Page images

Pathkiller, 2 Yerg. 407; Vanhorne v. Dorrance, 2 Dall. 304; Choteau v. Molony, 16 How. 203; Godfrey v. Beardsley, 2 McLean, 412.

The right of possession has never been questioned. The claim of the Government extends to the complete ultimate title charged with this right of possession, and to the exclusive power of acquiring that right. Johnson v. McIntosh, 8 Wheat. 543 : Ogden v. Lee, 6 Hill, 546; Strong v. Waterman, [I Paige, 607; Blair v. Pathkiller, 2 Yerg. 407.

A mere reservation of the Indian right to a certain part, within described boundaries, leaves the right reserved as it stood before the cession. Godfrey v. Beardsley, 2 McLean, 412; Wheeler v. Me-shin-go-me-sia, 30 Ind. 402; Penobscot Indians v. Veazie, 58 Me. 402.

An individual who purchases land from the Indians acquires only their title. The land remains a part of their territory, and is held under them by a title depending on their laws. The purchaser incorporates himself with them, so far as respects the property, and holds the title under their protection, and subject to their laws. If they annul the grant, the courts of the United States can not interpose for the protection of the title. A purchase can not be distinguished from a grant made to a native Indian, .authorizing him to hold a particular tract of land in severalty. As such a grant can not separate the Indian from his nation, nor give a title which the courts of the United States can distinguish from the title of his tribe, as the land may be still conquered from, or ceded by his tribe, there is no legal principle which will authorize the assertion, that different consequences are attached to a purchase hy a stranger. Johnson v. McIntosh, 8 Wheat. 543; Jackson v. Porter, 1 Paine, 457; Vanhorne v. Dorrance, 2 Dall. 306.

The Indians may dispose of their land with the consent of the executive, where the executive is authorized to give such consent by the provisions of any treaty or act of Congress. Hale v. Wilder, 8 Kans. 545.

The consent of the executive department to a sale of land by Indians, where it was not authorized by a treaty or an act of Congress, will not make a sale valid. Hale v. Wilder, 8 Kans. 545.

The consent of the Government to a sale of lands by Indians may be given by treaty or by an act of Congress, but in no other way. Hale v. Wilder, 8 Kans. 545.

A party who purchases the title subject to the Indian right of occupancy, acquires nothing but the right to purchase whenever the Indians may choose to sell. Ogden v. Lee, 6 Hill, 546; Fellows v. Lee, 5 Den. 628 ; Wadsworth v. Buffalo H. Association, 15 Barb. 82.

The Indian inhabitants are considered merely as occupants to be protected while in peace in the possession of their lands, but incapable of transferring an absolute title to others. Johnson v. McIntosh, 8 Wheat. 543.

The Indian right to land is not merely of possession; that of alienation is concomitant, subject only to ratification and confirmation by the Government. Mitchel v. U. S. 9 Pet. 711 ; Wilson v. Wall, 6 Wall. 83.

The Indians have a right to enjoy their possessions, and to use and occupy their lands in any manner agreeable to them, and for all time to come. Wadsworth v. Buffalo H. Association, 15 Barb. 82.

The Indians are not tenants of the State, but hold under their own original title. They are rightful lords of the soil, and may cut and sell the timber thereon. Ogden v. Lee, 6 Hill, 546.

The timber, while standing, is a part of the realty, and can only be sold as the land could be. Consequently, the timber can not be sold until rightfully severed. U. S. v. Cook, 19 Wall. 591.

The right of use and occupancy by the Indians is unlimited. They may exercise it at their discretion. If the lands in a state of nature are not in a condition for profitable use, they may be made so. U.S. v. Cook, 19

Wall. 591.

If desired for the purposes of agriculture, the lands may be cleared of their timber to such an extent as may be reasonable under the circumstances. The timber taken off by the Indians in such clearing, may be sold by them. But, to justify any cutting of the timber, except for use on the premises as timber or its product, it must be done in good faith for the improvement of the land. The improvement must be the principal thing, and the cutting of the timber the incident only. Any cutting beyond this is waste, and unauthorized. U. S. v. Cook, 19 Wall. 591; U. S. v. Foster, 2

Biss. 377.



upon their

The presumption is against the authority of the Indians to cut and sell the timber, and every purchaser from them is charged with notice of this presumption. U. S. v. Cook, 19 Wall. 591.

The Indians have the same rights in the lands of their reservations as a tenant for life has in the lands of a remainder-man. What a tenant for life may do upon the lands of a remainder-man, the Indians may

do reservations, but no more. U. S. v. Cook, 19 Wall. 591.

When the timber is rightfully severed, it is no longer a part of the land, and there is no restriction upon its sale. The timber may then be sold by the Indians. U. S. v. Cook, 19 Wall. 591 ; U. S. v. Foster, 2 Biss. 377.

