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; 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.

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of the Interior, or the Commissioner of Indian Affairs to enter into treaties with any Indian tribes are hereby repealed, and no expense shall hereafter be incurred in negotiating a treaty with any Indian tribe until an appropriation authorizing such expense shall be first made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 Four months later this provision was repealed by an act passed specially for the purpose, July 20, 1867, 15 U. S. Stat.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

66

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.)

"Abrogation of treaties. Sec. 2080. Whenever the tribal organization of any Indian tribe is in actual hostility to the United States, the President is authorized, by proclamation, to declare all treaties with such tribe abrogated by such tribe, if in his opinion the same can be done consistently with

3

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 prac tice. 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.

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 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

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.

"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 un-you with my message of the 25th derstanding 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,

"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

§ 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 compilations made prior to 1873.

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 obligatory 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.

By

The Public Statutes at Large of the United States of America, from the organization of the government in 1789, to March 3, 1845. 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.