Fourth. That while the treaty-making power so long as it was exercised with Indians was in many respects similar to the power as exercised with foreign nations, the rules applicable to the construction of treaties with Indians are in some respects different from those applicable to treaties, with foreign powers, because of that superiority of the United States Government to the Indian tribes, which does not exist as to any foreign powers, must necessarily be taken into consideration, and the fact that the relationship of the Indians to the United States is that of ward and guardian must be considered as an element of vital importance in the construction of treaty stipulations."

United States with the Indian tribes ever since the Union was formed, of which numerous examples are to be found in the seventh volume of the public statutes. Cherokee Nation vs. Georgia, 5 Peters, 17; Worcester vs. Georgia, 6 Id. 543.

"One of the latest utterances of | vs. Rogers, 4 Howard, 567. Indeed, the Supreme Court on the construc- treaties have been made by the tion of Indian treaties was delivered in 1899 in a case involving the meaning of a clause reserving certain sections for the chief of the tribe with which the treaty was made. The syllabus states: "A treaty between the United States and an Indian tribe must be construed, not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians." Jones vs. Meehan, U. S. Sup. Ct. 1899, 175 U. S. 1, GRAY, J.

Holden vs. Joy, U. S. Sup. Ct. 1872, 17 Wall. 211, CLIFFORrd, J.

This is a long and complicated case involving the construction of numerous treaties and statutes made with and affecting the lands of the Cherokee Indians.

The general law in regard to treaties between the United States and the Indians and the right to make the same is referred to at page 242, as follows:

Indian tribes are States, in a certain sense, though not foreign States or States of the United States within the meaning of the second section of the third article of the Constitution, which extends the judicial power to controversies between two or more States, between a State and citizens of another State, between citizens of different States, and between a State or the citizens thereof and foreign States, citizens, or subjects. They are not States within the meaning of any one of those clauses of the Constitution, and yet in a certain domestic sense, and for certain municipal purposes, they are States, and have been uniformly so treated since the settlement of our

"Valid treaties were made by country and throughout its histhe President and Senate during|tory, and numerous treaties made that period with the Cherokee nation, as appears by the decision of this court in several cases. U. S.

with them recognize them as a people capable of maintaining the relations of peace and war, of being

§ 415. Unique status of Indian tribes, and peculiar relations between them and United States.-Briefly stated,

In this case it was held that when Indians were made citizens it did not necessarily remove the limitations of alienation which had been imposed by treaty and statute.

responsible, in their political char- | land agent; and of Beck vs. Real acter, for any violation of their Estate Co., U. S. Cir. Ct. App. engagements, or for any aggression 8th Cir. 1894, 65 Fed. Rep. 30, committed on the citizens of the THAYER, J. United States by any individual of their community. Laws have been enacted by Congress in the spirit of those treaties, and the acts of our government, both in the executive and legislative departments, plainly recognize such tribes or nations as States, and the courts of the United States are bound by those acts. Doe vs. Braden, 16 Howard, 635; Fellows vs. Blacksmith, 19 Id. 372; Garcia vs. Lee, 12 Peters, 519.

"Express power is given to the President, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur, and inasmuch as the power is given, in general terms, without a description of the objects intended to be embraced within its scope, it must be assumed that the framers of the Constitution intended that it should extend to all those objects which in the intercourse of nations had usually been regarded as the proper subjects of negotiation and treaty, if not inconsistent with the nature of our government and the relation between the States and the United States. Holmes vs. Jennison et al., 14 Peters, 569; 1 Kent, 166; 2 Story on the Constitution, sec. 1508; 7 Hamilton's Works, 501; Duer's Jurisprudence, 229."

United States vs. Flournoy, etc., Co., U. S. Cir. Ct. Neb. 1896, 71 Fed. Rep. 576, SHIRAS, J.

This is the same case as reported under title of Flournoy, etc., Co. vs. Beck, Beck being the United States

In regard to the court taking judicial notice of treaties with Indians the opinion says (p. 578):

"The courts of the United States take judicial notice not only of the public acts of congress and of the legislatures of the several states of the union, but also of the rules and regulations prescribed by the several departments for the transaction of the public business (Caha vs. U. S., 152 U. S. 211, 14 Sup. Ct. 513); also of the territorial extent of the jurisdiction exercised by the government whose laws they execute; also of the acts of the executive branch of the government, in the enforcement of the treaties or public laws of the country (Jones vs. U. S., 137 U. S. 202, 214, 11 Sup. Ct. 80); also of all matters of general history or of public notoriety; also of the official character of persons appointed by the president or heads of the departments or of the bureaus therein for the performance of duties created by acts of congress (Brown vs. Piper, 91 U. S. 37; Keyser vs. Hitz, 133 U. S. 138 to 145, 10 Sup. Ct. 290.)"

