Dukes v. McKenna

Townsend, J. The appellants insist that the only question involved in this case is the constitutionality of the act of congress of February 18, 1901, the first section of which is as follows: “Be it enacted by the senate and house of representatives of the United States of America in congress assembled, that section five hundred and four and the succeeding sections down to and including section five hundred and nine, section nine hundred and sixty, and the succeeding sections down to and including section one thousand and thirty-five, of the laws of Arkansas, as published in eighteen hundred and eighty-four in the volume known as Mansfield’s Digest of the Statutes of Arkansas be, and the same are hereby, extended over and put in force in the Indian Territory, so far as they may be applicable and not in conflict with any law of Congress applicable to said Territory heretofore passed.” 31 Stat. (U. S.) 794, § 1. The sections of Mansfield’s Digest numbered 504 to 509, inclusive, of the Arkansas statute, appellants state “authorize the county courts of that state to grant certain turnpike and toll bridge privileges, where the court found that the public convenience demanded it, and to fix the rates which may be charged by the grantee. These sections make no provision for compensation to the owner of the fee, because it was contemplated that these privileges would only be granted where public roads already existed in that state; and congress, in seeking to adopt it for use in the Indian Territory, seems to have overlooked entirely making any provision for compensation to the tribes or individual Indians who might be damaged thereby.” The appellants seem to base their contention that the above act is unconstitutional on the ground that congress has overlooked compensation to the owners of the fee. This involves consideration of the question as to what title these tribes have to the lands. The government of the United States 162 have made many treaties and agreements with these tribes or nations of Indians, commencing as early as 1820, and followed by many others. On March 23, 1842, the government issued a patent to the Choctaw Nation, by which it conveyed and granted certain lands to said nation “in fee simple to them and their descendants, to inure to them while they shall exist as a nation and live on it, liable to no transfer or alienation except to the United States or with their consent.” Thus early was it evident that the “fee simple” mentioned was a base or qualified fee. That the ultimate title is, and always has been, in the United States, appellants cite article 1 of the treaty of 1855, as follows: “And pursuant to an act of congress, approved May 28,th, 1850, the United States do hereby forever secure and guarantee the lands embraced within the said limits, to the members of the Choctaw and Chickasaw tribes, their heirs, and successors, to be held in common; so that each and every member of either tribe shall have an equal, undivided interest, in the whole, provided, however, no part thereof shall ever be sold without the consent of both tribes; and that said lands shall revert to the United States, if said Indians and their heirs become extinct, or abandon the same.” 11 Stat. 612. But is there any question as to the power of congress in its wisdom to legislate as it chooses in regard to these tribes or nations of Indians? The Supreme Court of the United States has frequently had this subject under consideration, and, if we correctly apprehend the views expressed and decided by that court, the power of congress'is not limited by the stipulations in the various treaties and agreements made with those tribes whenever congress deems it wise and proper to legislate in such way as it may affect the provisions of said treaties or agreement^. We herewith cite some of the decisions of that court that, it seems to us, dispose of the question involved in this case as contended by appellants. In Cherokee Nation vs Georgia 5 Pet. 1, 7, 8 L. Ed. 25, Chief Justice Marshall said that these Indian tribes “are considered by foreign nations, as well as by 163 ourselves, as being so completely under the sovereignty and domain of the United States that any attempt to acquire their lands or to form a political connection with them would be considered by all as an invasion of our territory and an act of hostility.” ' In the case of U. S. vs Kagama, 118 U. S. 375, 379, 6 Sup. Ct. 1109, 1111, 30 L. Ed. 228, this court, by Justice Miller, said: “But these Indians (Cherokees) are within the geographical limits of the United States. The soil and the people within these limits are under the political control of the government of the United States or of the states of the Union. There exist within the broad domain of sovereignty but these two. There may be cities, counties, and other organized bodies with limited legislative functions, but they are all derived from, or exist in, subordination to one or the other of these. The territorial governments owe all their power to the statutes of the United States conferring on them the powers which they exercise, and which are liable to be withdrawn, modified, or repealed at any time by congress. * * * This power of congress to organize territorial governments and make laws for their inhabitants arises not so much from the clause in the constitution in regard to disposing of and making rules and regulations concerning the territories and other property of the United States as from the ownership of the country in which the territories are, and the right of exclusive sovereignty which must exist in the national government, and can b e found nowhere else.” — citing Murphy vs Ramsey, 114 U. S. 15, 44, 5 Sup. Ct. 747, 29 L. Ed. 47. In U. S. vs Rogers, 4 How. 567, 11 L. Ed. 1105, the chief justice said: “It is true that it is occupied by the tribe of Cherokee Indians, but it has been assigned to them by the United States as a place of domicile for the tribe, and they hold and occupy it with the assent of the United States, and under their authority. * * * We think it too firmly and clearly established to admit of dispute that the Indian tribes residing withing the territorial limits of the United States are subject to their authority.” In Cherokee Nation vs Southern 164 Kan. R. Co., 135 U. S. 641, 10 Sup. Ct. 965, 34 L. Ed. 295, Justice Harlan says: “The latest utterance upon this general subject is in Choctaw Nation vs U. S., 119 U. S. 1, 27, 7 Sup. Ct. 75, 90, 30 L. Ed. 306, where the court, after stating that the United States is a sovereign nation, limited only by its own constitution, said: ‘On the other hand, the Choctaw Nation falls within the description in the terms of our constitution, not of an independent state or sovereign nation, but of an Indian tribe. As such it stands in a peculiar relation to the United States. It was capable, under the terms of the constitution, of entering into treaty relations with the government of the United States, although, from the nature of the case, subject to the power and authority of the laws of the United States when congress should choose, as it did determine in the act of March 3, 1871, embodied in section 2079 of the Revised Statutes (Ind. Ter. St. 1899, § 4289) to exert its legislative power'.” It is well settled that an act of congress may supersede a prior treaty, and that any questions that may arise are beyond the sphere of judicial cognizance, and must be met by the political department of the government. “It need hardly be said that a treaty cannot change the constitution, or be held valid if it be in violation of that instrument. This results from the nature and fundamental principles of our government. The effect of treaties and acts of congress, when in conflict, is not settled by the constitution. But the question is not involved in any doubt as to its proper solution. A treaty may supersede a prior act of congress^ and an act of congress may supersede a prior treaty. Foster vs Neilson, 2 Pet. 253, 314, 7 L. Ed. 415; Taylor vs Morton, 2 Curt. 454. Fed. Cas. No. 13,799. In the cases referred to, these principles were applied to treaties with foreign nations. Treaties with Indian nations within the jurisdiction of the United States, whatever considerations of humanity and goo'd faith may be involved and require their faithful observance, cannot be more obligatory. * * * In the case under consideration the act of congress must prevail as if the treaty were not an element to be 165 considered.” Cherokee Tobacco vs U. S. 11 Wall. 616, 20 L. Ed. 227. That was a ease where an act of congress extended the revenue laws as respected tobacco over the Indian territories, regardless of provisions in prior treaties that exempted tobacco raised by Indians on their reservations. Thomas vs Gay, 169 U. S. 271, 18 Sup. Ct. 340, 42 L. Ed. 740. Such being the position occupied by these tribes (and it has often been availed of to their advantage), and the power of congress in the premises having the plenitude thus indicated, we are unable to perceive that the legislation in question is in contravention of the constitution, and the judgment of the court below is therefore affirmed.