that either the United States, or the several States, had a clear title to all the lands within the boundary lines described in the treaty, subject only to the Indian right of occupancy, and that the exclusive power to extinguish that right was vested in that government which might constitutionally exercise it.

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 power now possessed by the Government of the United States to grant lands, resided, while we were colonies, in the Crown or its grantees. The validity of the titles given by either has never been questioned in our courts. It has been exercised uniformly over territory in possession of the Indians. The existence of this power must negative the existence of any right which may conflict with or control it. An absolute title to lands can not exist at the same time in different persons or in different governments. An absolute must be an exclusive title, or at least a title which excludes all others not compatible with it. All our institutions recognize the absolute title of the Crown, subject only to the Indian right of occupancy, and recognize the absolute title of the Crown to extinguish that right. This is incompatible with an absolute and complete title in the Indians. However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear, if the principle has been asserted in the first instance and afterward sustained; if a country has been acquired and held under it, if property of the great mass of the community originates in it, it becomes the law of the land, and can not be questioned. So, too, with respect to the concomitant principle that the Indian inhabitants are to be considered merely as occupants, to be protected, indeed, while in peace, in the possession of their lands, but to be deemed incapable of transferring the absolute title to others. However this restriction may be opposed to natural right and to the usages of civilized nations, yet, if it be indispensable to that system under which the country has been settled, and be adapted to the actual condition of the two people, it may, perhaps, be supported by reason, and certainly can not be rejected by courts of justice.1

One uniform rule seems to have prevailed in the British provinces in America by which Indian lands were held and sold from their first settlement, as appears by their laws; that friendly Indians were protected in the possession of the lands they occupied, and were considered as owning them by a perpetual right of possession in the tribe or nation inhabiting them as their common property from generation to generation, not as the right of the individuals located on particular spots. Subject to this right of possession the ultimate fee was in the Crown and its grantees, which could be granted by the Crown or colonial legislatures, while the lands remained in possession of the Indians, though possession could not be taken without their consent. (United States v. Clark, 9 Peters, 168.)

The colonial charters, a great portion of the individual grants by the proprietary and royal governments, and a still greater portion by the States of the Union after the Revolution, were made for lands within the Indian hunting-grounds. North Carolina and Virginia, to a great extent, paid their officers and soldiers of the Revolutionary War by such grants, aud extinguished the arrears due the Army by similar means. It was one of the great resources which sustained the war, not only by those States but by other States. The ultimate fee incumbered with the right of Indian occupancy, was in the Crown previous to the Revolution and in the States of the Union afterwards, and subject to grant. This right of occupancy was protected by the political power and respected by the courts until extinguished, when the patentee took

18 Wheaton, 543.

the unincumbered fee. So the Supreme Court and the State courts have uniformly held. (Clark v. Smith, 13 Peters, 195.)

The treaties and laws of the United States contemplate the Indian Territory as completely separated from that of the States, and provide that all intercourse with them shall be carried on exclusively by the Government of the Union. (Worcester v. The State of Georgia, 6 Peters, 515.)

*

The Constitution states: The President" shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur." Article II, section 2. (See United States Statutes at Large, Vol. I, p. 17.) The treaty-making power was not limited by its terms, as the authority to make a treaty with the Indian tribes was one which the treaty-making power derived from a source higher than an act of Congress, to wit, the Constitution. ** This treatymaking power could make a sale or grant of land without an act of Congress. It could lawfully provide that a patent should issue to convey lands which belong to the United States without the consent of Congress, and in such case the grantee would have a good title. (Holden v. Joy, 17 Wallace, 247; United States v. Brooks, 10 Howard, 442; Meigs v. McClung, 9 Cranch, 11.) Congress has no constitutional right to interfere with rights under treaties, except in cases purely political. (Holden v. Joy, 17 Wallace, 247; Wilson v. Wall, 6 Wallace, 89; Insurance Company v. Carter, 1 Peters, 542; Doe v. Wilson, 23 Howard, 461; Mitchel v. United States, 9 Peters, 749; The Kansas Indians, 5 Wallace, 737; 2 Story on Constitution, section 1508; Foster c. Neilson, 2 Peters, 254; Crews v. Burcham, 1 Black, 356; Worcester v. Georgia, 6 Peters, 562; Blair r. Pathkiller, 2 Yerger, 407; Harris v. Burnett, 4 Blackford, 369.)

By their treaties the Indians on their part ceded to the United States, and opened for settlement and occupation by the whites, large tracts of land in which they claimed and had been allowed proprietary rights. The tracts of country to which this claim of the Indians has thus been recognized covers, speaking roughly, and excluding Alaska, all the territory of the United States outside of the thirteen original States, and a considerable portion of the latter. The Indians generally agreed to settle and remain upon reservations from which white intruders were to be rigidly excluded, and in all cases bound themselves to remain at peace with the whites, and to trade with persons appointed by the United States.

