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$ 345. Numerous other decisions involving Chinese treaties and statutes. There have been numerous decisions arising out of both State and Federal legislation in regard to the immigration of Chinese into this country, and the regulation of their conduct after their arrival; it is impossible to analyze them all in this chapter, but a list of Chinese legislation cases will be found in the notes. It will well repay any one studying in detail questions regarding the extent to which the Federal treaty power can regulate State laws and municipal ordinances to carefully examine all of those opinions, as they are the carefully prepared utterances of some of our ablest jurists.

$346. Great practical advantages of Federal Judiciary as forum for settling disputes as to treaty rights.—Regardless of the legal results of those opinions, they bring prominently forward the great value to this country of the Federal Judiciary as the balance wheel that so regulates Federal and

considered with reference to the enactment, which in any respect condition of the country and exist- tends to sustain this allegation. ing legislation."

And the rule is general with referThe Chinamen complained that ence to the enactments of all legisthis ordinance was expressly aimed lative bodies that the courts cannot at them, but in regard to that the inquire into the motives of the legcourt said at the close of the opin- islators in passing them, except as ion, pp. 710–711:

they may be disclosed on the face “The principal objection, how- of the acts, or inferable from their ever, of the petitioner to the ordi-operation, considered with referDance in question is founded upon ence to the condition of the counthe supposed hostile motives of try and existing legislation. The the supervisors in passing it. The motives of the legislators, considpetition alleges that it was adopted ered as the purposes they had in owing to a feeling of antipathy and view, will always be presumed to hatred prevailing in the city and be to accomplish that which folcounty of San Francisco against lows as the natural and reasonable the subjects of the Emperor of effect of their enactments. Their China resident therein, and for the motives, considered as the moral purpose of compelling those en-inducements for their votes, will gaged in the laundry business to vary with the different members of abandon their lawful vocation, and the legislative body. The diverse residence there, and not for any character of such motives, and the sanitary, police, or other legitimate impossibility of penetrating into purpose. There is nothing, how the hearts of men and ascertaining ever, in the language of the ordi- the truth, precludes all such innance, or in the record of its 'quiries as impracticable and futile.

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State powers that although it may, at times, be necessary to assert one in order to curb the other, it can be done through the mediuin of courts presided over by impartial judges who can determine whether there has been an improper exercise of power on one side, or an attempt on the other to overthrow proper legal restraint; in no instance has the advantage of the Federal Judiciary been exhibited to a greater degree than in the settlement and adjustment of the questions arising out of the Chinese immigration and the legislative action of the States most affected thereby, as well as of the Congressional action of the United States, in regard thereto.

$ 347. Treaties with Indians ; Chief Justice Marshall's opinion as to their sanctity; Indian treaties and State laws.-Treaties with Indians, while they differ in some respects from treaties with foreign nations, have been held by Chief Justice Marshall to be entitled to the same consideration in regard to their construction, and to the same limitations in regard to legislative action as treaties with foreign powers. Decisions affecting treaties with Indians are, therefore, in many respects, of equal weight in regard to these points as those affecting treaties with foreign nations."

The treaty between the United States and the Bannock Indians gave the Indians certain rights to hunt on unoc cupied lands which afterwards became a part of the State of Wyoming. Game laws having been enacted in Wyoming, Race Horse, a Bannock Indian, was arrested for violating them. Judge Riner, in the United States Circuit Court held that, as the provisions of the State statute were inconsistent with the treaty, the statute could not be enforced against the Indians, as the treaty under the Constitution was paramount. Here was a direct conflict between the State and Federal officers in regard to a subject matter entirely under the control of the laws of the State. The cases And in the present case, even if tioned; and of this there is no the motives of the supervisors were pretence.” as alleged, the ordinance would not $ 347. be thereby changed from a legiti 1 See the Cherokee Indian cases mate police regulation, unless in referred to at length under $$ 408, its enforcement it is made to ope- et seq., of chap. XIV, post. rate only against the class men 2 In re Race Horse, U. S. Cir. Ct.


already referred to, as well as others, were referred to in Judge Riner's opinion. The right of the State to pass the laws was maintained, and it was conceded that “the State has the unquestioned right to pass laws placing restrictions and limitations upon the time and manner of taking wild game and fish.

The wisdom of such legislation is apparent,

but that these powers are subject to the right of the General Government to exercise the powers conferred upon it by the Constitution is perfectly clear.”

This case was subsequently reversed by the Supreme Court on the ground that certain provisions in the statute admitting Wyoming as a State had abrogated the treaty so far as they were in conflict therewith because it was a later expression of Congress and superseded all prior statutes and treaties. Reference will be made to that element of the decision in a subsequent chapter, but the point that a State law which violated the rights under treaties with Indians were void so long as the treaties remained in force was not affected by the reversal of the decision on the grounds taken by the Supreme Court. Indian treaties will be the subject of an entire chapter and only a casual reference is made at this point to the general effect of State laws and treaties.

$ 348. Decisions of State courts as to State laws and treaties.--The decisions referred to so far have been made

Wyoming, 1894, RINER, J., 70 Fed., nal value, violates no provision of
Rep. 598.

the Constitution of the United
8 Ward vs. Race Horse, U. S. Sup. States.
Ct. 1896, WHITE, J., 163 U. S. 504. The New York Indians vs. United
See p. 514 and see dissenting opin- States, Ct. Claims, 1895, 30 Ct.
ion, BROWN, J.