The court then proceeds to discuss the relations between the Indians and the United States Government under the treaties involved in this case.

United States vs. Foster, U. S. Cir. Ct. Wisconsin 1870, 2 Bissell,

the same power that can make treaties with foreign nations can make them with Indians, but the construction of the treaty so made is necessarily subject to those peculiar rela

377, Fed. MOND, J.

Cases 15141, DRUM

Best vs. Polk, U. S. Sup. Ct. 1873, 18 Wallace, 112, DAVIS, J.

In an action to restrain the cutting of timber on Indian lands reserved under the treaty of 1831 with the Menominee Indians, held that they could use timber sufficient to support themselves and their families, and they must be treated as the owners of the land, although their ownership was sub-was able to handle the property. ject to the rights of the sovereignty of the United States.

The numerous cases citing this case show the way in which treaties with Indians should be construed and also shows the impossibility of dealing with Indians in the same manner as sovereign nations, as the treaties had to be made exactly as the United States

The Kansas Indians, U. S. Sup. Ct. 1866, 5 Wallace, 737, DaVIS, J.

Held, that rules of interpretation favorable to Indian tribes are to be adopted in construing our treaties with them, hence a provision in an Indian treaty which exempts their lands from levy, sale and forfeiture is not, in the absence of expressions to limit it, to be confined to levy and sale under ordinary judicial proceedings only, but is to be extended to levy and sale by county officers for non-payment of taxes.

Libby vs. Clark, U. S. Sup. Ct. 1886, 118 U. S. 250, MILLER, J.

Held, that "the provisions in Article VII of the Treaty of June 24, 1862, with the Ottawa Indians of Blanchard's Fork and Roche de Boeuf, 12 Stat. 1237, limiting the power of alienating granted lands, apply to the grants authorized by Article III of the treaty to be made to chiefs, councilmen, and headmen of the tribe; and deeds made in violation of that limitation (as it was incorporated by the land office into patents for lands allotted to chiefs, councilmen, or headmen), are void."

Bush vs. United States, Ct. Claims, 1894, 29 Ct. Claims, 144, WELDON, J.

Godfrey vs. Beardsley, U. S. Cir. Ct. Indiana 1841, 2 McLean, 412, Fed. Cas. 5,497, McLean, J.

Goodfellow vs. Muckey, U. S. Cir. Ct. Kans. 1881, 1 McCrary, 238 Fed. Cas. 5,537, FOSTER, J.

Gray vs. Coffman, U. S. Cir. Ct. Kans. 1874, 3 Dillon, 393, Fed. Cas. 5,714, DILLON, J.

Henderson vs. Tenn., U. S. Sup. Ct. 1850, 10 How. 311, TANEY, Ch. J.

Ladiga vs. Roland, U. S. Sup. Ct. 1844, 2 Howard, 581, BALDWIN, J. Mann vs. Wilson, U. S. Sup. Ct. 1859, 23 Howard, 457, CATRON, J.

Meigs vs. McClung, U. S. Sup. Ct. 1815, 9 Cranch, 11, MARSHALL, Ch. J. See reference under § 460, post.

Minter vs. Crommelin, U. S. Sup. Ct. 1855, 18 Howard, 87, CATRON, J.

Potawatamie Indians vs. United States, Ct. Claims, 1892, 27 Ct. Claims, 403, WELDON, J. (Affirmed sub nomine Pam-to-pee vs. U. S., U. S. Sup. Ct. 1893, 148 U. S. 691, SHIRAS, J.)

Summers vs. Spybuck, Sup. Ct. Kans. 1863, 1 Kan. 394, COBB, Ch. J.

United States vs. Alaska Packers' Association, U. S. Cir. Ct.

tions which, as was said in Cherokee Nation vs. Georgia,1 exist between the United States and the Indian tribes, and between no other nations in the world.