On the part of the Government, in consideration of these cessions and agreements by the Indians, provisions for their benefit varying in character, amount, and form were guaranteed. In some treaties this consideration took the form of an annuity payment in specie, either for a term of years or perpetually; in others, rations and clothing, besides agricultural implements, facilities for education, instruction in agriculture and other arts of civilization.'

The first of these treaties was negotiated with the Six Nations, August 25, 1775.2 Ten others were made with as many different tribes prior to the Federal Constitution going into effect in 1789. The last Indian treaty was proclaimed August 27, 1870. The total number of treaties from 1775 to 1871 was six hundred and forty-five.3

By act of March 3, 1885, it is provided by section 14—

That the treaties made during the present Congress, with the Indian tribes, and those to be made in future, shall be published as the laws and other treaties in the 15 Dillon, 409. 2 American Archives, 4th series, Vol. III, column 1, 924. 3 Report Indian Commissioners, 1881, pp. 316-324.

newspapers of such States and Territories as the Secretary of the Interior may think expedient. (United States Statutes at Large, Vol. X, p. 671.)

An act of Congress approved March 3, 1871, provides "that hereafter no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty." Since that time agreements, substantially like treaties, have been made with different tribes, subject to the approval of both branches of Congress.

In some instances where Indians, either because of their remote situation or for other reasons, have never entered into treaty relations with the United States, or where treaty provisions have expired by limitation, aid and assistance are furnished by the Government.

The act of July 13, 1787, entitled "An ordinance for the government of the territory of the United States northwest of the river Ohio," provides, in article 3:

The utmost good faith shall always be observed towards the Indians; their land and property shall never be taken from them without their consent; and in their property, rights, and liberty they never shall be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity shall from time to time be made for preventing wrongs being done to them and for preserving peace and friendship with them.2

This ordinance was confirmed by act of August 7, 1789, only such governmental provisions being made "as to adapt the same to the pres

ent Constitution."3

The acts organizing the Territories of Indiana in 1800, Michigan in 1805,5 Illinois in 1803, each contained an article referring to the ordinauce of July 13, 1787, and its provision concerning the inhabitants of the territory northwest of the Ohio. When Mississippi, by act of December 10, 1817, and Alabama, by act of December 14, 1819, were admitted as States into the Union their constitutions and State governments were declared to be in conformity to the principles of the ordinance of July 13, 1787.

The act of April 20, 1836, establishing a territorial government for the Territory of Wisconsin, provides, in section 1:

That nothing in this act contained shall be construed to impair the rights of person or property now appertaining to any Indians within the said Territory so long as such rights shall remain unextinguished by treaty between the United States and such Indians, or to impair the obligations of any treaty now existing between the United States and such Indians, or to impair or anywise to affect the authority of the Government of the United States to make any regulations respecting such Indians, their lands, property, or other rights, by treaty or law or otherwise, which it would have been competent to the Government to make if this act had never been passed.9

10

A similar provision was inserted in the act of June 12, 1838, establishing the Territory of Iowa, and it was seemingly implied in section 2 Ibid, Vol. I, p. 52, part 3. 7 Ibid.,

1 United States Statutes at Large, Vol. XVI, p. 566.

3 Ibid., p. 50.

Vol. III, p. 472.

4

Ibid., Vol. II, p. 58.
8 Ibid., p. 603.

Ibid., p. 308.

Ibid., p. 514.

12' of the act of March 3, 1849, organizing the Territory of Minnesota. The act of August 14, 1848, organizing the Territory of Oregon contains the same provision, with the exception of the foregoing italicized lines. The same provision is inserted in the acts organizing the Territories of Kansas and Nebraska in 1854, Colorado, Dakota, and Nevada in 1861, Idaho in 1863, Montana in 1864, and Wyoming in 1868.8 No such provision appears in the acts authorizing the Territories of Kentucky, Tennessee, Missouri, Arkansas, New Mexico, Utah, Arizona, and Washington.

In the treaty of April 30, 1803, between the United States and France for the purchase of the tract west of the Mississippi known as Louisiana, article 6 provides:

The United States promise to execute such treaties and articles as may have been agreed between Spain and the tribes and nations of Indians, until, by mutual consent of the United States and the said tribes or nations, other suitable articles shall have been agreed upon."

The Indians living within the present limits of Arizona, California, Nevada, New Mexico, and Utah come under the provisions of the treaty of Guadalupe Hidalgo, concluded with the Republic of Mexico, February 2, 1848, and that of the Gadsden purchase of June 30, 1854. The articles containing the provisions are as follows:

Treaty of Guadalupe Hidalgo.—(Art. 8.) Those who shall prefer to remain in the said Territories may either retain the title and rights of Mexican citizens, or aquire those of citizens of the United States. But they shall be under the obligation to make their election within one year from the date of the exchange of ratifications of this treaty; and those who shall remain in the said Territories after the expiration of that year, without having declared their intention to retain the character of Mexicans, shall be considered to have elected to become citizens of the United States.

