§ 414. General rules as to effect of Indian treaties and statutes, and the construction of Indian treaties. It is not necessary to quote further from the opinion in this case; the principles established by it have been followed by the Court, and, notwithstanding the fact that treaties are no longer made with Indians, the general rules promulgated in in this case, but which have been enlarged by decisions in other cases, a few of which are cited in the notes,1 can be stated as follows: First. So long as the practice of making treaties with the Indians was continued, the treaties became, when ratified by the Senate, the supreme law of the United States in the same manner as treaties with foreign powers became the supreme law, and treaties were made and ratified practically as were treaties with foreign powers.2 Second. That treaties made with Indian tribes, and statutes enacted by Congress in pursuance thereof to make ually released, but not until over | SON, J., affirming Blacksmith vs. a year had elapsed after the Su- Fellows, N. Y. Ct. of App. 1852, 7 preme Court of the United States N. Y. 401, EDMONDS, J. had declared that the state law under which he was imprisoned was void and that he was entitled to his freedom. See Von Holst's Constitutional History of the United States, vol. I, p. 458, note. § 414. 1 A few cases only are cited under this section, as it is intended to cover the subject in a very superficial manner. The digests should be referred to for the numerous cases affecting the construction of Indian treaties. 2 The Cherokee Nation cases; see §§ 410-412, ante; The Cherokee Tobacco, U. S. Sup. Ct. 1870, 11 Wall. 616, SWAYNE, J. United States vs. 43 Galls. of Whiskey, U. S. Sup. Ct. 1876, 93 U. S. 188, DAVIS, J. Same case, 1883, 108 U. S. 491, FIELD, J. Fellows vs. Blacksmith, U. S. Sup. Ct. 1856, 19 Howard, 366, NEL Negotiations with Indians and the effect of Indian treaties and the right of the Indians to make treaties is discussed in the opinion at length. Brown vs. United States, U. S. Ct. Claims, 1897, 32 Ct. Claims Reps. 432, NOTt, J. United States vs. La Chappelle, U. S. Cir. Ct. Washington, 1897, 81 Fed. Rep. 152, HANDFord, J. In this case an Indian agreement was held invalid on the ground that the alleged treaty was made by the chief, but that his tribe had refused to ratify it, and that therefore the land assumed to be ceded by the treaty had never become a part of the public domain of the United States. See also cases in Court of Claims cited in notes to § 417, pp. 223, et seq., post. the treaties effectual, are paramount and superior to the laws of any State which conflicted therewith, in the same manner as treaties and laws in pursuance thereof with foreign powers are superior to State laws, and that during the exist 8 Bell's Gap Railroad Co. vs. Pennsylvania, U. S. Sup. Ct. 1889, 134 U. S. 232, BRADLEY, J., affirmed as to the point that a provision in a State law for the assessment of a State tax upon the face value of bonds instead of their nominal value violates no provision of the Constitution of the United States. Brown vs. Brown, Sup. Ct. N. C., 1890, 106 N. C., 451, DAVIS, J. It was decided in this case how far a State may settle the boundary lines within their own limits or reservations under United States and Indian treaties. The particular line in this case is known as the Holston Treaty Line and is referred to in many Indian treaties affecting land in Georgia and the Carolinas. Buffalo P. & R. Co. vs. Lavery, Y. Y. Sup. Ct., 5 Department, 1894, 75 Hun. 396, BRADLEY, J. As stated in the syllabus; "It is not within the legislative power of the State of New York to empower Indian nations to make, or others to take from them, grants or leases of lands within Indian reservations. "It is only pursuant to the Federal authority that lands belonging to an Indian reservation can be granted or demised or acquired by conveyance or lease from an Indian nation." And that a law of the State of New York authorizing railroad companies to contract with Indians for the right to construct railroads over their lands is not within the legislative power of the state. Cutler vs. Dibble, U. S. Sup. Ct. 1858, 21 Howard, 366, GRIER, J., affirming s. c., N. Y. Ct. of App. 1857, 16 N. Y. 203, BROWN, J., also cited as State of New York vs. Dibble. A state statute preventing intrusions on Indian lands was held not to be in violation of the Constitution of the United States or the treaties between the United States and the Seneca Indians. Danforth vs. Thomas, U. S. Sup. Ct. 1816, 1 Wheaton, 155, TODD, J. Love vs. Pamplin, U. S. Cir. Ct. Tenn, 1884, 21 Fed. Rep. 755, MATTHEWS, J. Lowry vs. Weaver, U. S. Cir. Ct. Ind. 1846, 4 McLean, 82. Held that Indians living in a state