ernment. We are unable to yield our assent to this view.

and is not a matter open to discussion in a controversy between third parties, neither of whom derives title from the Indians."

The contention in effect ignores the status of the contracting Indians and the relation Plenary authority over the tribal relaof dependency they bore and continue to tions of the Indians has been exercised by bear towards the government of the United Congress from the beginning, and the power States. To uphold the claim would be to has always been deemed a political one, not adjudge that the indirect operation of the subject to be controlled by the judicial detreaty was to materially limit and qualify partment of the government. Until the the controlling authority of Congress in re- year 1871 the policy was pursued of dealspect to the care and protection of the In- ing with the Indian tribes by means of dians, and to deprive Congress, in a possi- treaties, and, of course, a moral obligation ble emergency, when the necessity might be rested upon Congress to act in good faith in urgent for a partition and disposal of the performing the stipulations entered into on tribal lands, of all power to act, if the as- its behalf. But, as with treaties made with sent of the Indians could not be obtained. foreign nations (Chinese Exclusion Case, Now, it is true that in decisions of this 130 U. S. 581, 600, 32 L. ed. 1068, 1073, 9 court, the Indian right of occupancy of Sup. Ct. Rep. 623), the legislative power tribal lands, whether declared in a treaty might pass laws in conflict with treaties or otherwise created, has been stated to be made with the Indians. Thomas v. Gay, sacred, or, as sometimes expressed, as sa- 169 U. S. 264, 270, 42 L. ed. 740, 743, 18 cred as the fee of the United States in the Sup. Ct. Rep. 340; Ward v. Race Horse, 163 same lands. Johnson v. M'Intosh (1823) U. S. 504, 511, 41 L. ed. 244, 246, 16 Sup. 8 Wheat. 543, 574, 5 L. ed. 681, 688;*Chero- Ct. Rep. 1076; Spalding v. Chandler, 160 kee Nation v. Georgia (1831) 5 Pet. 1, 48, | U. S. 394, 405, 40 L. ed. 469, 473, 16 Sup. Ct. 8 L. ed. 25, 42; Worcester v. Georgia (1832) Rep. 360; Missouri, K. & T. R. Co. v. Rob6 Pet. 515, 581, 8 L. ed. 483, 508; United | erts, 152 U. S. 114, 117, 38 L. ed. 377, 379, States v. Cook (1873) 19 Wall. 591, 592, 14 Sup. Ct. Rep. 496; Cherokee Tobacco, 11 22 L. ed. 210, 211; Leavenworth, L. & G. R. Wall. 616, sub nom. 207 Half Pound Papers Co. v. United States (1875) 92 U. S. 733, of Smoking Tobacco v. United States, 20 L. 755, 23 L. ed. 634, 643; Beecher v. Wether-ed. 227.

by (1877) 95 U. S. 525, 24 L. ed. 441. But The power exists to abrogate the proviin none of these cases was there involved a sions of an Indian treaty, though presuma controversy between Indians and the gov-bly such power will be exercised only when ernment respecting the power of Congress circumstances arise which will not only to administer the property of the Indians. justify the government in disregarding the The questions considered in the cases re- stipulations of the treaty, but may demand, ferred to, which either directly or indirect-in the interest of the country and the Inly had relation to the nature of the prop- dians themselves, that it should do so. erty rights of the Indians, concerned the character and extent of such rights as respected states or individuals. In one of the cited cases it was clearly pointed out that Congress possessed a paramount power over the property of the Indians, by reason of its exercise of guardianship over their interests, and that such authority might be implied, even though opposed to the strict let ter of a treaty with the Indians. Thus, in Beecher v. Weherby, 95 U. S. 525, 24 L. ed. 441, discussing the claim that there had been a prior reservation of land by treaty to the use of a certain tribe of Indians, the court said (p. 525, L. ed. p. 441):

