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ment, the same protection will undoubtedly be afforded to those people whom Chief Justice Marshall declared were in a state of pupilage to the United States which must always remain their guardian, as is given to any other holders of contract rights who come before that tribunal and ask for its protection.

2

President Roosevelt has recently expressed his views as § 423.

1 Choctaw & Chickasaw Nations vs. United States, U. S. Ct. Claims, 1899, 34 Ct. Claims, 17, HOwRY, J. Choctaw Nation vs. United States, U. S. Sup. Ct. 1886, 119 U. S. 1, MATTHEWS, J. (Reversing U. S. Ct. Claims, 1884, 19 Ct. Claims, 243, RICHARDSON, J.)

The Eastern Band of Cherokees vs. United States, U. S. Ct. Claims, 1885, 20 Ct. Claims, 449, RICHARDSON, Ch. J., affirmed, sub nomine, The Cherokee Trust Funds, U. S. Sup. Ct. 1885, 117 U. S. 288, FIELD, J. The opinion in this case contains a lengthy history of the Cherokee Nation and its migrations.

Pam-to-pee vs. United States, U. S. Sup. Ct. 1893, 148 U. S. 691, SHIRAS, J. (Affirming Potawatamie Indians vs. United States, U. S. Ct. Claims, 1892, 27 Ct. Claims, 403, WELDON, J.; United States vs. Old Settlers, U. S. Sup. Ct., 1893, 148 U. S. 427, FULLER, Ch. J.)

These are some of the cases distributing the funds under treaty

provisions between Indians; an examination of them shows the complicated condition of rights of Indians arising under treaties and sales of lands and the extent to which the courts of the United States have had to act as their guardians.

In re Sah Quah, U. S. Dist. Ct. Alaska, 1886, 31 Fed. Rep. 327, DAWSON, J.

Western Cherokee Indians vs. United States, U. S. Ct. Claims, 1891, 27 Ct. Claims, 1, NOTT, J.

Westmoreland vs. United States, U. S. Sup. Ct. 1895, 155 U. S. 545. BREWER, J. In this case, on the facts, the jurisdiction of the United States Court over Indians pursuant to treaty stipulations was sustained.

New York Indians vs. United States, Court of Claims, 1895, 30 Ct. of Clms. 413, DAVIS, J., aff'd U. S. Sup. Ct. 1899, 173 U. S. 464, BROWN, J.

United States vs. Blackfeather, U. S. Sup. Ct. 1894, 155 U. S. 180. BROWN, J. Rights of Indians under numerous treaties adjudicated and adjusted.

2 PRESIDENT ROOSEVELT ON TREATMENT OF THE INDIAN. In his first annual message transmitted to Congress on December 3, 1901, President Roosevelt expressed his views on this subject as follows: "In my judgment the time has arrived when we should definitely make up our minds to recognize the Indian as an individual, and not as a member of a tribe. The general allotment act is a mighty pulverizing engine to break up the tribal mass. It acts directly upon the family and the individual. Under its provisions some 60,000 Indians have already become citizens of the United States. We should now break up the tribal funds, doing for them what allotment does for the tribal lands;

to the necessity of terminating the tribal relations of the Indians still remaining in this country. These suggestions are so timely and appropriate that they are included as a final note to this chapter.

that is, they should be divided into individual holdings. There will be a transition period during which the funds will in many cases have to be held in trust. This is the case also with the lands. A stop should be put upon the indiscriminate permission to Indians to lease their allotments. The effort should be steadily to make the Indian work like any other man on his own ground. The marriage laws of the Indians should be made the same as those of the whites.

"In the schools the education should be elementary and largely industrial. The need of higher education among the Indians is very, very limited. On the reservations care should be taken to try to suit the teaching to the needs of the particular Indian. There is no use in attempting to induce agriculture in a country suited only for cattle raising, where the Indian should be made a stock grower. The ration system, which is merely the corral and the reservation system, is highly detrimental to the Indians. It promotes beggary, perpetuates pauperism and stifles industry. It is an effectual barrier to progress. It must continue to a greater or less degree as long as tribes are herded on reservations and have everything in common. The Indian should be treated as an individual-like the white man. During the change of treatment inevitable hardships will occur; every effort should be made to minimize these hardships; but we should not, because of them, hesitate to make the change. There should be a continuous reduction in the number of agencies.

"In dealing with the aboriginal races few things are more important than to preserve them from the terrible physical and moral degradation resulting from the liquor traffic. We are doing all we can to save our own Indian tribes from this evil. Wherever by international agreement this same end can be attained as regards races where we do not posses exclusive control, every effort should be made to bring it about."

236

CHAPTER XV.

CERTAIN SPECIFIC INSTANCES IN WHICH TREATY-MAKING POWER

HAS BEEN EXERCISED BY UNITED STATES.

