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. Au 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 v. Neilson, 2 Peters, 254; Crews v. Burcham, 1 Black, 356; Worcester v. Georgia, 6 Peters, 562; Blair v. Pathkiller, 2 Yerger, 407; Harris r. 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 preveuting 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 1800,1 Michigan in 1805, Illinois in 1809, 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 govern ments were declared to be in conformity to the principles of the ordinance of July 13, 1787.

8

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 snch 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.o

A similar provision was inserted in the act of June 12, 1838, establishing the Territory of Iowa, and it was seemingly implied in section United States Statutes at Large, Vol. XVI, p. 566. 2 Ibid, Vol. 1, p. 52, part 3. * Ibid., Vol. II, p. 58. 5 Ibid., p. 308. Ibid., p. 514. 7 Ibid.,

3 Ibid., p. 50. Vol. III, p. 472.

Ibid., p. 608.

わ

Conformably to the law of the United States, legitimate titles to every description of property, personal and real, existing in the ceded Territories are those which were legitimate titles under the Mexican law in California and New Mexico up to the 15th of May, 1846, and in Texas up to the 2d of March, 1836.1

Gadsden purchase.- Treaty with Mexico, proclaimed June 30, 1854.

(Art. 5.) All the provisions of the eighth and ninth, sixteenth, and seventeenth articles of the treaty of Guadalupe Hidalgo shall apply to the territory ceded by the Mexican Republic in the first article of the present treaty, and to all the rights of persons and property, both civil and ecclesiastical, within the same, as fully and effectually as if the said articles were herein again recited and set forth.

(Art. 6.) No grants of land within the territory ceded by the first article of this treaty bearing date subsequent to the day-25th of September-when the minister and subscriber to this treaty on the part of the United States proposed to the Government of Mexico to terminate the question of boundary, will be considered valid or be recognized by the United States, or will any grants made previously be respected or be considered as obligatory which have not been located and duly recorded in the archives of Mexico.2

A considerable part of the territory occupied by Indian reservations is unfit for cultivation without irrigation; therefore the following legislation, touching water rights and privileges, is given:

An act changing the mode of surveying the public lands on any river, lake, bayou, or watercourse.3

Sec. 2407. Whenever, in the opinion of the President, a departure from the ordinary method of surveying land on any river, lake, bayou, or water-course would promote the public interest, he may direct the surveyor-general in whose district such land is situated, and where the change is intended to be made, to cause the lands thus situated to be surveyed in tracts of two acres in width, fronting on any river, bayou, lake, or water-course, and running back the depth of forty acres; which tracts of land so surveyed shall be offered for sale entire, instead of in half-quarter sections, and in the usual manner and on the same terms in all respects as the other public lands of the United States.*

An act granting the right of way to ditch and canal owners over the public lands, and for other purposes.

Sec. 9. And be it further enacted, That whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes aforesaid is hereby acknowledged and confirmed: Provided, however, That whenever, after the passage of this act, any person or persons shall, in the construction of any ditch or canal, injure or damage the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage.

Laws permitting Indians to take up public lands.-Under the act of August 4, 1854, entitled "An act to graduate and reduce the price of the public lands to actual settlers and cultivators," some Indians purchased land. (United States Statutes, Vol. X, p. 574.) By their treaty of July 31, 1855, the Chippewa Indians of Michigan were perThe Public Domain, 1883, p. 133. 2United States Statutes at Large, Vol. X, p. 3 Ibid., Vol. IV, p. 34. Revised Statutes of the United States, 2d edition, 1878, sec. 2407, p. 41. 5 United States Statutes at Large, Vol. XIV, p. 253.

1035.

mitted to receive their title to land so purchased without "actual occupancy or residence," in order to sell and dispose of the same. (United States Statutes, Vol. II, p. 627.)

By act of March 3, 1875, the Indians were permitted to homestead. The following is the law:

That any Indian born in the United States, who is the head of a family, or who has arrived at the age of twenty-one years, and who has abandoned, or may hereafter abandon, his tribal relatious, shall, on making satisfactory proof of such abandonment, under rules to be prescribed by the Secretary of the Interior, be entitled to the benefits of the act entitled "An act to secure homesteads to actual settlers on the public domain," approved May 20, 1862, and the acts amendatory thereof, except that the provisions of the eighth section of the said act shall not be held to apply to entries made under this act: Provided, however, That the title to lands acquired by any Indian by virtue hereof shall not be subject to alienation or incumbrance, either by voluntary conveyance or the judgment, decree, or order of any court, and shall be and remain inalienable for a period of five years from the date of the patent issued therefor: Provided, That any such Indian shall be entitled to his distributive share of all annuities, tribal funds, lands, and other property, the same as though he had maintained his tribal relations; and any transfer, alienation, or incumbrance of any interest he may hold or claim by reason of his former tribal relations shall be void. That in all cases in which Indians have heretofore entered public lands under the homestead law, and have proceeded in accordance with the regulations prescribed by the Commissioner of the General Land Office, or in which they may hereafter be allowed to so enter under said regulations prior to the promulgation of regulations to be established by the Secretary of the Interior, under the fifteenth section of this act, and in which the conditions prescribed by law have been or may be complied with, the entries so allowed are hereby confirmed, and patents shall be issued thereon; subject, however, to the restrictions and limitations contained in the fifteenth section of this act in regard to alienation and incumbrance. Approved March 3, 1875.

The act of July 4, 1884, provided that such Indians as may now be located on public lands, or as may, under the direction of the Secretary of the Interior, or otherwise, hereafter so locate, may avail themselves of the provisions of the homestead laws as fully and to the same extent as may now be done by citizens of the United States; and to aid such Indians in making selections of homesteads and the necessary proofs at the proper land offices, $1,000 or so much thereof as may be necessary is hereby appropriated; but no fees or commissions shall be charged on account of said entries or proofs. All patents therefor shall be of the legal effect, and declare that the United States does and will hold the land thus entered for the period of twentyfive years, in trust for the sole use and benefit of the Indian by whom such entry shall have been made, or, in case of his decease, of his widow and heirs according to the laws of the State or Territory where such land is located, and that at the expiration of said period the United States will convey the same by patent to said Indian, or his widow and heirs as aforesaid, in fee, discharged of said trust and free of all charge or incumbrance whatsoever.

Indians cannot pre-empt public lands, and they cannot remove, disability by declaring in the form of the statute their intention to become citizens.

Citizenship is not requisite for the ordinary purchase of public land. It may be done by a foreign alien, and a fortiori by a mere denizen or domestic alien, such as are the Indians.3

By act of July 4, 1884, sec. 10. No part of the expenses of the public lands service shall be deducted from the proceeds of Indian lands sold through the General Land Office, except as authorized by the treaty or agreement providing for the disposition of the land. (United States Statutes, Vol. XXIII, p. 98.)

United States Statutes, Vol. XVIII,

act, July 4, 1884, Statutes 23, p. 961.

3

p. 240, secs. 15, 16.

2 Indian appropriation Opinion of Attorney-General, Vol. VII, p. 753.