When, therefore, treaties were entered into between the United States and a tribe of Indians it was never doubted that the pow er to abrogate existed in Congress, and that in a contingency such power might be availed of from considerations of governmental policy, particularly if consistent with perfect good faith towards the Indians. In United States v. Kagama (1885) 118 U. S. 375, 30 L. ed. 228, 6 Sup. Ct. Rep. 1109, speaking of the Indians, the court said (p. 382, L. ed. p. 230, Sup. Ct. Rep. p. 1113):

"After an experience of a hundred years of the treaty-making system of government "But the right which the Indians held Congress has determined upon a new departwas only that of occupancy. The fee was in ure,-to govern them by acts of Congress. the United States, subject to that right, and This is seen in the act of March 3, 1871, could be transferred by them whenever they embodied in § 2079 of the Revised Statutes: chose. The grantee, it is true, would take 'No Indian nation or tribe, within the terrionly the naked fee, and could not disturb tory of the United States, shall be acknowlthe occupancy of the Indians; that occu-edged or recognized as an independent napancy could only be interfered with or de- tion, tribe, or power with whom the United termined by the United States. It is to be States may contract by treaty; but no obli presumed that in this matter the United gation of any treaty lawfully made and ratStates would be governed by such considera-ified with any such Indian nation or tribe tions of justice as would oontrol a Chris-prior to March 3d, 1871, shall be hereby intian people in their treatment of an igno- validated or impaired.' rant and dependent race. Be that is it may, the propriety or justice of their action towards the Indians with respect to their lands is a question of governmental policy,

In upholding the validity of an act of Congress which conferred jurisdiction upon the courts of the United States for certain crimes committed on an Indian reservation

within a state, the court said (p. 383, L. ed. | among the Indians or reserved for their p. 231, Sup. Ct. Rep. p. 1114): benefit. Indeed, the controversy which this "It seems to us that this is within the case presents is concluded by the decision competency of Congress. These Indian in Cherokee Nation v. Hitchcock, 187 U. S. tribes are the wards of the nation. They 294, ante, 115, 23 Sup. Ct. Rep. 115, decided are communities dependent on the United at this term, where it was held that full adStates. Dependent largely for their daily ministrative power was possessed by Confood. Dependent for their political rights. gress over Indian tribal property. In ef They owe no allegiance to the states, and re-fect, the action of Congress now complained ceive from them no protection. Because of the local ill feeling, the people of the states where they are found are often their deadliest enemies. From their very weakness and helplessness, so largely due to the course of dealing of the Federal government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power. This has always been recognized by the executive and by Congress, and by this court, whenever the question has arisen.

"The power of the general government over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection, as well as to the safety of those among whom they dwell. It must exist in that government, because it never has existed anywhere else, because the theater of its exercise is within the geographical limits of the United States, because it has never been denied, and because it alone can enforce its laws on all the tribes."

That Indians who had not been fully emancipated from the control and protec tion of the United States are subject, at least so far as the tribal lands were concerned, to be controlled by direct legislation of Congress, is also declared in Choctaw Nation v. United States, 119 U. S. 1, 27, 30 L. ed. 306, 314, 7 Sup. Ct. Rep. 75, and Stephens v. Choctaw Nation, 174 U. S. 445, 483, 43 L. ed. 1041, 1054, 19 Sup. Ct. Rep. 722.

In view of the legislative power possessed by Congress over treaties with the Indians and Indian tribal property, we may the not specially consider contentions pressed upon our notice that the signing by

of was but an exercise of such power, a mere change in the form of investment of Indian tribal property, the property of those who, as we have held, were in substantial effect the wards of the government. We must presume that Congress acted in perfect good faith in the dealings with the Indians of which complaint is made, and that the legislative branch of the government exercised its best judgment in the premises. In any event, as Congress possessed full power in the matter, the judiciary cannot question or inquire into the motives which prompted the enactment of this legislation. If injury was occasioned, which we do not wish to be understood as implying, by the use made by Congress of its power, relief must be sought by an appeal to that body for redress, and not to the courts. The legisla tion in question was constitutional, and the demurrer to the bill was therefore rightly sustained.

