to the States the control of such of them as live within their territorial limits. To this the Supreme Court had no better answer to give than expediency-always a poor, if not an absolutely invalid argument. "The power of the General Government over these remnants of a race once powerful, now weak and diminished in numbers," it said, "is necessary to their protection, as well as to the safety of those among whom they dwell." Upon this argument the exclusive jurisdiction of the Federal Government over the negroes might be justified.

At various times during past years, Congress has declared, as to particular Indian tribes, that their lands should be divided and held in severalty by their respective members, and that, thereupon, such Indians should become citizens of the United States, and pass immediately from the exclusive jurisdiction of the Federal Government to that of the States in which they reside. In 1887, by the General Land in Severalty Law, known as the "Dawes Act," the President was given the power to apply this process to practically every Indian reservation in the country. The peculiarity of these acts is, it will be observed, that it makes citizens of Indians against their will. The action is taken at the discretion of the President and citizenship is the result.1

1 The Dawes Act also provides for allotments of land and citizenship to Indians who may wish to settle upon the public lands of the United States. It also declares that all Indians forsaking their tribal life and adopting the habits of civilized life shall become citizens. Without this express statutory provision, as was decided in Elk v. Wilkins, citizenship could not thus be obtained.

For legislation further subjecting the Indians to the control of the federal courts, see the act of January 1, 1898.

The peculiar status of those Indians who have not become citizens is illustrated in the form of a letter of protection issued, in lieu of a passport, to those traveling abroad. The following is a letter issued by our consul at Odessa, the form of which has been approved by the State Department:

"To whom it may concern:

"The bearer of this document is a North American Indian whose name is Hampa. This Indian is a ward of the United States, and is entitled to the protection of its consular and other officials. He is not, however, entitled to a passport, as he is not a citizen of the United States. This consulate has the honor to request the Russian authorities to grant Hampa all necessary protection during his stay in Russia, and grant him permission to depart when he requires it.

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"Consul."

CHAPTER XVII

THE CITIZENSHIP OF INHABITANTS OF CEDED TERRITORIES

WHETHER or not the inhabitants of territories ceded by one nation to another necessarily have, according to the principles of International Law, the option of becoming citizens of the annexing State, or retaining their old citizenship, is a point upon which International Law writers do not seem to be fully agreed. Rivier, for instance, in his recent work, "Principes du Droit des Gens," declares that they have not-that unless expressly provided otherwise, they become, nolens volens, the subjects of the power to which their territory is united. Other text-book writers, Westlake and Halleck, for instance, claim that the treaty of cession being silent upon this point, an option. exists.1 Halleck declares: "The transfer of territory establishes its inhabitants in such a position toward the new sovereignty that they may elect to become, or not to become, its subjects. Their obligations to the former government are canceled, and they may or

1 This right of option as regards citizenship is not to be confounded with the right, by some alleged to exist, of the inhabitants to decide whether or not they will consent to a transfer of sovereignty over their territory to another power. Such a right has never been accepted by International Law writers, nor recognized by the United States in any of the annexations by it of new territories.

may not, become the subjects of the new government, according to their own choice. If they remain in the territory after this transfer, they are deemed to have elected to become its subjects, and thus to have consented to the transfer of their allegiance to the new sovereignty. If they leave, sine animo revertendi, they are deemed to have elected to continue aliens to the new sovereignty. The status of the inhabitants of the conquered and transferred territory is thus determined by their own acts. This rule is the most just, reasonable, and convenient which could be adopted. It is reasonable on the part of the conqueror, who is entitled to know who become his subjects and who prefer to continue aliens; it is very convenient for those who wish to become the subjects of the new State, and is not unjust toward those who determine not to become its subjects. According to this rule, domicile, as understood and defined in public law, determines the question of transfer of allegiance, or rather, is the rule of evidence by which that question is to be decided."

That, in the absence of treaty stipulations to the contrary, the citizenship of the inhabitants of cededterritory is to be determined by the rule thus stated, is generally admitted by American International Law writers, and has been more than once declared by the United States Supreme Court. In American Insurance Co. v. Canter, the Court said: "The same act which transferred their territory transfers the allegiance of those who remain in it;" and in Boyd v. Thayer (143 U. S., 135) it was declared that "the nationality of the inhabitants of territory acquired by

conquest or cession becomes that of the government under whose dominion they pass, subject to the right of election on their part to retain their former nationality by removal or otherwise as may be provided."

In all the treaties entered into by the United States whereby territory was acquired, prior to that of 1899 with Spain, it was provided either that the inhabitants of the ceded territories remaining therein should be admitted as soon as possible to the enjoyment of all the rights, advantages, and immunities of citizens of the United States, or that they should be "incorporated in the Union of the United States," or both. It cannot, however, be said with certainty as has been maintained by some, that it was due to these provisions that the inhabitants of the ceded territories were collectively naturalized, for this point has never been squarely passed upon by the Supreme Court. The undoubted purpose and the probable legal effect of these provisions was only to create an obligation on the part of the United States not to discriminate civilly against these peoples, and, when the conditions should warrant, to confer upon them full political privileges. The determination when this time had arrived was left to the discretion of Congress. Provisions similar to those of which we have been speaking are almost always inserted by all nations in treaties of cession at the instance of the ceding power, as a mere matter of equity, it being but just, in handing over to the control of another power citizens of its own, that, as far as possible, a State should obtain a guarantee that they shall not be civilly or politically oppressed.