* * * nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to be in themselves, and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives. These grants have been understood by all to convey a title to the grantees, subject only to the Indian right of occupancy. The power now possessed by the Government of the United States to grant lands, resided, while we were colonies, in the crown, or its grantees. * * * The existence of this power must negative the existence of any right which may conflict with, and control it. An absolute title to lands can not exist, at the same time, in different persons, or in different governAll our institutions recognize the absolute title of the crown, subject only to the Indian right of occupancy, and recognize the absolute title of the crown to extinguish that right. This is incompatible with an absolute and complete title in the Indians." ments. * * * Marshall, C. J., Johnson v. McIntosh (1828), 8 Wheaton, 543. It was there- This opinion is quoted by Mr. Clayton, Sec. of State, to Mr. Squier, May 1, 1849, No distinction was taken between vacant lands and lands occupied by the Indians. The title, subject only to the right of occupancy by the Indians, was admitted to be in the King, and he could grant the lands away, or reserve them for the Indians, Johnson v. McIntosh, 8 Wheaton, 543; Jones v. Meehan (1899), 175 U. S. 1. "It has been generally accepted that aboriginal inhabitants in a savage state have not such a title to the land where they may dwell or roam as to enable them to confer it upon individuals, especially from another country." Mr. Fish, Sec. of State, to Mr. Hackett, June 12, 1873, 99 MS. Dom. Let. 207. The United States received from Great Britain by the treaty which terminated the Revolution a ratification of prior title to all the lands within their boundaries, subject only to the Indian right of occupancy.a Grants made by Congress in lands reserved to the Indian by treaty operate only after the extinguishment of the Indian title.' a Op. 321, Berrien, 1830. 63 Op. 56, Butler, 1836; 3 Op. 205, Butler, 1837. The removal of the Creeks from their reserved lands, without an intention to return, was an abandonment that caused the right of occupancy and possession to vest immediately in the United States." In certain cases the national capacity to hold absolute title to lands in fee has been specially conceded to Indians by treaty, as in the case of the Choctaws; but, otherwise, there exists only the right of occupancy. (3) TREATIES. By the act of Congress of March 3, 1871, 16 Stat. 566, Rev. Stats. $2079,no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty; but no obligation of any treaty lawfully made and ratified with any such Indian nation or tribe prior to March 3, 1871, shall be hereby invalidated or impaired." Since the passage of this act, agreements with the Indian tribes have been made, subject to the approval of Congress. An Indian treaty, when duly solemnized, is as much a law of the land as is a treaty with a foreign power. Turner v. Miss. Union, 5 McLean, 344; 1 Op. 465, Wirt, 1821. When it is ratified in due form, the courts cannot inquire whether the tribe was properly represented by the headmen who, assented to it. Fellows v. Blacksmith, 19 How. 366. An Indian treaty, like other treaties, may be rendered municipally ineffective by subsequent inconsistent Federal legislation; but it overrides inconsistent State laws. Cherokee Tobacco, 11 Wall. 616, affirming 1 Dill. 204; Love . Pamplin, 21 Only the United States can enforce the removal of the Seneca Indians under the treaties by which they agreed to remove west of the Mississippi. Fellows v. Blacksmith, 19 How. 366. A question of disputed boundary may be settled by the United States and an Indian tribe, between whom a previous treaty had been #3 Op. 230, Butler, 1837; 3 Op. 389, Grundy, 1838. 3 Op. 322, Butler, 1838. See, also, Cherokee Nation v. Southern Kansas Railway Co., 135 U. S. 641, supra, 33. made, which left the boundary in some respects uncertain; and private rights are bound thereby. Lattimer . Poteet, 14 Pet. 4. It is competent for the United States in the exercise of the treatymaking power to stipulate, in a treaty with an Indian tribe, that within the territory thereby ceded the laws of the United States, then or thereafter enacted, prohibiting the introduction and sale of spirituous liquors in the Indian country shall be in full force and effect until otherwise directed by Congress or the President of the United States. Such a stipulation operates proprio vigore and is binding upon the courts although the ceded territory is situate within an organized county of a State. U. S. v. Forty-three Gallons of Whisky, 93 U. S. 188. Indian treaties are to be construed, other things being equal, liberally to the Indian parties. Kansas Indians, 5 Wall. 737; Jones r. Meehan (1899), 175 U. S. 1. In Meigs . McClung, 9 Cranch, 11, it was held that a treaty with the Cherokees concerning lands, being the contract of both parties, could not be controlled as to its plain terms by the acts of an agent of the United States. Where the right of an Indian tribe to the possession and use of certain lands, as long as it may choose to occupy them, is assured by treaty, a grant of such lands, absolutely cum onere, by Congress, to aid in building a railroad, violates an express stipulation; and a grant in general terms of "land" cannot be construed to embrace them. The act of March 3, 1863 (12 Stat. 772), to aid in the construction of certain railroads in Kansas, embraces no part of the lands reserved to the Great and Little Osages by the treaty of June 2, 1825 (7 Stat. 240), and the treaty concluded September 29, 1865, and proclaimed January 21, 1867 (14 Stat. 687), neither makes nor recognizes a grant of such lands. The effect of the treaty is simply to provide that any right of the companies designated by the State to build the roads should not be barred or impaired by reason of the general terms of the treaty, but not to declare that such rights existed. Leavenworth, etc. Railroad Co. v. United States, 92 U. S. 733. By the treaty with the Ottawas, the United States agreed with the Ottawas to pay to a certain person a certain sum of money. It was held that the money must be paid, without requiring proof of the justice of the claim. 