The motion to dismiss does not challenge jurisdiction over the subject-matter. Without expressly referring to the propositions of fact upon which it proceeds, suffice it to say that we think it need not be further adverted to, since, for the reasons previously given and the nature of the controversy, we think the decree below should be affirmed. And it is so ordered.

Mr. Justice Harlan concurs in the result.

(187 U. S. 496) ROBERT E. DOWNS, Petitioner,

v.

UNITED STATES.

from countries paying export bounty.

the Indians of the agreement of October 6, Tariff act-additional duties on imports 1892, was obtained by fraudulent misrepresentations, and concealment, that the requisite three fourths of adult male Indians had not signed, as required by the twelfth article of the treaty of 1867, and that the treaty as signed had been amended by Congress without submitting such amendments to the action of the Indians since all these matters, in any event, were solely within the domain of the legislative authority, and its action is conclusive upon the courts.

of

The Russian laws regulating the production and exportation of sugar, under which an exporter of sugar is remitted the excise tax imposed on sugar sold in Russia, and obtains a certificate because of such exportation, which has a substantial market value, allow a bounty upon the exportation sugar which, under the act of Congress of July 24, 1897, § 5 (30 Stat. at L. 205, chap. 11, U. S. Comp. Stat. 1901, p. 1693), subjects such sugar upon its importation into the United States to an additional duty equal to the entire amount of such bounty as ascertained and determined by the Secretary of the Treasury.

The act of June 6, 1900, which is complained of in the bill, was enacted at a time when the tribal relations between the confederated tribes of Kiowas, Comanches, and Apaches still existed, and that statute and the statutes supplementary thereto dealt with the disposition of tribal property, and purported to give an adequate considera- Argued October 29, 1902. Decided January

tion for the surplus lands not allotted

[No. 318.]

5, 1903.

*501

497

ON

See same case below, 51 C. C. A. 100, 113 Fed. 144.

N WRIT of Certiorari to the United | dutiable under the provisions of this act, States Circuit Court of Appeals for the then upon the importation of any such artiFourth Circuit to review a decree which af- cle or merchandise into the United States, firmed a decree of the Circuit Court for the whether the same shall be imported directly District of Maryland affirming the action of from the country of production or otherwise, the board of general appraisers holding an and whether such article or merchandise is importation of sugar from Russia subject to imported in the same condition as when exthe additional duty leviable upon merchan- ported from the country of production or dise upon which a bounty is paid upon ex- has been changed in condition by remanuportation. Affirmed. facture or otherwise, there shall be levied and paid, in all such cases, in addition to the duties otherwise imposed by this act, an additional duty equal to the net amount of such bounty or grant, however the same be paid or bestowed. The net amount of all such bounties or grants shall be from time clared by the Secretary of the Treasury, who to time ascertained, determined, and deshall make all needful regulations for the identification of such articles and merchandise and for the assessment and collection of such additional duties."

Statement by Mr. Justice Brown:

This was a writ of certiorari to review a

decree of the circuit court of appeals, affirming a decree of the circuit court for the district of Maryland, which itself affirmed the action of the board of general appraisers, holding a cargo of refined sugar imported into Baltimore from Russia subject to a countervailing duty leviable upon merchandise upon which a bounty is paid upon exportation.

A bounty is defined by Webster as "a preThe proceedings were instituted by a pe- list into the public service; or to encourage mium offered or given to induce men to entition filed in the circuit court setting up any branch of industry, as husbandry or the importation of sugar on the steamship manufactures." And by Bouvier as "an adAssyria July 6, 1899, the imposition of a ditional benefit conferred upon or a compencountervailing duty by the collector of cus-sation paid to a class of persons." In a toms at Baltimore, and the payment of the conference of representatives of the princisame under protest, and the fact that the decision of the collector had been affirmed Brussels in 1898 for the purpose of considpal European powers, specially convened at by the board of general appraisers. The grounds stated in the petition for a reviewering the question of sugar bounties, the are, generally, that the country from which definition of bounty was examined by the the sugar was exported did not pay or be- conference sitting in committee, who made the following report: stow, directly or indirectly, any bounty or grant upon the exportation of said sugar.

