ment for the benefit of an Indian band which has not been recognized by the United States as constituting a tribal state.“ § 387. Policy of the United States. While the United States has power, it is not the policy of the government to disregard the occupancy of the Indians, and convey title and possession, notwithstanding the occupancy of the Indians has not been relinquished.50 While the state has no right to tax the inhabitants of an Indian reservation,51 it may tax lands held by Indians in severalty when they are not situated within any recognized Indian domain.52 A state is not obliged to give effect to the laws of an Indian tribe by the rules of international comity.53 An Indian cannot be considered a foreign subject so as to give him the right to sue in the federal courts,54 nor when sued in the state court is he entitled to remove the cause to the federal courts.55 56 § 388. Effect of treaties with Indians. Under treaties giving exclusive jurisdiction over territory to an Indian nation, laws of a state providing for licenses to enter and occupy such territory are void. The supreme court of the United States has jurisdiction to pass on the controversy, because the decision of the supreme court of the state upholding the legislation draws in question the effect of the treaty.57 A state has no power to withdraw Indians from the operation of an act of Congress which provides for the regulation of the liquor traffic with them.58 An Indian 49 United States v. Boyd, 68 Tex. 580. Gaines v. Hale, 26 Ark. 183. Moore v. County Commissioners, 2 Wyo. 22. 2 Blue Jacket v. Commissioners, 3 Kan. 299. Roche v. Washington, 19 Ind. 56, 81 Am. Dec. 378. Karrahoo v. Adams, 1 Dill. 346, Fed. Cas. No. 7614. Paul v. Chilsoquie, 70 Fed. 402. 56 Worcester v. Georgia, 6 Pet. 515, 8 L. ed. 483. Worcester v. Georgia, 6 Pet. 515, 8 L. ed. 483. 58 United States v. Holliday, 3 Wall. 407, 18 L. ed. 186; United States v. Boyd, 83 Fed. 554, 42 U. S. App. 637, 27 C. C. A. 592. The sale of liquor to an Indian is illegal. United States v. Shaw-Mux, 2 Saw. 365, Fed. Cas. No. 16,268; United States v. Osborne, 6 Saw. 407, 2 Fed. 59; United States v. Earl, 9 Saw. 82, 17 Fed. 77; United States v. Flynn, 1 Dill. 452, Fed. Cas. No. 15,124; United States v. Burdick, 1 Dak. 143, 46 N. W. 573; Renfrow v. United States, 3 Okla. 170, 41 Pac. 91. cannot separate from his tribe,59 and the prohibition by Congress of the sale of liquors to Indians is constitutional.60 § 389. Recognition of executive department followed by courts. The courts will follow the recognition of the existence of a tribal organization by the proper executive department.61 A state law in violation of the terms of a treaty with Indians cannot be enforced.62 A contract which is made in violation of a treaty with Indians and an act of Congress is void.63 § 390. Liberal construction of treaties.-The language used in treaties with Indians should be liberally construed in their favor, and laws placing upon them liabilities or obligations should not be extended beyond their plain import. The property of Indians who are under the protection of treaties and the laws of Congress is withdrawn from the operation of state laws and is not taxable. The proposition whether or not certain lands in the possession of an Indian chief and his descendants are under treaties exempt from taxation presents a federal question.& "These Indian tribes are the wards of the nation," said Mr. Justice Miller; "they are communities dependent on the United States; dependent largely for their daily food; dependent for 64 United States v. Winslow, 3 Saw. 341, Fed. Cas. No. 16,742; Ex parte Byers, 32 Fed. 408; United States v. Certain Property, 1 Ariz. 40, 25 Pac. 520; People v. Sweetser, 1 Dak. 316, 46 N. W. 455; Compo v. Jackson Iron Co., 50 Mich. 583, 16 N. W. 300. "United States v. Forty-three Gallons of Whisky, 93 U. S. 188, 23 L. ed. 846. But see United States v. Seveloff, 2 Saw. 317, Fed. Cas. No. 16,252, that certain laws relating to the sale of liquors to Indians do not extend to Alaska. United States v. Holliday, 3 Wall. 407, 18 L. ed. 182; Territory v. Cox, 6 Dak. 521; Me-shing-go-mesea v. State, 36 Ind. 316; Brown v. Steele, 23 Kan. 675. In re Race Horse, 70 Fed. 610. their political rights. They owe no allegiance to the states and receive 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 if the power. This has always been recognized by the Executive, by Congress, and by this court, whenever the question has arisen." 