AMERICAN INDIANS [§ 10 has been deterred from maintaining diplomatic relations with the Vatican since the loss by the Pope of temporal power. The nature of his relations with other States has not been a matter of concern to the United States. § 10. American Indians. (3) The American Indians have never been regarded as constituting persons or States of international law. Chief Justice Marshall, in 1821, thus described them: They may, more correctly, perhaps, be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession, when their right of possession ceases. Meanwhile they are in a state of pupilage. . . . They and their country are considered by foreign nations, as well as by ourselves, as being so completely under the sovereignty and dominion of the United States, that any attempt to acquire their lands, or to form a political connection with them, would be considered by all as an invasion of our territory and an act of hostility.2 Foreign States are not, therefore, concerned with the domestic relationship between the United States and its wards inhabiting its domain,3 and which is governed by its Constitution, and by American treaties and laws in accordance therewith.4 clergy, diocesan circumscriptions, the nominations of bishops, priests, etc. The conventions concluded with Protestant States are called Bulls of circumscription." Bonfils-Fauchille, 7 ed., § 896. 1 Mr. Fish, Secy. of State, to Mr. Cushing, Minister to Spain, June 4, 1875, For. Rel. 1875, 1119, Moore, Dig., I, 39; Mr. Bayard, Secy. of State, to Mr. Dwyer, Nov. 7, 1887, For. Rel. 1887, 642, Moore, Dig., I, 40. 2 Cherokee Nation v. Georgia, 5 Pet. 1, 17. See, also, Holden v. Joy, 17 Wall. 211; Jones v. Meehan, 175 U. S. 1, 10; Mr. Adams, Secy. of State, to Mr. Dallas, July 26, 1856, MS. Inst. Great Britain, Moore, Dig., I, 34–35. 3 It has been a matter of concern, however, to neighboring States that the control exercised by the United States over the American Indians was sufficient to prevent incursions by them into the territories of those States. Moore, Dig., II, 808-809, and documents there cited. In several of its early treaties with foreign States the United States agreed to provisions with respect to the Indians. See, for example, Art. III of the Jay Treaty of Nov. 19, 1794, Malloy's Treaties, I, 592; explanatory Article thereof, May 4, 1796, id., 607; Art. IX of the Treaty of Ghent of Dec. 24, 1814, id., 618; Art. V of the treaty with Spain of Oct. 27, 1795, id., II, 1642; Art. VI of the treaty with France of April 30, 1803, id., Í, 510; Art. XXXIII of treaty with Mexico of April 5, 1831, id., 1095. 4 See, generally, Moore, Dig., I, 30-39, and documents there cited. 2 THE EQUALITY OF INDEPENDENT STATES § 11. Observance of the Principle. In legal contemplation all independent States are regarded as equal, and the rights of each not deemed to be dependent upon the possession of power to insure their enforcement.1 Such States not only enjoy equality before the law, a possession shared also by dependent States, but also are entitled to claim, at least under normal circumstances and for most purposes, what has been tersely described as "equal capacity" for legal rights.2 The nature of the condition of independent States and the singleness of their class or status appear to justify such a pretension. American statesmen have constantly made it. There is, moreover, wide observance of this principle by the international society notwithstanding the circumstance that States differ widely with respect to material strength and political influence, and although some possess the power to control their weaker neighbors, and despite the fact that a certain small group is capable of enforcing its collective will throughout a great portion of the world. International law is concerned with the habit and disposition of enlightened 1 Declared Chief Justice Marshall, in The Antelope, 10 Wheat. 66, 122: "No principle of general law is more universally acknowledged, than the perfect equality of nations. Russia and Geneva have equal rights. It results from this equality, that no one can rightfully impose a rule on another. Each legislates for itself, but its legislation can operate on itself alone. A right, then, which is vested in all, by the consent of all, can be divested only by consent; and this trade [the slave trade with Africa], in which all have participated, must remain lawful to those who cannot be induced to relinquish it. As no nation can prescribe a rule for others, none can make a law of nations; and this traffic remains lawful to those whose governments have not forbidden it." 2 Edwin DeWitt Dickinson, The Equality of States in International Law, Cambridge, 1920, 3-5, 334-336. 8 While American statesmen have not always expressed with exactness the theories of State equality which they proclaimed, their utterances appear at times to have recognized the principle that rights of equality are the peculiar possession of States enjoying alike freedom from external control. See Mr. Root, Secy. of State, address before Third Conference of American Republics, at Río de Janeiro, July 31, 1906, contained in Latin America and The United States: Addresses by Elihu Root, collected and edited by Robert Bacon and James Brown Scott, Cambridge, 1917, 3, 10. Cf. American Institute of International Law: Declaration of the Rights and Duties of Nations (with official commentary), Washington, 1916; J. B. Scott, The American Institute of International Law: Its Declaration of the Rights and Duties of Nations, Washington, 1916. See Mr. Olney, Secy. of State, to Mr. Bayard, American Ambassador at London, July 20, 1895, with reference to the relation of the United States to other countries of the American continents, For. Rel. 1895, I, 545, 558. See infra, § 91. THE EQUALITY OF INDEPENDENT