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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
impair the obligation of any treaty 1 The contingent expenses of the heretofore lawfully made and ratiSenate Deficiency Bill approved fied with any such Indian nation March 29th, 1867, 15 U.S. Stat. at L. or tribe.” p. 7, contained the following pro U. S. Rev. Stat. title XXVIII, vision (p. 9):
INDIANS, chap. 2. “And all laws allowing the Pres “Performance of engagements beident, the Secretary of the Interior, tween the United States and Inor the Commissioner of Indian Af- dians. No future treaties with fairs to enter into treaties with any Indian tribes. Sec. 2079. No InIndian tribes are hereby repealed, dian nation or tribe within the terand no expense shall hereafter be ritory of the United States shall be incurred in negotiating a treaty acknowledged or recognized as an with any Indian tribe until an ap- independent nation, tribe, or power propriation authorizing such ex- with whom the United States may pense shall be first made by law." contract by treaty; but no obligaFour months later this provision tion of any treaty lawfully made was repealed by an act passed and ratified with any such Indian specially for the purpose, July 20, nation or tribe prior to March third, 1867, 15 U. S. Stat. at L. p. 18. eighteen hundred and seventy-one,
The Indian Appropriation Act shall be hereby invalidated or imfor the year ending June 30, 1872, paired. (3 Mar., 1871, c. 120, s. 1, approved March 3, 1871, (16 U. S. v. 16, p. 566. 22 June, 1874, c. 389, Stat. at L. p. 544) contained the s. 3, v. 18, p. 176. 10 June, 1876, following provision (p. 566): c. 122, v. 19, p. 58.)
“ Provided, That hereafter no In " Abrogation of treaties. Sec. dian nation or tribe within the ter- 2080. Whenever the tribal orritory of the United States shall be ganization of any Indian tribe acknowledged or recognized as an is in actual hostility to the United independent nation, tribe, or power States, the President is authorized, with whom the United States may by proclamation, to declare all contract by treaty: Provided, fur- treaties with such tribe abrogated ther, That nothing herein contained by such tribe, if in his opinion the shall be construed to invalidate or same can be done consistently with
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 4 United States vs. Kaganna, U. S. obligations."
Sup. Ct. 1886, 118 U. S. 375, MIL2“The Congress shall have Power LER, J. "These Indian tribes are
To regulate Commerce with the Wards of the Nation. They are foreign Nations, and among the communities dependent on the Uniseveral States, and with the Indian ted States." And see extract from Tribes.” Const. U. S. Art I, $8, opinion in this case in note to $ 419, cl. 3.
pp. 226, et seq., post. 3 See Chap. IV, especially $ 133, 5 See cases under $ 409, p. 204, vol. I, pp. 232, et seq.
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
it seems to be both prudent and 1 Special message (pp. 61-62, reasonable that their acts should vol. 1, Richardson's Messages). not be binding on the nation until
approved and ratified by the Gov"September 17, 1789.
ernment. It strikes me that this “Gentlemen of the Senate:
point should be well considered and “It doubtless is important that settled, so that our national proall treaties and compacts formed by ceedings in this respect may bethe United States with other na- come niform and be directed by tions, whether civilized or not, fixed and stable principles. should be made with caution and “The treaties with certain Indian executed with fidelity.
nations, which were laid before “It is said to be the general un- you with my message of the 25th derstanding and practice of nations, May last, suggested two quesas a check on the mistakes and in- tions to my mind, viz: First, discretions of ministers or com- whether those treaties were to be missioners, not to consider any considered as perfected and contreaty negotiated and signed by sequently as obligatory without such officers as final and conclusive being ratified. If not, then secuntil ratified by the sovereign or ondly, whether both or either, and Government from whom they which, of them ought to be ratified. derive their powers. This prac- On these questions I request your tice has been adopted by the United opinion and advice. States respecting their treaties “You have, indeed, advised me with European nations, and I am to execute and enjoin an obserinclined to think it would be advance of the treaty with the Wyanvisable to observe it in the conduct dottes, etc. You, gentlemen, of our treaties with the Indians; doubtless intended to be clear and for though such treaties, being on explicit, and yet, without further their part made by their chiefs or explanation, I fear I may misunderrulers, need not be ratified by them, stand your meaning, for if by my yet, being formed on our part by executing that treaty you mean that the agency of subordinate officers, 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
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 See also various collections of that I am to see that it be carried Indian laws and treaties at differinto effect and operation, then I am ent dates or referring to particuled to conclude either that you con- lar tribes and the following comsider it as being perfect and ob- pilations made prior to 1873. ligatory in its present state, and, Indian treaties, and laws and therefore to be executed and ob-regulations relating to Indian served, or that you consider it as affairs, to which is added an apto derive its completion and ob-pendix, containing the proceedligation 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 to Indian affairs. Compiled and imply. Although I am inclined to published under orders of the Dethink that the latter is your inten-partment of War of 9th of February tion, yet is certainly is be that all and 6th of October, 1825, Washingdoubts respecting it be removed. ton City: Way & Gideon, Printers,
“ Permit me to observe that it 1826. will be proper for me to be informed The Public Statutes at Large of of your sentiments relative to the the United States of America, from treaty with the Six Nations previ- tho organization of the government ous to the departure of the gov- in 1789, to March 3, 1845. By ernor of the Western territory, and authority of Congress. Arranged therefore I recommend it to your in chronological order with referearly consideration.
ences to the matter of each act and GO. WASHINGTON." to the subsequent acts on the same
subject, and copious notes of the $ 405.
decisions of the Courts of the 1A compilation of all the trea- United States construing those ties between the United States and acts, and upon the subjects of the the Indian tribes now in force as laws. With an index to the conlaws, prepared under the provisions tents of each volume, and a full of the act of Congress, approved general index to the whole work, March 3, 1873, entitled " An act to in the concluding volume, together provide for the preparation and with the Declaration of Independpresentation to Congress of the re- ence, the Articles of Confederation vision of the laws of the United and the Constitution of the United States, consolidating the laws relat- States; and also, tables, in the last to the post-roads, and a code re- volume, containing lists of the acts lating to military offenses, and the 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 arge, 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.