SECTION.

SECTION.

424-Specific instances in which | 436-Rights of persons held for

the treaty-making power has been exercised to be reviewed, before discussing its limitations.

425-Justice Field's opinion in Geofroy vs. Riggs again referred to.

426-Justice Field's views com

pared with those of Chancellor Kent.

427-Cession of territory involved in the Northeastern Boundary settlement of 1842. 428-Detailed list of specific acts done under treaties impossible owing to number and variety.

429-State legislation as controlled by treaty stipulations. 430-Commercial regulations always the subject of treaties.

431-Six subjects to be considered in this chapter classified. 432-Wide extent of treaty-making power exercised in regard to Extradition, but from its frequent occurrence no longer a matter of comment.

433-Power of Executive to extradite without treaty. 434-Power of Executive to extradite under treaty but without legislation. 435-Power of Congress to extradite in absence of treaty.

extradition from the United States.

437–Rights of persons extradited to the United States. 438-General summary of views

in regard to extradition as depending on treaty. 439-Treaties of cession and extent of power exercised. 440-Effect of special clauses in Treaty of Paris on status of inhabitants.

441-Effect of special stipulations in treaties of cession. 442-The exercise of the right of eminent domain under the treaty-making power. 443-Claims against foreign gov

ernments as property rights; Justice Story's opinion in Comegys vs. Vasse.

444-Methods of enforcing claims of this nature; courts and commissions; National and individual claims distinguished.

445-Wide extent of this power both as to claims of citizens and of States; fishery treaties with Great Britain as they affect State ownership of fisheries. 446-Limitations on Congress as to trade-marks. 447-Regulation and protection of trade-marks by treaty.

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424. Specific instances in which the treaty-making power has been exercised to be reviewed, before discussing its limitations.-The next and final chapter of this volume will be devoted to discussing whether there are any limitations upon the treaty-making power of the United States, and if so, what those limitations are.

That general subject, however, can only be discussed in an academic manner, as no limitations have actually been placed upon the power either by the Constitution, as expressed in that instrument, or by the Judicial department of the Government, as expressed in the decisions of any of the adjudicated cases involving this question.

Before proceeding, therefore, to that discussion, it will be proper to refer to some specific instances in which the treatymaking power has been exercised to an extraordinary extent. Possibly the deductions which can be drawn from the extent and manner of the exercise of that power in the past with the acquiescence of all the departments of the Government, Executive, Legislative, and Judicial, as well as of the States and the people, may be of material aid in the final discussion as to whether or not any limitations do exist, and if so, what they are, and how they can be ascertained and defined.

§ 425. Justice Field's opinion in Geofroy vs. Riggs again referred to. In the case of Geofroy vs. Riggs,1 already referred to, the Supreme Court, speaking through Mr. Justice Field, declared that the treaty-making power of the United States extended to all subjects of negotiation between the Government thereof and the governments of other nations; $ 425. and see extract under § 335, p. 23, ante.

1 Geofroy vs. Riggs, U. S. Sup. Ct., 1890, 133 U. S. 258, FIELD J.,

that the power as expressed in the Constitution is in terms unlimited except by those restraints which are found in that instrument against the action of the government, or of its departments, and from those arising from the nature of the Government itself, and that of the States; but that it would not be contended that it extended so far as to authorize what the Constitution forbids, or a change in the character of the Government of the United States, or of one of the States, or the cession of any portion of the territory of the latter without its consent; in fact, the learned Justice, who had already decided many cases involving the treaty-making power of the United States, declared that with these exceptions he did not conceive that there were any limitations to that power touching matters which were properly the subject of negotiation with foreign countries.

§ 426. Justice Field's views compared with those of Chancellor Kent. It may be presumptuous on the part of the author of this volume to criticize such an eminent jurist as Stephen J. Field, but as his suggestion in regard to the limitation affecting the cession of any portion of the territory of a State is in direct contradiction with the opinion expressed by no less an authority than Chancellor Kent,' the author feels that he is at liberty to choose between the two, and that he can exercise the choice without being disrespectful to either. In expressing his own opinion, therefore, that the treaty-making power extends even beyond the limits assigned by Mr. Justice Field it is not for the purpose of criticizing a practically obiter remark in the opinion of that Justice (for no such cession was under consideration) but to express his affirmative approval of the position taken by Chancellor Kent, that, undoubtedly, the United States has power to make a treaty ceding territory of a State, even without the consent of that State, although it might be an exercise of wise political discretion to obtain the consent of the State before doing so. § 427. Cession of territory involved in the Northeastern Boundary settlement of 1842.-We shall refer in the subsequent chapter1 to the dispute over, and the settlement of, the § 426. $ 427.

For views of Chancellor Kent on this subject see § 474, post.

1 See §§ 474 et seq., post, for North. eastern boundary settlement.

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