2 Op. 562, Taney, 1833. By a treaty with the Miami Indians the United States agreed to grant to each of certain persons a section of land out of the territory ceded by the treaty. It was advised that no other parcels than those defined could be substituted for them. 2 Op. 563, Taney, 1833. 6. THE HOLY SEE $18. The Pope, though deprived of the territorial dominion which he formerly enjoyed, holds, as sovereign pontiff and head of the Roman Catholic Church, an exceptional position. Though, in default of territory, he is not a temporal sovereign, he is in many respects treated as such. He has the right of active and passive legation, and his envoys of the first class, his apostolic nuncios, are specially privileged. Nevertheless he does not make war, and the conventions which he concludes with states are not called treaties, but concordats. His relations with the Kingdom of Italy are governed, unilaterally, by the Italian law of May 13, 1871, called "the law of guarantees," against which Pius IX and Leo XIII have not ceased to protest. Rivier, Principes du Droit des Gens, I. 120–123. "Your dispatch No. 379, on the subject of the reception of the Papal nuncio and your visit to him, has been read with much interest. "While the probabilities seem to be almost entirely against the possibility of the restoration of any temporal power to the Pope, he is still recognized as a sovereign by many of the powers of the world, which receive from him diplomatic representatives in the person of either a nuncio or a legate, or possibly in some other capacity, and which powers also accredit to him certain diplomatic representatives. "With all such arrangements this Government abstains from interference or criticism. It is the right of those powers to determine such questions for themselves; and when one of them, at whose court this Government has a representative, receives a representative from the Pope of higher rank than that of the representative of the United States, it becomes the duty of the latter to observe toward the Pope's representative the same courtesies and formality of the first visit, prescribed by the conventional rules of intercourse and ceremonial, and of the precedence of diplomatic agents, which have been adopted and almost invariably acted upon for the last sixty years. "In the case which forms the subject of your very interesting dispatch you pursued the course which alone would have been expected from one of your accustomed prudence and of your experience and familiarity with the proprieties of such occasions." Mr. Fish, Sec. of State, to Mr. Cushing, Minister to Spain, June 4, 1875, For. See, as to the withdrawal of the exequaturs of consuls of the Pontifical States, "I have to acknowledge your letter of the 23d instant, inquiring, by a series of interrogatories (twelve in number), whether it is compatible with his official duty for the United States minister to Italy to present to His Holiness the Pope and Cardinal Simeoni a memorial from the creditors of Archbishop Purcell and transmit the reply thereto, or whether the minister can be instructed by this Department to do so personally or through an agent. "To these questions I reply: This Government, when seeking redress for citizens of the United States from residents in Italy, is limited to diplomatic appeals to the King of Italy, either through its minister at Rome or His Majesty's minister at Washington. It can not address the Pope personally, and a minister to a foreign country can only communicate officially with persons living under its sovereignty through the channels of customary international intercourse. "It is not consistent with the public service for one of our foreign ministers to press on the tribunals, ecclesiastical or lay, of the Government to which he is accredited, the collection of private debts. The foreign minister, in seeking redress under his Government's instructions for injuries to his country or its citizens, must alone address the sovereign to whom he is accredited; and what the minister can not be instructed to do officially he can not be authorized to do in his private capacity, either personally or through an agent." Mr. Bayard, Sec. of State, to Mr. Dwyer, Nov. 7, 1887, For. Rel. 1887, 642; copy transmitted on the same day to Mr. Stallo, United States minister to Italy, for his information, id. 641. IV. THE STATE AND ITS GOVERNMENT. 1. DISTINCTION BETWEEN STATE AND GOVERNMENT. § 19. Although, in speaking of the state, we commonly think of the organization called the government, yet the two ideas are separable. While it is true that a new state is not recognized till a government has been established in it capable of performing international obligations, yet it is also true that, after such recognition has once been given, the state may continue to exist, and its existence may continue to be acknowledged, even though the government may have been overthrown by an alien invader or destroyed by domestic factions, so that for the time being there is no organization that can be treated as the repository of the national power. Of these distinctions ample illustrations will be found in the next chapter, under the title "Recognition." |