STATES [§ 11 States to refrain from uniting for lawless ends, and with the evidence of the practice tending to subordinate the exercise of power to the requirements of law. It is the restraints which from a sense of legal obligation enlightened States have endeavored to observe, and for which also they have by various processes undertaken to demand general respect, which establish the reality of the equality of independent powers, and justify constant reference to the fact. Nevertheless, the influence of the selfish designs of individual States, not only upon the attainment of political ends, but also upon the formulation of legal principle must not be ignored.1 Inasmuch as the number of independent States is large, and the interests of each are not identical, the attempt of any one to impose its theories upon the international society so as to rob its several members of their equal rights would doubtless fail. Should, however, a group of powerful States unite in such an endeavor, success might reward their effort; and if it did, numerous States which were previously independent would find themselves reduced to a condition of relative subordination. Whether, therefore, the international society is to remain a body composed principally of independent States enjoying equal rights, rather than become transformed into an organization comprising a series of groups of States of differing rank and unequal before the law, and in which rights of independence are the sole possession of a few powers belonging to the primary group, will depend upon whether there is sufficient inducement to create the necessary oneness of interest among those States which actually possess the power collectively to enforce their will.2 The practice of nations has revealed the fact that a State cannot be permitted to retain its independence after it has become 1 "When we come to formulate our foreign policies upon the belief that justice in the abstract is a dominant force in the regulation of world affairs, we are building on a foundation which, however desirable, is by no means certain. We must recognize the fact, unpalatable though it may be, that nations to-day are influenced more by selfishness than by an altruistic sentiment of justice. The time may come when the nations will change their present attitude throuh a realization that uniform justice in foreign as well as domestic affairs is te highest type of expediency; but that time has not yet come, and, if we are wise, we will not deceive ourselves by assuming that the policies of other Governments are founded on unselfishness or on a constant purpose to be just even though the consequences be contrary to their immediate interests." Robert Lansing, "Some Legal Problems of the Peace Conference", Reports of American Bar Association, 1919, XLIV, 238, 242-243. 2 It is not believed that the United States would acquiesce in any arrangement which contemplated the demotion in rank of an enlightened State on account of the narrow limits of its domain or the relative insignificance of its military establishment. impotent to fulfill the responsibilities incidental to its status. When it has sunk to such a condition, it forfeits the right thereafter to claim equality of treatment, and must anticipate in consequence at least a temporary subordination to some foreign power. It is perceived that the maintenance of justice is of greater concern to the international society than the continued independence of any member thereof; and justice among nations is obstructed and held in contempt whenever a State which loses its capacity or disposition to perform its common duties towards the outside world is long permitted to continue its existence without external restraint. This principle is believed to be relentless in its operation. 1 The establishment of a guardianship for such a State does not signify opposition to its interests, but rather an attempt to protect and preserve it for its own good as well as that of the international society, and with a view also to its ultimate restoration to a normal condition such as to justify its claim to the right to resume independence. TITLE B CLASSIFICATION OF STATES OF INTERNATIONAL LAW 1 STATES IN RELATION TO THEIR FREEDOM FROM EXTERNAL CONTROL a 12. In General. The chief concern of the international society respecting the character of a person or State of international law pertains to the degree of freedom from external control with which it conducts its foreign relations. Of less consequence is the method by which such a person or State came into being, or the cause which was productive of it, or the nature of its structure. To the family of nations whatever circumstances serve to deny to one of its members the right to deal as it may see fit with the outside world, or to exercise in other ways such rights of political independence as are the common possession of its freest members, must, however, remain a matter of importance.1 § 13. Independent States. b A State is independent when it is free from the control of any other State or States in the management of its domestic or foreign 1 "When it is proposed to place a community under the head of those which are capable of entering into some only of the relations with other States which are contemplated by international law, the only questions which require to be settled are whether its independence is in fact impaired, and if so, in what respects and to what degree. The nature of the bond derogating from independence which unites the community to another society is a matter, not of international, but of public law; because in so far as the former is identified with that society in its relations with other States, it is either a part of it, or in common with it is part of a composite State." Hall, Higgins' 7 ed., 23-24. |