If the timber is severed for the purposes of sale alone, the cutting is wrongful, and the timber when cut, becomes the absolute property of the United States. U. S. v. Cook, 19 Wall. 591.

When part of an Indian reservation is taken for public uses, with the consent of the tribe, it is not necessary to obtain the consent of the owner of the right of pre-emption, and when he purchases the land from the Indians he takes it subject to the servitudes or easements upon it, although no compensation was made to him. Wadsworth v. Buffalo H. Association, 15 Barb. 82.

The nature of the Indian title is not such as to be absolutely repugnant to a seizin in fee on the part of the State in which the land is situated. Fletcher v. Peck, 6 Cranch, 87.

A State law respecting lands in the Indian country, to take effect when the Indian title is extinguished, is valid, and will be enforced when the State acquires the soil. George v. Gamble, 2 Overt. 170.

A reservation to an Indian under a treaty, gives a right which is paramount to a grant from a State made while the Indian occupancy continued. Cornet v. Winton, 2 Yerg. 143.

A patent by a State, of land owned by it in an Indian country, is not void, but passes a title subject to the Indian right of occupancy. Clark v. Smith, 13 Pet. 195.



1. The United States shall guarantee to every State in this Union a republican form of government, and shall protect each of them against invasion, and on application of the legislature, or of the executive, when the legislature can not be convened, against domestic violence.

The recognition of the legality of a State government is political in its nature, and is placed in the hands of the political department. It rests with Congress to decide what government is the established one in a State; for, as the United States guarantee to each State a republican form of government, Congress must necessarily decide what government is established in a State before it can determine whether it is republican or not. Its decision is binding on every other department of the Government, and can not be questioned in a judicial tribunal. Luther v. Borden, 7 How. I; Texas v. White, 7 Wall. 700 ; Calhoun v. Calhoun, 2 Rich. N. S. 283.

When the senators and representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. Luther v. Borden, 7 How. I; Blair v. Ridgeley, 41 Mo. 63.

Under this clause, Congress has the power to re-establish the broken relations of a rebellious State with the Union Texas v. White, 7 Wall. 700.

In establishing a new government in a rebellious State, Congress may require that the new State Constitution shall pass any measure which Congress has the power to enact and enforce. Shorter v. Cobb, 39 Geo. 285; Hardeman v. Downer, 39 Geo. 425.

Congress is the only department of the Government authorized to reorganize and reconstruct rebellious States, and to provide for the establishment of civil governments therein. Powell v. Boon, 43 Ala. 469.

In the exercise of the power conferred by this clause, as in the exercise of every other constitutional power, a discretion in the choice of means is necessarily allowed. Texas v. White, 7 Wall. 700.

Where a rebellious State frames a Constitution which is approved by Congress, it is estopped to deny its validity. The action of Congress can not be inquired into, for the judicial is bound to follow the action of the political department. White v. Hart, 13 Wall. 646; S.C. 39 Geo. 306.

The approval of the Constitution of a rebellious State by Congress does not make the Constitution an act of Congress. Homestead Cases, 23 Gratt. 266; In re Sarah Kennedy, 2 Rich. N. S. 116; White v. Hart, 13 Wall. 646; S. C. 39 Geo. 306; Marsh v. Burroughs, 1 Wood. 463.

No particular government is designated as republican, nor is the exact form to be guaranteed in any manner especially indicated. A government may be republican, although women are not made voters. Minor v. Happersett, 21 Wall. 162.

It rests with Congress to determine the means proper to protect a State against invasion or domestic violence. Luther v. Borden, 7 How. I.

A State may use its military power to put down an armed insurrection too strong to be controlled by the civil authority. The power is essential to the existence of every government, essential to the preservation of order and free institutions, and is as necessary to the States of this Union as to any other government. The State itself must determine what degree of force the crisis demands. If the State government deems the armed opposition so formidable as to require the use of its military force and the declaration of martial law, its authority can not be questioned by the courts. The established government may resort to the rights and usages of war to maintain itself and to overcome opposition. Luther v. Borden, 4 How. 1.

[merged small][ocr errors]

1. The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two-thirds of the several States, shall call a convention for proposing amendments, which, in either case, shall be valid, to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three-fourths of the several States, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight, shall in any manner affect the first and fourth clauses in the ninth section of the first article ; and that no State, without its consent, shall be deprived of its equal suffrage in the Senate.


. 1. All debts contracted and engagements entered into, before the adoption of this Constitution, shall be as valid against the United States under this Constitution as under the confederation.

2. This Constitution, and the laws of the United States which shall be made in pursuance thereof, and .all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land ; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.

Supremacy. The departments of the Government are legislative, executive and judicial. They are co ordinate in degree to the extent of the powers delegated to each of them. Each in the exercise of its powers is independent of the other, but all rightfully done by either is binding upon the others.

« PreviousContinue »