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;1 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

same were recognized by international law had been exercised by Great Britain, France and Spain, and that the United

Thus, all the nations of Europe, who have acquired territory on this continent, have asserted in them-sons whatsoever, have, or ever had, selves, and have recognized in others, the exclusive right of the discoverer to appropriate the lands occupied by the Indians. Have the American States rejected or adopted this principle?"

States had succeeded to all their rights within the territory over which this Government exercised jurisdiction, and

"Our late acquisitions from Spain (Florida) are of the same character; and the negotiations which preceded those acquisitions, recognize and elucidate the principle which has been received as the foundation of all European title in America.

chartered limits different portions | both nations, was chiefly in the acof territory covered by Indians, tual occupation of Indians. ceded that territory, generally, to "The magnificent purchase of the United States, on conditions Louisiana, was the purchase from expressed in their deeds of ces-France of a country almost ension, which demonstrate the opin- tirely occupied by numerous tribes ion, that they ceded the soil as well of Indians, who are in fact indeas jurisdiction, and that in doing pendent. Yet, any attempt of so, they granted a productive fund others to intrude into that country, to the government of the Union. would be considered as an aggresThe lands in controversy lay within sion which would justify war. the chartered limits of Virginia, and were ceded with the whole country northwest of the river Ohio. This grant contained reservations and stipulations, which could only be made by the owners of the soil; and concluded with a stipulation, that all the lands in the ceded territory, not reserved, should be considered as a common fund, for the use and benefit of such of the United States as have become, or shall become, members of the confederation,' etc., 'according to their usual respective proportions in the general charge and expenditure, and shall be faithfully and bona fide disposed of for that purpose, and for no other use or purpose whatsoever.'

"The United States, then, have unequivocally acceded to that great and broad rule by which its civilized inhabitants now hold this country. They hold, and assert in themselves, the title by which it was acquired. They maintain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest; and gave also a right to such a degree of sovereignty, as the circumstances of the people would allow them to exercise."

"The ceded territory was occupied by numerous and warlike tribes of Indians; but the exclusive right of the United States to extinguish their title, and to grant the soil, has never, we believe, been doubted. "After these States became independent, a controversy subsisted between them and Spain respecting boundary. By the treaty of 1795, this controversy was adjusted, and Spain ceded to the United States the territory in question. This territory, though claimed by Mr. Justice Field.

This extract from the opinion expresses the view of the Supreme Court, but it is necessary to read the entire opinion in order to obtain a clear idea of the principles which were established by the decision in this case.

Beecher vs. Wetherby, U. S. Sup. Ct. 1877, 95 U. S. 517, FIELD, J. The doctrine announced in Johnson vs. McIntosh was reiterated by