ferred to have been mentioned as examples only, for the full list of tribes removed and for the circumstances under which the removals took place the records of the Interior Department must be examined and it would require more space than can be devoted to it in this volume to even give list of the treaties and the decisions on cases arising thereunder when it has been necessary to construe them. A few decisions on the status of some of the tribes are given in the notes to this section.1 may, if it thinks proper, waive this privilege, and permit itself to be made a defendant in a suit by individuals or by another state.' Beers vs. Arkansas, 20 How. 527. The United States has waived its privilege in this regard, and allowed suits to be brought against it in a few specified cases. Some of the States of the Union have at times claimed no immunity from suits, but experience soon demonstrated this to be an unwise and extremely injurious policy, and most, if not all, of the states after a brief experience, abandoned it, and refused to submit themselves to the coercive process of judicial tribunals. When the Supreme Court of the United States, in Chisholm vs. Georgia, 2 Dall. 419, decided that under the constitution that court had original jurisdiction of a suit by a citizen of one state against another state, the eleventh amendment to the constitution was straightway adopted, taking away this jurisdiction. Since the adoption of this amendment, the contract of a state 'is substantially without sanction, except that which arises out of the honor and good faith of the state itself; and these are not subject to coercion.' In re Ayers, 123 U. S. 443, 505, 8 Sup. Ct. 164. One claiming to be creditor of a state is remitted to the justice of its legis lature. It has been the settled policy of congress not to sanction suits generally against these Indian Nations, or subject them to suits upon contracts or other causes of action at the instance of private parties. In respect to their liability to be sued by individuals, except in the few cases we have mentioned, they have been placed by the United States, substantially, on the plane occupied by the States under the eleventh amendment to the constitution. The civilized Nations in the Indian Territory are probably better guarded against oppression from this source than the states themselves, for the states may consent to be sued, but the United States has never given its permission that these Indian Nations might be sued generally, even with their consent. As rich as the Choctaw Nation is said to be in lands and money, it would soon be impoverished if it was subject to the jurisdiction of the courts, and required to respond to all the demands which private parties chose to prefer against it. The intention of congress to confer such a jurisdiction upon any court would have to be expressed in plain and unambiguous terms. The judgment of the United States court in the Indian Territory is affirmed." 4 Cherokee Nation vs. Southern 8417. Complications arising from treaty method of dealing with Indians; anomalous conditions owing to dependent relations. Anomalous conditions were often created by concluding a treaty with an Indian tribe through Kansas Railway Co., U. S. Sup. Ct. 1890, 135 U. S. 641, HARLAN, J. "The Cherokee Nation is not sovereign in the sense that the United States or a State is sovereign, but is now, as heretofore, a dependent political community, subject to the permanent authority of the United States." The Cherokee Trust Funds, U. S. Sup. Ct. 1885, 117 U. S. 288, FIELD, J. The opinion contains a lengthy history of the Cherokee Nation and its various divisions and migratory movements, and the status of those bands of Indians which did not remove west of the Mississippi with the tribe. Jordan vs. Goldman, Dist. Ct. Okla. 1891, 1 Okla. Rep. 406, GREEN, J. In this case the history of the Cherokee treaties and the effect of subsequent statutes passed by the United States, and the final condition of the Indian title as to what is known as the Cherokee Outlet is considered at length and determined. The entire brief of the United States attorney showing the position assumed by the gov ernment is included in the report of the case. Held, that certain tax statutes of the Territory of Oklahoma affecting cattle grazing on Indian Reservations were constitutional and Mehlin vs. Ice, U. S. Cir. Ct. App. | valid. 