Vol. IV, Laws     (Compiled to March 4, 1927)

Compiled and edited by Charles J. Kappler. Washington : Government Printing Office, 1929.

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Page 1153

The Ordinance of July 13, 1787 (1 Stat. 52), for the government of the territory of the United States Northwest of the River Ohio, Section III provides:

The utmost good faith shall always be observed toward the Indians; their lands and property shall never be taken from them without their consent; and in their property, rights, and liberty they never shall be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity, from time to time shall be made for preventing wrongs being done to them, and for preserving peace and friendship with them. Ante, 1065. (1 Stat., 52.)
Unquestionably a treaty may be modified or abrogated by an Act of Congress, but the power to make and unmake is essentially political and not judicial. (Old Settlers v. U. S., 148 U. S. 427.)
The Indians are acknowledged to have an unquestionable and heretofore unquestioned right to the lands they occupy until that right shall have been extinguished by the voluntary cession to our Government. (Worcester v. Georgia, 6 Pet. 575; U. S. v. Cook, 19 Wall. 593.)

In Lone Wolf v. the United States, 187 U. S., 553, the Supreme Court said:

Plenary authority over the tribal relations of the Indians has been exercised by Congress from the beginning, and the power has always been deemed a political one not subject to be controlled by the Judicial Department of the Government. Until the year 1871 the policy was pursued of dealing with the Indian tribes by means of treaties, and of course a moral obligation rested upon Congress to act in good faith in performing the stipulations entered into on its behalf. But, as with treaties made with foreign Nations the Legislative power might pass laws in conflict with treaties made with the Indians. (Thomas v. Gay, 169 U. S. 264-270; Spaulding v. Chandler, 160 U. S. 394.)
The power exists to abrogate the provisions of an Indian treaty, though presumably such power will be exercised only when circumstances arise which will not only justify the Government in disregarding the stipulations of the treaty, but may demand, in the interest of the country and the Indians themselves, that it should do so. (Also see Conley v. Ballinger, 216 U. S. 84; Super v. Work, 55 App. D. C. 149.)

Patterson v. Jenks, 2 Pet. 216:

A treaty may supersede a prior Act of Congress; and an Act of Congress may supersede a prior Act of Congress; and an Act of Congress may supersede a prior treaty.

Chickasaw Nation v. U. S., 22 Court of Claims:

The rights of the Choctaw Nation are founded upon a treaty, an instrument which is a contract between the parties and also a law imposed by the Government upon its citizens and agents. As a contract the Chickasaws are entitled to all its benefits until it is varied by mutual consent or annulled in some manner recognized by law.

United States v. Reese, 5 Dill. 405:

The treaty making power of the United States can make a sale or grant of lands to an Indian tribe without an Act of Congress, and Congress has no right to interfere with rights under treaties except in cases purely political. (Also see Wilson v. Wall, 6 Wall. 83.)

Congress, having plenary power over the Indians, possesses the power to abrogate treaties made with Indian tribes and to pass laws concerning Indians which in effect would violate treaty obligations; but Congress and the Executive have consistently, with one or two exceptions hereafter mentioned, followed the principle announced in the Northwest Ordinance of 1787, supra.

While attempts have been made in Congress several times, especially in 1868 and 1870, relating to Osage lands, to take Indian lands without adequate compensation and without their consent, such attempts were always defeated by the leading statesmen of the time in both the House and Senate. When Congress, by the Act of March 3, 1871 (16 Stat. 566), prohibited the further making of treaties with Indian tribes, it expressly provided—

That nothing herein contained shall be construed to invalidate or impair the obligation of any treaty heretofore lawfully made and ratified. (See U. S. v. Berry, 2 McCrary, 58.)

This Act itself indicates that Congress would never knowingly violate an Indian treaty obligation.

Page 1154

When Congress passed an Act authorizing a railroad company to construct its road over the lands of Indians acquired by treaty, President Cleveland on July 7, 1886, in a veto message said:

The bill is in the nature of a general right of way through this Indian reservation. The Indian occupants have not given their consent to it; neither have they been consulted regarding it; nor is there any provision in it for securing their consent or agreement to the location or construction of railroads upon their lands.
The bill is a new and wide departure from the general tenor of legislation affecting Indian reservations. It ignores the right of the Indians to be consulted as to the disposition of their lands, opens wide the door to any railroad company to do what under the treaty covering the greater part of the reservation is reserved to the United States alone. (Messages and Papers of Presidents, vol. 8, 472.)

Thus it will be seen that when Congress overlooked the treaty rights of the Indians, the President stepped in to protect such rights.

While Congress has refrained, with one or two exceptions, from invading or violating the Northwest Ordinance of 1787, and the Act of Congress approved March 3, 1871, supra, several attempts have been made by Executive officers to take Indian treaty lands without the consent of the Indians. A case of this kind occurred when the Old Winnebago Indian Reservation in Dakota was thrown open to settlement by Executive Order issued by the President on February 27, 1885. President Cleveland in reversing such Order said:

Said Order is illegal and in violation of the plighted faith and obligations of the United States contained in sundry treaties with the Indians. * * * In order to maintain inviolate the solemn pledges and plighted faith of the Government as given in the treaties in question, and for the purpose of properly protecting the interests of the Indian tribes as well as of the United States, I declare and proclaim the said Executive Order of February 27, 1885, to be in contravention of the treaty obligations of the United States with the Sioux tribe of Indians and therefore inoperative and of no effect. (Messages and Papers of Presidents, vol. 8, p. 306.)

The Commissioner of Indian Affairs in his annual report for 1890, page 29, stated:

From the execution of the first treaty made between the United States and the Indian tribes residing within its limits (September 17, 1778, with the Delawares) to the adoption of the Act of March 3, 1871 (16 Stat. 566) that "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 " (sec. 2079, Revised Statutes), the United States has pursued a uniform course in extinguishing the Indian title only with the consent of those tribes which were recognized as having claim to the soil by reason of occupancy, such consent being expressed in treaties. During this period not less than three hundred and seventy treaties have been made and ratified.
Except in the case of the Sioux Indians in Minnesota after the outbreak of 1862, the Government has never extinguished an Indian title as by right of conquest; and in this case the Indians were provided with another reservation, and subsequently were paid the net proceeds arising from the sale of the land vacated.

And in the Wahpeton and Sisseton case, where annuities had been declared forfeited, Congress subsequently paid the Indians such annuities.

In Highrock v. Gavin, 45 S. D. 315-179, N. W. 12, the court concisely stated the procedure followed in acquiring Indian lands as follows:

The method of extinguishing Indian title by the United States is either by treaties with the Indians or statutes in aid of or having the nature of treaties.

Leavenworth R. R. Co. v. United States, 92 U. S. 733:

The Indians have the unquestionable right to the lands they occupy until it shall have been extinguished by the voluntary cession to the Government. * * * As the attempted transfer of any part of an Indian reservation secured by treaty would also involve a gross breach of the pubic faith, the presumption is conclusive that Congress never meant to grant it.

Minnesota v. Hitchcock, 185 U. S. 373:

The Indian right of occupancy has always been held to be sacred, something not to be taken from him except by his consent and then upon such consideration as should be agreed upon.

Therefore, it may be concluded that while Congress has the power to abrogate treaties or agreements between the United States and the Indian tribes and thus violate the plighted faith and obligations of the United States made to such Indian tribes, its policy in the past has been not to exercise such power, and it may be safely asserted that it will not do so in the future, except upon grave cause and in the public interest.

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