Claims, 413. 4 Some of the cases involving the The New York Indians, U. S. Sup. relative effect of State laws and In- Ct. 1866, 5 Wallace, 761, NELSON, J. dian treaties are here cited; others The statute of a State authorizwill be found under appropriate ing the sale of lands for taxes laid. sections of chapter XIV, post. by a State is void if it in any way

Taylor vs. Brown, U. S. Sup. Ct. conflicts with an Indian treaty, and 1893, 147 U. S. 640, FULLER, CH. J. any sale under such tax is void so

Bell's Gap Railroad Co. vs. Penn- far as it affects the rights of the sylvania, 134 U. S. 232, affirmed as Indians to occupy the lands. Also to the point that a provision in a the right of Indians to sell their State law for the assessment of a lands discussed. State tax upon the face value of Stevens vs. Thatcher, Sup. Ct. Me. bonds, instead of upon their nomi- | 1897, 91 Maine, 70, EMERY, J.


by the courts of the United States; it may be said that the natural trend of those courts is to expand the Federal power so as to prefer treaty stipulations to State statutes; it is not necessary, however, to rely exclusively upon utterances of the Federal Judiciary in this respect; there are numerous instances in which the State courts have recognized the supremacy of treaty stipulations over statutes of their own States.

A few instances in which the highest courts of States have recognized this supremacy will be given and an examination of the cases referred to in the notes will show that the State courts have not only recognized the force of the second clause of Article VI, of the Constitution, but have also recognized the advantages which have accrued to the States as the result of vesting the treaty-making power exclusively in the Central Government, as well as the fact that they have appreciated the necessity of giving the Federal Government the most complete power in order that it can best subserve the interests of the States.

$ 319. The rule in New York.-Alexander Hamilton was the first to recognize the sanctity of Federal Treaties, and their supremacy to State laws. Stanch patriot as he was, he maintained even at the threatened loss of his popularity, the rights of certain British land owners in New York City

In an action involving treaty, may, under some circumstances rights of Indians on White Squaw be made responsible for the payIsland in the Penobscot River, ment of their debts notwithstandMaine, it was claimed that provi- ing such stipulations. sions in the treaties debarred the Seneca Nation vs. Christie, N. Y. legislature from including any of Ct. App. 1891, 126 N. Y. 122, the Penobscot Islands above Old ANDREWS, J. Affirming same case, Town within any incorporated 49 Hun, 524, BRADLEY, J. Writ town; it was held that this could of error to the Supreme Court disnot be sustained.

missed, 1896, 162 U. S. 283, FULLowry vs. Weaver, U. S. Cir. Ct. LER, CH. J. Ind. 1846, 4 McLean, 82.

A full history is given in this acHeld, that Indians living in a tion of the relations of the Seneca State and doing business as mer- Indians with New York, Massachuchants are responsible by the laws setts and the United States. The of the State for the payment of principles laid down in Johnson vs. their debts, notwithstanding treaty McIntosh as to title followed,and the reservations, and that lands re- relations of the colonies and States served to them under a treaty with the Indians also discussed.

under the treatŷ, against persons who claimed possession of houses in that city under State statutes.

Judge Denio in the New York Court of Appeals? upheld the treaty-making power of the United States; the action involved the construction of a treaty with Indians, but he stated that the rule was similar to that which applied to all other treaties entered into by the United States, to-wit: that it became “a parcel of the paramount law and must prevail over all State laws.” Continuing he showed that the guarantees in the treaty were not limited to actions by the United States Government but extended equally to the acts or statutes of all the States and of citizens of the Union.

“ This results,” says the opinion, "from the nature of the treaty-making power and from the paramount authority which the Constitution attributes to federal treaties when it declares them to be the supreme law of the land. A treaty concluded by the President and Senate binds the nation in the aggregate and all its subordinate authorities and its citizens as individuals, to the observance of the stipulations contained in it. The principle has been asserted and established by repeated decisions of the Supreme Court of the United States. This (New York) State was, therefore, precluded from passing any laws which should disappoint or frustrate the guarantees afforded to the Seneca Nations by the treaties to which I have referred. Any act of the Legislature, the execution of which would dispossess the Indians of the reservations or any part of them, or which should materially disturb their occupancy, would, therefore, be illegal.”

Truscott vs. Hurlburt, L. & C. Co., claimants affected thereby, and his U. S. Cir. Ct. App. 9th Circuit, contention that the treaty protected 1896, 44 U. S. App. 248, Ross, J. the rights of his clients, see Mc

Love vs. Pamplin, U. S. Cir. Master's History of the People of Ct. Tenn. 1884, 21 Fed. Rep. 755, the United States, vol. I, chap. II, MATTHEWS, J.

pp. 125, et seq.; see also pamphlet $ 349.

of H. B. Dawson on same subject 1 Elizabeth Rutgers vs. Joshua referred to by McMaster. Waddington, Mayor's Court of the 2 Fellows vs. Denniston, N. Y. Ct. City of New York, August 7, 1784. of Appeals, 1861, 23 N. Y. Rep. For a full account of the passage of 420, DENIO, J. the New York Trespass Act and 3 Citing Ware vs. Hylton, 3 Dallas, Alexander Hamilton's appearance 199, Worcester vs. State of Georgia, and argument on behalf of British 16 Peters, 515.

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