8th Cir. 1893, 12 U. S. App. 305, United States vs. Wilson, U. S. CALDWELL, J. Status of Cherokee | Sup. Ct. 1861, 1 Black, 267, NELIndians stated and defined. Porterfield's Executors vs. Clark, U. S. Sup. Ct. 1844, 2 Howard, 76, CATRON, J. The boundaries of the Cherokee Indians as fixed by the treaties were historically examined and the nature, limits and effects of various grants. Held, that acts of the State applied to Indian territory so far as the treaties would permit and that upon the extinguishment of Indian titles and grants the laws of States extended over the country. There is an extended history of the relations of the United States, Great Britain and Spain with the Cherokee Indians contained in the opinion. Thomas vs. Gay, U. S. Sup. Ct. 1898, 169 U. S. 264, SHIRAS, J. SON, J. In this case a Californian-Mexican land grant to an Indian was confirmed on account of the usages of the Mexican Government prior to the transaction. Guthrie vs. Hall, Dist. Ct. Oklahoma, 1891, 1 Okla. 454, SEAY, J. Journeycake vs. Cherokee Nation, U. S. Ct. of Claims, 1896, 31 Ct. of Claims, 140, NOTT, J. Journeycake vs. United States, U. S. Ct. of Claims, 1893, 28 Ct. of Claims, 281, NOTT, J. Mackey vs. Coxe, U. S. Sup. Ct. 1855, 18 Howard, 100, MCLEAN, J. Standley vs. Roberts, U. S. Cir. Ct. App. 8 Cir. 1894, 59 Fed. Rep. 836, SANBORN, J. Taltan vs. Mayes, U. S. Sup. Ct. 1896, 163 U. S. 376, WHITE, J. negotiations carried on wholly within the United States, with people who, although they were not citizens of the United States, resided therein, and were subject to its laws, and to the action of the Federal Government in regulating their commercial affairs; this position became all the more anomalous when any treaty stipulation was violated either by the tribe or by the United States. When a treaty has been violated by a foreign nation the United States can make its reclamation through the proper channels and compel the nation either by diplomatic action-possibly by threat of war-to make proper restitution; if a foreign nation claims that the United States has violated a treaty, its claims can be similarly made and the United States responds thereto either by proper acknowledgment, or by proving either that the treaty has not been violated or that no damage has been sustained which can be made the basis of a reclamation. In regard to Indian treaties, however, if any violation occurs by the enactment of a statute contravening the treaty, the Supreme Court has held that it is simply a superior act on the part of Congress, which either supersedes the treaty to that extent, or abrogates it altogether; the United States in such cases either regards the treaty as superseded or abrogated, and the Indians are left without any recourse except as they may be permitted to prove whatever damages may have been sustained in the courts of the United States, and, upon proof of damage, Congress has generally indemnified the Indians in such manner and to such extent as the court has decreed to be fair and proper. On the other hand when Indians violate any treaty stipulations, the United States by force of its superior position is able to immediately proceed to confiscate lands of the Indians, or to punish them in such manner as Congress, or in some cases the Executive, may determine. These conditions demonstrate practically the impossibility of maintainUnited States vs. Boyd, U. S. Cir. | tribe to the Government, the validCt. App. 4th Cir. 1897, 42 U. S. App. 637, Goff, J. ity of contracts made with them, and is an exhaustive resumé of the legal relations of the tribes to the United States. This was one of the Cherokee cases involving the relations of that Bell vs. Atl. & Pac. R. R. Co., U. S. Cir. Ct. App. 8th Cir. 1894, 27 U.S. App. 305, CALDWELL, J. ing treaty relations between States where all the contracting parties are not possessed of every attribute of sovereignty and able to exercise them. The relations of the tribes to the United States, and the responsibility for depredations by Indians are discussed in many cases decided by the court of claims, some of which are referred to in the notes.1 In some of these cases the court of claims has held that the principles of international law should be applied to our dealings with Indian tribes." § 417. 