In the said Territories, property of every kind, now belonging to Mexicans not established there, shall be inviolably respected. The present owners, the heirs of these, and all Mexicans who may hereafter acquire said property by contract, shall enjoy with respect to it guarantees equally ample as if the same belonged to citizens of the United States.

(Art. 9.) The Mexicans who, in the Territories aforesaid, shall not preserve the character of citizens of the Mexican Republic, conformably with what is stipulated in the preceding articles, shall be incorporated into the Union of the United States, and be admitted at the proper time (to be judged of by the Congress of the United States) to the enjoyment of all rights of citizens of the United States, according to the principles of the Constitution; and in the mean time shall be maintained and protected in the free enjoyment of their liberty and property, and secured in the free exercise of their religion without restriction.

(Art. 10.) [Stricken out.]

(Art. 11.) Considering that a great part of the Territories, which by the present treaty are to be comprehended for the future within the limits of the United States, is now occupied by savage tribes, who will hereafter be under the exclusive control of the Government of the United States, and whose incursions within the territory of Mexico would be prejudicial in the extreme, it is solemnly agreed that all such incursions shall be forcibly restrained by the Government of the United States whenUnited States Statutes at Large, Vol. IX, p. 407. 2 Ibid., Vol. X, p. 277. 3 Ibid. Vol. XII, p. 172. 4 Ibid., p. 239. 5 Ibid., p. 210. 7 Ibid., Vol., XIII, p. 86.. 8 Ibid., Vol. XV, p. 178.

6

Ibid., p. 808.
Ibid., Vol. VIII, p. 202.

soever this may be necessary; and that when they can not be prevented they shall be punished by the said Government, and satisfaction for the same shall be exactedall in the same way, and with equal diligence and energy, as if the same incursions were meditated or committed within its own territory against its own citizens.

It shall not be lawful, under any pretext whatever, for any inhabitant of the United States to purchase or acquire any Mexican, or any foreigner residing in Mexico, who may have been captured by Indians inhabiting the territory of either of the two Republics; nor to purchase or acquire horses, mules, cattle, or property of any kind stolen within Mexican territory by such Indians.

And in the event of any person or persons, captured within Mexican territory by Indians, being carried into the territory of the United States, the Government of the latter engages and binds itself, in the most solemn manner, so soon as it shall know of such captives being within its territory, and shall be able so to do, through the faithful exercise of its influence and power, to rescue them and return them to their country, or deliver them to the agent or representative of the Mexican Government. The Mexican authorities will, as far as practicable, give to the Government of the United States notice of such captures; and its agents shall pay the expenses incurred in the maintenance and transmission of the rescued captives, who, in the mean time, shall be treated with the utmost hospitality by the American authorities at the place where they may be. But if the Government of the United States, before receiving such notice from Mexico, shall obtain intelligence, through any other channel, of the existence of Mexican captives within its territory, it will proceed forthwith to effect their release and delivery to the Mexican agent, as above stipulated.

For the purpose of giving to these stipulations the fullest possible efficacy, thereby affording the security and redress demanded by their true spirit and intent, the Government of the United States will now and hereafter pass, without unnecessary delay, and always vigilantly enforce, such laws as the nature of the subject may require. And, finally, the sacredness of this obligation shall never be lost sight of by the said Government when providing for the removal of the Indians from any portion of the said Territories, or for its being settled by citizens of the United States; but, on the contrary, special care shall then be taken not to place its Indian occupants under the necessity of seeking new homes, by committing those invasions which the United States have solemnly obliged themselves to restrain.1

Protocol. (1) The American Government by suppressing the ninth article of the treaty of Guadalupe Hidalgo and substituting the third article of the treaty of Louisiana did not intend to diminish in any way what was agreed upon by the aforesaid article 9 in favor of the inhabitants of the Territories ceded by Mexico. Its understanding is that all of that agreement is contained in the third article of the treaty of Louisiana. In consequence, all the privileges and guarantees-civil, political, and religious-which would have been possessed by the inhabitants of the ceded territories if the ninth article of the treaty had been retained, will be enjoyed by them, without any difference, under the article which has been substituted.

(2) The American Government by suppressing the tenth article of the treaty of Guadalupe did not in any way intend to annul the grants of lands made by Mexico in the ceded Territories. These grants, notwithstanding the suppression of the article of the treaty, preserve the legal value which they may possess, and the grantees may cause their legitimate [titles] to be acknowledged before the American tribunals. 1 United States Statutes at Large, Vol. IX, pp. 929–932.

Art. 3. Treaty of cession between the United States and the French Republic, April 30, 1803. The inhabitants of the ceded territory shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages, and immunities of citizens of the United States; and in the mean time they shall be maintained and protected in the free enjoyment of their liberty, property, and the religion which they profess. (United States Statutes at Large, Vol. VIII, p. 202)