66 § 391. May be controlled by legislation.-The government of the United States, instead of dealing with the Indians by treaties, has the right and authority to control them by legislation, because they are within the geographical limits of the United States. It follows by necessary implication that Congress has power to legislate for their protection and for the protection of those with whom they come in contact. But as long as they maintain their tribal relations, the states possess no such power over them, because they are under no obligation of allegiance to a state, within which their reservation may exist, and, on the other hand, the state extends to them no protection.67 § 392. Technical meaning of treaties not to be considered.— The words of a treaty may be construed to exclude the right of a state to sell Indian land for taxes,68 and a treaty with Indians will be favorably construed with reference to their right to hunt. In the construction of a treaty with Indians the object should be not to consider it according to the technical meaning of its words 66 United States v. Kagama, 118 U. S. 375, 383, 6 Sup. Ct. Rep. 1109, 30 L. ed. 228: 67 United States v. Kagama, 118 U. S. 375, 6 Sup. Ct. Rep. 1109, 30 L. ed. 228; Choctaw Nation v. United States, 119 U. S. 27, 7 Sup. Ct. Rep. 90, 30 L. ed. 315; Waupe-man-qua v. Aldrich, 28 Fed. 497; In re Race Horse, 70 Fed. 605; Missouri River, Ft. S. & G. R. Co. v. Morris, 13 Kan. 316. Wau-pe-man-qua v. Aldrich, 28 69 L. ed. 497; Missouri River, Ft. S. & In re Race Horse, 70 Fed. 605. That if an Indian has parted with his lands they are subject to taxation, see Peck v. Miami County Commissioners, 4 Dill. 370, Fed. Cas. No. 10,891. by learned lawyers, but to view it in the sense in which they would naturally be understood by the Indians. A treaty between the United States and an Indian tribe may be sufficient to grant title to individuals to parts of the lands of the tribe, without an act of Congress or patent from the executive authority of the United States, if such was the intention of the treaty.70 No jurisdiction exists in the court of an action against the Choctaw Nation or its chief officers when sued in their official capacity for an alleged debt or liability of the nation, and when the judgment, if recovered, would operate against the nation."1 § 393. Indian tribe not a sovereign nation.-Congress has the power to authorize the construction of a railroad through the territory of an Indian tribe, as such tribe is not a sovereign nation. The right of eminent domain can be exercised without its consent by the United States upon the making of just compensation to the owner.72 For the purpose of determining who are the communal owners entitled to receive per capita compensation, the courts will follow Indian laws and customs so far as they create no conflict with the laws of the United States or with the purposes of the treaty or national law and justice.73 10 Jones v. Meehan, 175 U. S. 1, 20 Sup. Ct. Rep. 1, 44 L. ed. 49. "Thebo v. Choctaw Tribe of Indians, 66 Fed. 372, 13 C. C. A. 519. Cherokee Nation V. Southern Kansas R. Co., 135 U. S. 641, 10 Sup. Ct. Rep. 965, 34 L. ed. 295. The court of claims has had occasion to pass upon many claims arising from Indian depredations. See Labade v. United States, 31 Ct. of Cl. 205; Janis v. United States, 32 Ct. of Cl. 407; Brown v. United States, 32 Ct. of Cl. 432; Friend v. United States, 29 Ct. of Cl. 495; Connor v. United States, 19 Ct. of Cl. 675. New York Indians v. United States, 40 Ct. of Cl. 448. CHAPTER XIII. AMBASSADORS,, CONSULS, CONSULAR COURTS AND FOREIGN JUDGMENTS. § 412. § 413. § 414. Exemption under such statutes not waived by failure to plead. Concurrent jurisdiction with state courts. § 433. Information received in official capacity. § 434. International law part of the law of United States. |