It can readily be seen that the establishment of treaty relations between a sovereign power such as the United States and nations or tribes wholly dependent upon it, occupying territory within its own boundaries, and subject to its jurisdiction, as the Indian tribes are, became a matter of great embarrassment in the administration of national affairs; it became absolutely necessary, therefore, for the United States to place the Indian tribes remaining in this country upon a footing entirely different from that of independent nations.

§ 416. The Cherokee Nation at present; Imperium in Imperio; other nations.-Shortly after the Cherokee-Georgia controversy was settled, the United States Government adopted the policy of transplanting the Indian tribes which were then occupying territory east of the Mississippi to the territory west of that river which had been acquired from France by the Louisiana purchase of 1803. Treaties were made with many of the tribes and nations by which their title to the territory originally claimed by them was extinguished and corresponding reservations were provided for them in what is now Kansas, Nebraska, Oklahama and Indian Territory. From time to time since then other treaties and agreements have been made with these Indians by

Washington, 1897, 79 Fed. Rep. 152,
HANDFORD, J.

United States vs. Brooks, U. S.
Sup. Ct. 1850, 10 Howard, 442,
WAYNE, J.

United States vs. Winans, U. S. Cir. Ct. Washington, S. D., 1896, 73 Fed. Rep. 72, HANDFORD, J.

United States vs. Taylor, Sup. Ct. Wash. 1887, 3 Wash. Rep. 88, HOYT, J.

Warner vs. Joy, U. S. Sup. Ct. 1872, 17 Wall. 253. CLIFFORD, J. Decided at the same time on the same grounds as Holden vs. Joy, 17 Wall. 211.

Western Cherokee Indians vs. United States, U. S. Ct. Claims, 1891, 27 Ct. Claims, 1, NOTT, J.

Wilson vs. Wall, U. S. Sup. Ct. 1867, 6 Wall. 83, GRIER, J.

See also Wharton's Digest Int. Law, §§ 208 et seq. vol. II. § 415.

1 See § 411, p. 207, ante, and see § 132, vol. I, pp. 232, et seq. $416.

1 For these treaties see the Compilation of Indian Treaties of 1873, published by the Interior Department.

which portions of the territory so reserved for them has been repurchased by the United States and thrown open for settlement. Amongst the tribes which were thus removed were the Cherokees, Creeks, Choctaws, Chickasaws and Seminoles, which are now known as the five civilized tribes and with which the Dawes' Commission are now negotiating for a final adjustment for the division of their lands in severalty as has been stated in a previous section.2

Under these treaties of removal the tribes established governments for themselves and their right to self-government has been respected by the United States Government and upheld by the courts so long as the provisions of the treaties were complied with. Within the Indian Territory there exists an Imperium in Imperio, the exact status of which it has been sometimes difficult to determine. The five tribes above re

"The United States court in the Indian Territory has no jurisdiction of an action against the Choctaw Nation, or the chief executive officers thereof, when sued in their capacity as such, for an alleged debt or liability of the Nation, and when the judgment will operate against the Nation."

2 See § 406, pp. 201, et seq., ante. the jurisdiction and authority of 8 Thebo vs. Choctaw Tribe of In- the United States. Being a domesdians, U. S. Cir. Ct. App. 8th Cir. tic and dependent state, the United 1895, 66 Fed. Rep. 372, CALD- States may authorize suit to be WELL, J. This case is cited at brought against it. But, for oblength because it shows to what vious reasons, this power has been extent the courts go in protecting sparingly exercised. It has been these Indian tribes from interfer- the settled policy of the United ence; it was held, as stated in the States not to authorize such suits syllabus: except in a few cases, where the subject-matter of the controversy was particularly specified, and was of such a nature that the public interests, as well as the interests of the Nation, seemed to require the exercise of the jurisdiction. It has been the policy of the United States to place and maintain the Choctaw Nation and the other civilized Indian Nations in the Indian Territory, so far as relates to suits against them, on the plane of independent states. A state, without its consent, cannot be sued by an individual. 'It is a well established principle of jurisprudence in all civilized nations that the sovereign cannot be sued in its own courts or any other without its consent and permission; but it

In reaching this conclusion the court says in regard to the status of the nation as follows (pp. 375376):

"While the nation has many of the attributes of the political unit which constitutes the civil and self-governing community called a 'State' or a 'Nation,' it is not a sovereign state, but it is a domestic and dependent state, subject to