"The conference, while reserving the question that may be authorized, if need be by tion of mitigations and provisional disposiion that bounties whose abolition is desir reason of exceptional situations, is of opinable are understood to be all the advantages the fiscal legislation of the states, and that, conceded to manufactures and refiners by directly or indirectly, are borne by the public treasury."

The return of the general appraisers contained а copy of the proceedings before them, including a copy of the Russian law and regulations, a stipulation of facts, a copy of certain reports from the United States consul at Odessa, and their opinion overruling the protest, and affirming the decision of the collector. The circuit court affirmed the action of the general appraisers, and upon appeal to the circuit court of ap-lly: peals that court in turn affirmed the decree of the circuit court. 51 C. C. A. 100, 113 Fed. 144.

Mr. Ernest A. Bigelow for petitioner. Assistant Attorney General Hoyt for respondent.

"Mr. Justice Brown delivered the opinion of the court:

"There should be classified as such, nota

"(a) The direct advantages granted in case of exportation.

(b) The direct advantages granted to production.

"(c) The total or partial exemptions from taxation granted to a portion of the manufactured products.

"(a) The indirect advantages growing out of surplus or allowance in manufacturing effected beyond the legal estimates.

"(e) The profit that may be derived from an excessive drawback.

This case involves the single question whether, under the laws and regulations of Russia, a bounty is allowed upon the export of sugar, which subjects such sugar, upon "In addition, the conference is of opinion its importation into the United States, to an that advantages similar to those resulting additional duty equal to the entire amount from the bounties hereinbefore defined may of such bounty, under the act of Congress of be derived from the disproportion between July 24, 1897 (30 Stat. at L. 205, chap. 11, the rate of customs duties and that of conU. S. Comp. Stat. 1901, p. 1693), which sumption dues (surtaxes), especially when reads as follows: the public powers impose, incite, or encour*"Sec. 5. That whenever any country, de-age combinations among sugar producers. pendency, or colony shall pay or bestow, di- "It would be desirable to regulate surrectly or indirectly, any bounty or grant up- taxes in such manner as to confine their op on the exportation of any article or mer-eration to the protection of home markets.” chandise from such country, dependency, or A bounty may be direct, as where a cercolony, and such article or merchandise is tain amount is paid upon the production or

exportation of particular articles, of which | home consumption at 35,000,000 poods, and the act of Congress of 1895, allowing a boun- the probable production at 50,000,000 poods, ty upon the production of sugar, and Rev. of the daily production of each factory Stat. §§ 3015-3027 [U. S. Comp. Stat. 1901, will be set apart as "free sugar" by the inpp. 1989-1994], allowing a drawback upon spector, and (less a certain portion of "incertain articles exported, are examples; or divertible reserve") will be set apart as surindirect, by the remission of taxes upon the plus. exportation of articles which are subjected to a tax when sold or consumed in the country of their production, of which our laws, permitting distillers of spirits to export the same without payment of an internal revenue tax or other burden, is an example. United States v. Passavant, 169 U. S. 16, 42 L. ed. 644, 18 Sup. Ct. Rep. 219.

The laws of Russia, regulating the production and exportation of sugar, are very complicated, not easily understood, and too long to justify their full incorporation in this opinion. Such, however, as bear upon the question of bounty are reproduced from a translation of the Russian law of November 20, 1895, and regulations thereunder, the accuracy of which is stipulated by the parties, together with certain statements also stipulated to be read as evidence.

"(4) Under the Russian law therefore all sugar is divided into the three following classes:

"a. Free sugar,' which consists of a cer-* tain quantity of sugar which the Russian government permits a factory or refinery to sell for home consumption under an excise tax of 1.75 rubles per pood."