and doing business as merchants are responsible by the laws of the state for the payment of their debts, notwithstanding treaty reservations, and that lands reserved to them under a treaty may, under some circumstances, be made responsible for the payment of their debts notwithstanding such stipu tions. The New York Indians, U. S. Sup. Ct. 1866, 5 Wallace, 761, NELSON, J. The statute of a state authorizing the sale of lands for taxes laid by a State is void if it in any way conflicts with an Indian treaty, and that a sale under such tax is void so far as it affects the rights of the Indians to occupy the lands. Also the right of Indians to sell their lands discussed. Patterson vs. Jenks, U. S. Sup. Ct. 1829, 2 Peters, 216, MARSHALL, Ch. J. ence of the treaty all State legislation contravening such treaties is void unless enacted after statutes of the United States had nullified or modified the treaty.5 Third. That the rules applicable to the relative effect of treaties and statutes as they are generally stated in the preceding chapters are applicable alike to treaties with foreign powers and to treaties with Indians." Peck vs. Miami County Commissioners, U. S. Cir. Ct. Kans. 1876, 4 Dillon, 370, Fed. Cas. 10891, DILLON, J. Held that if an Indian had parted with his lands they were subject to State taxation. Pennock vs. Franklin County Commissioners, U. S. Sup. Ct. 1888, 103 U. S. 44, FIELD, J. Distinguishing the Kansas Indian case. Preston vs. Browder, U. S. Sup. Ct., 1816, 1 Wheaton, 115, TODD, J. State ex rel. Tompton vs. Donoyer, Sup. Ct. N. Dak. 1897, 6 N. Dak. Rep. 586, BARTHOLOMEW, J. Stevens vs. Thatcher, Sup. Ct. Me. 1897, 91 Maine, 70, EMERY, J. In an action involving treaty rights of Indians on White Squaw Island in the Penobscot, Maine, it was claimed that provisions in the treaties debarred the legislature from including any of the Penobscot islands above Old Town within any incorporated town; it was held that this could not be sustained. Wagoner vs. Evans, U. S. Sup. Ct. 1898, 170 U. S. 588, SHIRAS, J. Power of Territory of Oklahoma to tax cattle grazing on Indian Territory sustained. See extracts under § 379, p. 87, and § 386, p. 132, ante. Eastern Band of Cherokees vs. United States, U. S. Ct. Claims, 1885, 20 Ct. Claims, 449, RICHARDSON, Ch. J. (Affirmed sub nom. Cherokee Trust Funds, U. S. Sup. Ct., 1885, 117 U. S. 288, FIELD, J.) Article 8 of the syllabus is as follows: "The Cherokee Nation, as litigants, have a right to stand upon their treaties in relation to the funds in suit and neither an Act of Congress nor the proceedings of the political departments of the government can take away their vested rights guaranteed by treaty." See also cases under § 418, p. 225, post, involving land grants to railroads and Indian treaties. Eells vs. Ross, U. S. Cir. Ct. App. 9 Cir. 1894, 64 Fed. Rep. 417, McKENNA, J. Lattimer vs. Poteet, U. S. Sup. Ct. 1840, 14 Peters, 4, McLEAN, J. See extract from opinion in notes to § 473, post. United States vs. Carpenter, U. S. Sup. Ct. 1884, 111 U. S. 347, FIELD, J. A land patent was deWau-pe-man-qua vs. Aldrich, U.clared void under the rights of the Indians acquired under the Sioux treaty of 1859. S. Cir. Ct. Indiana, 1886, 28 Fed. 4 Cases should all be examined carefully to see in what cases, and under what circumstances State laws have been sustained. United States vs. Hunter, U. S. Cir. Ct. Mo., 1884, 21 Fed. Rep. 615, BREWER, J. United States vs. Le Bris, U. S. Ward vs. Race Horse, U. S. Sup. Sup. Ct., 1887, 121 U. S. 278. Ct. 1896, 163 U. S. 504, WHITE, J. | WAITE, Ch. J. Fourth. That while the treaty-making power so long as it was exercised with Indians was in many respects similar to the power as exercised with foreign nations, the rules applicable to the construction of treaties with Indians are in some respects different from those applicable to treaties, with foreign powers, because of that superiority of the United States Government to the Indian tribes, which does not exist as to any foreign powers, must necessarily be taken into consideration, and the fact that the relationship of the Indians to the United States is that of ward and guardian must be considered as an element of vital importance in the construction of treaty stipulations. United States with the Indian tribes ever since the Union was formed, of which numerous examples are to be found in the seventh volume of the public statutes. Cherokee Nation vs. Georgia, 5 Peters, 17; Worcester vs. Georgia, 6 Id. 543. "One of the latest utterances of | vs. Rogers, 4 Howard, 567. Indeed, the Supreme Court on the construc- treaties have been made by the tion of Indian treaties was delivered in 1899 in a case involving the meaning of a clause reserving certain sections for