1 Brown vs. United States, U. S. Ct. Claims, 1897, 32 Ct. Claims, 432, NOTT, J. Connor vs. United States, Ct. Claims, 1884, 19 Ct. Claims, 675, RICHARDSON, J. Friend vs. United States, U. S. Ct. Claims, 1894, 29 Ct. Claims, 425, RICHARDSON, CH. J. Garrison vs. United States, U. S. Ct. Claims, 1895, 30 Ct. Claims, 272, PEELLE, J. Janis vs. United States, Ct. of Claims, 1897, 32 Ct. of Claims, 407, NOTT, Ch. J. Kendall vs. United States, U. S. Sup. Ct. 1868, 7 Wallace, 113, MILLER, J. (Affirming Ct. Claims, 1865, 1 Ct. Claims, 261, PECK, J.) Labadi vs. United States, Ct. Claims, 1896, 31 Ct. Claims, 205, WELDON, J. Leighton vs. United States, U. S. Sup. Ct. 1896, 161 U. S. 291, BREWER, J. (Affirming Ct. Claims, 1894, 29 Ct. Clms, 288, PEELLE, J.) Held, (in Ct. Claims-see syllabus) in determining certain Indian depredation claims that the court cannot inquire whether a treaty was properly executed or whether it was procured by undue influence and that where the political departments continued to recognize an Indian treaty it must be inferred that the tribe was then recognized as in amity, but such presumption is not conclusive. Litchfield vs. United States, U. S. Ct. Claims, 1898, 33 Ct. Claims, 203, PEelle, J. Love vs. United States, U. S. Ct. Claims, 1894, 29 Ct. Claims, 332, NOTT, J. Mares vs. United States, U. S. Ct. Claims, 1894, 29 Ct. Claims, 197, WELDON, J. Moore vs. United States, U. S. Ct. Claims, 1897, 32 Ct. Claims, 593, PEELLE, J. Definition of treaty relations with Indians examined. United States vs. Navarre, U. S. Sup. Ct. 1899, 173 U. S. 77, MoKENNA, J. (4 (Affirming Navarre vs. United States, 33 Ct. Claims, 235). Valk vs. United States, U. S. Ct. Claims, 1894, 29 Ct. Claims, 62, RICHARDSON, Ch. J. See also Briggs vs. Sample, U. S. Cir. Ct. Kans. 1890, 43 Fed. Rep. 102, FOSTER, J. Cherokee Nation vs. Journey cake, U. S. Sup. Ct. 1894, 155 U. S. 196, BREWER, J. Frost vs. Wenie, U. S. Sup. Ct. 1895, 157 U. S. 46, HARLAN, J. Leavenworth L. & G. R. R. Co. vs. United States, U. S. Sup. Ct. 1875, 92 U. S. 733, DAVIS, J. See also land grant and treaty cases cited in notes under next section. 2 Leighton vs. United States, U. S. § 418. Railroad land grants and treaty reservations.— On numerous occasions Congress has made extensive land grants to railroad companies to encourage and aid in the building of railroads in the western parts of this country. Many of those roads were located through territory which was included in the reservations set apart for Indians under treaties made long prior to the enactment of the land grant Ct. of Claims, 1894, 29 Ct. of Clms. 288, PEELLE, J., affirmed U. S. Sup. Ct. 1895, 161 U. S. 291, BREWER, J. Love vs. United States, U. S. Ct. of Claims, 1894, 29 Ct. of Clms. 332, NOTT, J. These were cases under the Indian depredation acts and the relations of tribes of Indians with the United States during periods of peace and of war were discussed at length. The application of the principles of international law were referred to in opinion in the Love case as follows (pp. 346-8): "The principles of international law have been applied to hostilities with the Indian tribes so far as to accord to them the rights of a belligerent. It is too well settled to need citations that an Indian warrior in a war waged within the boundaries of a State cannot be tried for murder or robbery in its courts. The international rule which holds a nation responsible for the acts of its members so long as peace continues may be illogical, but it is worldwide. the law of nations constitutes a part of the laws of the land is established from the face of the Constitution upon principle and by authority' (Attorney-General Speed, 11 Opin. p. 299). International law operates in these cases in two ways; it gives to these claimants a right of redress for depredations upon their property in time of peace, and it gives to these Indian defendants a right to the impartial judgment of a court under the general principles which regulate the affairs of nations. The question, of course, will be, in each case where the recovery depends upon the action of the United States when they concluded peace with a warring tribe, whether they asserted a right to indemnity. If the Government did not, the individual suitor cannot." [These liabilities are then compared to those of the Civil War, and reference made to the fact that Congress refused to pay for losses incidental to war]. "5. Where the liability of Indian "The law of nations 'defines defendants depends upon a treaty the rights and prescribes the du- by which they assumed responsi ties of nations in their intercourse bilities for past or future wars, liawith each other' (1 Kent's Com.bilities not imposed by internap. 1); and it, although not spe- tional law or by statute, the right cifically adopted by the Consti- of the claimant to recover will be, tution, is essentially a part of the measured by the terms of the law of the land' (Attorney-General treaty." Randolph, 1 Opin. p. 27). That |