"b. An 'obligatory or indivertible reserve' of sugar, which consists of a certain quantity kept at each factory or refinery by or der of the government, and which may not be sold or removed without the special permission of the government."

The object of this reserve is to enable the Minister of Finance, in case the price in the home marl.et exceeds the price fixed as a maximum, to authorize the issue of sugar from this reserve upon payment of the usual tax in quantities sufficient to bring about a reduction in prices.

ular tax of 1.75 rubles and an additional tax of 1.75 rubles, or 3.50 rubles in all.”

The objects of the Russian law are stated in the words of a recent note delivered to the representatives of the powers at St. Peters- "c. Free reserve or free surplus,' which burg. as follows: "The Russian govern- consists of such sugar as is manufactured ment only regulates the distribution of ove and above the quantity of 'free sugar' sugar on its home market, its purpose be- and 'obligatory or indivertible reserve.' ing, on the one hand, to antagonize over- This sugal cannot be sold for home conproduction of sugar, and, on the other, grad-sumption except upon payment of the reg ually to bring about lower prices and greater consumption for that product in this country. It protects home consumption against rises in the prices, and production against sudden and considerable falls." Counsel for petitioner insists that the chief object of the government is to prevent, or at least to discourage, over-production with its attendant evils, and, to accomplish this, the law penalizes over-production by imposing thereon double the regular excise tax.

From the stipulation of facts it appears that at the opening of each sugar campaign a committee of ministers, upon a report of the Minister of Finance

"(1) Estimates the total consumption and the total production of sugar, and the total amount which may be put upon the market at the normal excise of one and three-fourths rubles (a current ruble being equal to about 51 cents) per pood (of 36 pounds) is definitely fixed at the total amount required for consumption." (This excise amounts to about 2 cents per pound.) "This is known as free sugar."

"(2) The first 60,000 poods produced by each factory is free sugar. The balance of the production is divided into free sugar, obligatory reserve, and free surplus or free re

serve.

The Russian government also fixes and determines (a) the total quantity of sugar required for home consumption from all the factories and refineries, that is, free sugar; (b) the quantity of sugar to be kept by cach factory as an obligatory reserve; (c) the maximum of prices during the prevalence whereof such reserve must remain intact in the factories, as well as the conditions under which the sugar in reserve can be put on the market.

2. The quantity of sugar produced in excess of the amount for home consumption (free sugar) is considered as an excess of production, and when sold is subject to a double tax.

3. This excess is distributed among the factories in proportion to the quantity of sugar produced by each of them over and above 60,000 poods.

4. The obligatory reserve of sugar to be kept by each factory is derived and completed from the quantity of sugar in excess of the normal quantity, by taking from such excess the necessary percentage to constitute the prescribed reserve.

5. Sugar in excess of the normal production cannot be put on the home market "(3) The amount of free sugar in each otherwise than upon payment of an addifactory is proportioned to its total produc- tional tax, the normal tax being payable ac tion, as the estimated consumption is to the cording to the general regulation. Howtotal production of the country. This per- ever, it is allowed to the manufacturers to centage is fixed by the government according keep this excess of sugar as free reserve, and to the estimates of production and consump-in such case, so long as the sugar does not tion." leave the factory, they are not required to

For instance, if the ministers estimate the pay either the additional or regular excise.

802.

6. The sugar in the obligatory reserve is not liable to the payment of tax until it is withdrawn by permission under the conditions indicated in § 7.

"7. In cases where the prices in the home market exceed the normal prices fixed, the Minister of Finance authorizes the issuance of sugar from the obligatory reserve and from the free reserve (if necessary) in sufficient quantities to cause a decrease of price without payment of the additional tax, but with payment of the normal excise."

"8. In case of loss without the fault of the manufacturer, of sugar comprised in the obligatory or free reserve, the Minister of Finance is authorized to strike the lost sugar from the factory's account, without exacting the excise and additional tax charged against it."

being merely to do equal justice to all,-it permits the seaboard manufacturer to export his free sugar without tax, and to assign his right to the interior manufacturer to sell as much additional free sugar as is represented by the amount exported, or convert his "surplus" into "free sugar," thus saving the additional tax.