the chief of the tribe with which the treaty was made. The syllabus states: "A treaty between the United States and an Indian tribe must be construed, not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians." Jones vs. Meehan, U. S. Sup. Ct. 1899, 175 U. S. 1, GRAY, J. Holden vs. Joy, U. S. Sup. Ct. 1872, 17 Wall. 211, Clifford, J. This is a long and complicated case involving the construction of numerous treaties and statutes made with and affecting the lands of the Cherokee Indians. The general law in regard to treaties between the United States and the Indians and the right to make the same is referred to at page 242, as follows: "Valid treaties were made by the President and Senate during that period with the Cherokee nation, as appears by the decision of this court in several cases. U. S. Indian tribes are States, in a certain sense, though not foreign States or States of the United States within the meaning of the second section of the third article of the Constitution, which extends the judicial power to controversies between two or more States, between a State and citizens of another State, between citizens of different States, and between a State or the citizens thereof and foreign States, citizens, or subjects. They are not States within the meaning of any one of those clauses of the Constitution, and yet in a certain domestic sense, and for certain municipal purposes, they are States, and have been uniformly so treated since the settlement of our country and throughout its history, and numerous treaties made with them recognize them as a people capable of maintaining the relations of peace and war, of being § 415. Unique status of Indian tribes, and peculiar relations between them and United States.-Briefly stated, responsible, in their political char- | land agent; and of Beck vs. Real acter, for any violation of their Estate Co., U. S. Cir. Ct. App. engagements, or for any aggression 8th Cir. 1894, 65 Fed. Rep. 30, committed on the citizens of the THAYER, J. United States by any individual of In this case it was held that when their community. Laws have been Indians were made citizens it did enacted by Congress in the spirit not necessarily remove the limitaof those treaties, and the acts of tions of alienation which had been our government, both in the exec-imposed by treaty and statute. utive and legislative departments, plainly recognize such tribes or nations as States, and the courts of the United States are bound by those acts. Doe vs. Braden, 16 Howard, 635; Fellows vs. Blacksmith, 19 Id. 372; Garcia vs. Lee, 12 Peters, 519. 66 Express power is given to the President, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur, and inasmuch as the power is given, in general terms, without a description of the objects intended to be embraced within its scope, it must be assumed that the framers of the Constitution intended that it should extend to all those objects which in the intercourse of nations had usually been regarded as the proper subjects of negotiation and treaty, if not inconsistent with the nature of our government and the relation between the States and the United States. Holmes vs. Jennison et al., 14 Peters, 569; 1 Kent, 166; 2 Story on the Constitution, sec. 1508; 7 Hamilton's Works, 501; Duer's Jurisprudence, 229." United States vs. Flournoy, etc., Co., U. S. Cir. Ct. Neb. 1896, 71 Fed. Rep. 576, SHIRAS, J. This is the same case as reported under title of Flournoy, etc., Co. vs. Beck, Beck being the United States In regard to the court taking judicial notice of treaties with Indians the opinion says (p. 578): "The courts of the United States take judicial notice not only of the public acts of congress and of the legislatures of the several states of the union, but also of the rules and regulations prescribed by the several departments for the transaction of the public business (Caha vs. U. S., 152 U. S. 211, 14 Sup. Ct. 513); also of the territorial extent of the jurisdiction exercised by the government whose laws they execute; also of the acts of the executive branch of the government, in the enforcement of the treaties or public laws of the country (Jones vs. U. S., 137 U. S. 202, 214, 11 Sup. Ct. 80); also of all matters of general history or of public notoriety; also of the official character of persons appointed by the president or heads of the departments or of the bureaus therein for the performance of duties created by acts of congress (Brown vs. Piper, 91 U. S. 37; Keyser vs. Hitz, 133 U. S. 138 to 145, 10 Sup. Ct. 290.)" The court then proceeds to discuss the relations between the Indians and the United States Government under the treaties involved in this case. United States vs. Foster, U. S. Cir. Ct. Wisconsin 1870, 2 Bissell, |