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the treaty to that extent, or abrogates it altogether; the United States in such cases either regards the treaty as superseded or abrogated, and the Indians are left without any recourse except as they may be permitted to prove whatever damages may have been sustained in the courts of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, McKENNA, J. (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 defendants depends upon a treaty by which they assumed responsibilities for past or future wars, liabilities not imposed by international law or by statute, the right of the claimant to recover will be "The law of nations 'defines the rights and prescribes the duties of nations in their intercourse with each other' (1 Kent's Com. p. 1); and it, although not specifically adopted by the Constitution, 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| statutes. The necessity of connecting the East and the West by rail was paramount to all other considerations. It was impossible to prevent it, and as it was necessary to cross the Indian reservations rights of way were given to the companies. In some instances new treaties were made with the Indians whose reservations were affected; in other cases Congress acted first and adjusted the matter afterwards, sometimes providing in the statutes for compensation, sometimes leaving it to the court, and sometimes not making any direct provision whatever. Under such circumstances matters involving the construction of Indian treaties reserving territory for the Indians and subsequent statutes granting the same territory to railroad companies frequently came before the courts. The rule adopted, generally speaking, has been to uphold and construe the treaty and the statute together whenever possible, but, if impossible to do so, the later statute must prevail, the grant be upheld, and the loss sustained. by the Indians settled by Congress, or by the Court of Claims, or such other court, as may have jurisdiction, either under general statutes or ones passed for the special occasion. There are over a hundred statutes and as many decisions involving these questions; a few cases only are referred to in the notes.1 The treaties can be found by examining the § 418. 1 Buttz vs. Northern Pacific Railroad, U. S. Sup. Ct. 1886, 119 U. S. 55, FIELD, J. Cal. & Ore. Land Co. vs. Worden, U. S. Cir. Ct. Ore. 1898, 85 Fed. Rep. 94, and 87 Fed. Rep. 532, BELLINGER, J. Cherokee Nation vs. Southern Kansas Railway Co., U. S. Sup. Ct. 1890, 135 U. S. 641, HARLAN, J. Illinois Steel Co. vs. Budzisz, U. S. C. C. E. D. Wis. 1897, 82 Fed. Rep. 160, SEAMAN, J. And see also Budzisz vs. Illinois Steel Co., U. S. Sup. Ct. 1898, 170 U. S. 41, SHIRAS, J. Leavenworth &c. R. R. Co. vs. United States, U. S. Sup. Ct. 1875, 92 U. S. 733, Davis, J. M. K. & T. R. R. Co. vs. Roberts, U. S. Sup. Ct. 1894, 152 U. S. 114, M. K. & T. R. R. Co. vs. United Shepard vs. N. W. Life Ins. Co., U. S. Cir. Ct. Michigan, 1889, 40 Fed. Rep. 341, BROWN, J. Ross vs. Eells, U. S. Cir. Ct. N. D. Wash. 1893, 56 Fed. Rep. 855, HANFORD, J. And see also Eells vs. Ross, 64 Fed. Rep. 417. St. Paul, etc., Ry. Co. vs. Phelps, U. S. Sup. Ct. 1890, 137 U. S. 528, LAMAR, J. Stroud vs. Missouri River, etc., R. R. Co., U. S. Cir. Ct. Kan. 1877, 4 Dillon, 396, Fed. Cas. 13,547, DILLON, J. Utah & Northern Ry. Co. vs. Indian treaty volume of 1873 and the statutes are generally referred to in the opinions. The abandonment of the treaty method of dealing with Indians has greatly lessened this class of cases. § 419. Criminal jurisdiction; treaty provisions and statutes. Many of the Indian treaties contain provisions for the trial of Indians by their own tribunals. The special provisions of the treaties control the extent of this exclusive jurisdiction, which depends upon the nationality of the accused and the locality of the crime. In a leading case by the Supreme Court1 the history of Fisher, U. S. Sup. Ct. 1885, 116 § 419. 1 United States vs. Kagama, U. S. Sup. Ct. 1886, 118 U. S. 375, MILLER, J. The questions in this case arose on demurrer to an indictment against two Indians for murder of another Indian, committed on an Indian reservation in California. The question was whether the United States had the right to pass the act of 1885, giving Congress necessary jurisdiction to try Indians under such circumstances on reservations and where tribal relations still existed. The court reviewed the relation of the Indians to the United States at length, and the right of the United States to govern territories, referring to the cases of the Cherokee Nation vs. State of Georgia, 5 Peters, 1; Murphy vs. Ramsey, 114 U. S. 15; American Insurance Company vs. Canter, 1 Peters, 511, United States vs. Rogers, 4 Howard, 567, and in regard to the present status of the Indians and the right of the United States to legislate in regard to them the court says (pp. 381-385): "The Indian reservation in the case before us is land bought by | the United States from Mexico by the treaty of Guadalupe-Hidalgo, and the whole of California, with the allegiance of its inhabitants, many of whom were Indians, was transferred by that treaty to the United States. "The relation of the Indian tribes living within the borders of the United States, both before and since the Revolution, to the people of the United States has always been an anomalous one and of a complex character. "Following the policy of the European governments in the discovery of America towards the Indians who were found here, the colonies before the Revolution and the States and the United States since, have recognized in the Indians a possessory right to the soil over which they roamed and hunted and established occasional villages. But they asserted an ultimate title in the land itself, by which the Indian tribes were forbidden to sell or transfer it to other nations or peoples without the consent of this paramount authority. When a a tribe wished to dispose of its land, or any part of it, or the State or the United States wished to purchase it, a treaty with the tribe was the only mode in which this could |