The method by which this assignment is effected is shown by the following regulations of the government "on transfers of free sugar from one mill to another in order to facilitate the exportation of the surpluses to foreign countries:"

"Sec. 39. A manufacturer may cede to another manufacturer his right to place on the home market free, i. e., without the payment of an additional tax, his allotted quota of

sugar.

"9. Upon the exportation from the facto- "Sec. 40. In relation to such cession the ries of the excess of sugar the same is ex-following rules may be observed: empted from the excise and additional tax in full measure."

"(1) The manufacturer who assigns to another manufacturer his right to dispose of For the purpose of insuring to the domes- a certain quantity of sugar free must give tic manufacturer a profitable home market, notice thereof to the local excise board, the Russian government imposes a duty of which first orders to be held at the mill o 3 rubles per pood (practically prohibitive) quantity of free sugar equal to that about upon imported sugar. Upon the other hand, to be assigned, and immediately thereupon and to insure to the consumer a reasonable duly communicates with the excise board price, it fixes a maximum price, during the having jurisdiction of the mill in whose faprevalence of which the obligatory reserve vor the assignment is being made. must remain intact. This reserve is set "(2) If the assignment is accepted by the aside from the production of each mill, so latter mill, the quantity of free sugar in that when the prices in the home market said mill is correspondingly increased by rise beyond the maximum fixed, the Minister transfer from the free surplus (not from the of Finance authorizes the sale of sugar from indivertible reserve), of which a memoranthe obligatory reserve, and from the free re-dum is made by the excise officers in charge; serve if necessary, in sufficient quanties to thereupon the excise board, from which the reduce the price, upon payment only of the communication in relation to the assignment normal excise. The amount of free sugar to of free sugar has been received, is notified which each factory is entitled is determined of the acceptance of said assignment. by the ministry upon the basis of the prob able national consumption and the probable production, the product of every factory being divided according to the ratio between these estimates. Each manufacturer can sell his quota of free sugar upon the home market upon the payment of the normal excise of 1.75 rubles per pood. He can only place his surplus upon the home market by paying a double excise; but he may leave it in the mill where it is not subject to the tax; or he may have it transferred to the production account of the next campaign, where it will serve him to increase the amount on which his percentage of free sugar is estimated; or he may export it free from excise. The last alternative is the one usually adopted.

It frequently happens, however, that a manufacturer located near a seaport town is unable to find a market for his free sugar at home, but by a remission of the excise may export his sugar to some foreign country at a profit, while the manufacturer in an interior town may be able to dispose of a much larger amount of "free sugar" than he is entitled to put upon the market, but is located too far from the seaboard to export at a profit. As the government is interested only in the amount of free sugar produced, and not in the particular person producing it, the allotment to each factory 23 S. C.-15.

"(3) Upon receipt of the notification that the assignment has actually been accepted, the quantity of 'free sugar' at the factory by which the assignment has been made is correspondingly reduced by transferring the same into the free surplus (or free reserve), of which a memorandum is made by the ex cise officer in charge.

"(4) The reduction of the quantity of free sugar at one mill and the increase thereof by assignment at another mill are entered in the proper books of the mill.”

It thus appears that, by a series of book entries carried on under the direction of the local excise board having jurisdiction of the mill of the assignor, and the corresponding board having jurisdiction over the mill of the assignee, and without any actual transfer of sugar from one mill to the other, or the issue of a certificate, the "surplus" sugar of the assignee manufacturer is converted into "free sugar," which he can sell at the normal excise, and the "free sugar" of the assignor manufacturer has become "surplus," which he can place on the home market by paying the double tax (practically prohibitory), leave in the mill where it is not subject to the tax, have transferred to the production account of the next year, or export to a foreign country.

Should the assignor manufacturer deem it best to adopt the last alternative of ex

90.