their possession, it would have prevented the development of this country and necessitated its remaining a vast hunting ground for a few hundred thousand aborigines.1 Chief Justice Marshall declared in 1823 that the principles of discovery and occupation as the

§ 408.

1 Holden vs. Joy, U. S. Sup. Ct. 1872, 17 Wall. 211, CLIFFORD, J.; and see extract from opinion in note to § 414, p. 215, post.

2 See Roosevelt's Winning of the West, vol. 1, chaps. I-IV, for a statement as to the condition of the Indians in the original States. § 409.

1 Roosevelt and Parkman both place the total under half a million.

2 Johnson vs. McIntosh, U. S. Sup. Ct. 1823, 8 Wheat. 543, MARSHALL, CH. J. As this is one of the lead-'

ing Indian title cases, an extended reference will be made to it. The point decided in the syllabus is stated very briefly as follows:

"A title to lands, under grants to private individuals, made by Indian tribes or nations northwest of the river Ohio, in 1773, and 1775, cannot be recognized in the courts of the United States."

The opinion of the Chief Justice (pp. 571-605), is a lengthy resumé of the relations between the European nations and the Indians and the ownership of the United States and