lation of Congress, however, must be respected by the courts, and the only question for them to decide is whether a law has been enacted annulling or disregarding the provisions of a treaty. Where such a law has been passed, it must, notwithstanding the treaty, be enforced.

The fourth article of the treaty with Denmark, which was concluded on April 26, 1826, and abrogated, but subsequently re-vived, with the exception of one article, on the 12th of January, 1858, provided: "No higher or other duties shall be imposed on the importation into the United States of any article, the produce or manufacture of the dominions of His Majesty, the King of Denmark; and no higher or other duties shall be imposed upon the importation into said dominions of any article the produce or manufacture of the United States, than are or shall be payable on the like articles being the produce or manufacture of any other foreign country." Under a treaty made with the Hawaiian Islands in 1875, in consideration of reciprocal concessions, sugar imported into the United States was exempt from the payment of duty. It was contended that by virtue of this treaty sugar imported from Danish possessions should also be admitted free of duty; but the court held that the provisions of the treaty with Denmark were pledges that in the imposition of duties upon goods imported into one of the countries which were the produce or manufacture of the other, there should not be any discrimination against them in favor of goods of a similar character imported from any other country, and that while they placed an obligation upon both countries to avoid hostile legislation, they were not intended to prevent the special arrangements with other countries based upon a concession of special privileges.15

Likewise it was held that the treaty with the Dominican Republic was never intended to prevent special concessions, founded upon sufficient consideration, permitting the importation of specific articles into this country free from duty.16 A stipulation in

15 Bartram v. Robertson, 122 U. S. 116, 7 Sup. Ct. Rep. 1115, 30 L. ed. 1118.

16

Whitney v. Robertson, 124 U. S. 192, 8 Sup. Ct. Rep. 457, 31 L. ed. 387. Reliance was placed on the

ninth article of the treaty with the Dominican Republic: "No higher or other duty shall be imposed on the importation into the United States of any article the growth, produce or manufacture of the Dominican Re

a treaty that no higher duties shall be imposed than are placed on goods from other countries is a promise addressed to the political, and not to the judicial, department of the government.17

§ 170. Acts admitting states to Union.-The right of Indians to hunt may be revoked by an act admitting a territory to become a state, so that such Indians may be punished for a violation of the laws of the state enacted after its admission.18 The states have power to regulate matters of internal police. A state, on its admission, is vested with all the rights of dominion and Sovereignty possessed by the original states.19 The power of the state, however, to tax lands of Indians under patents issued to them by virtue of treaties made with their respective tribes may be excluded by the enabling act;20 and taxes assessed by the laws of a state upon Indian reservations conflicting with their tribal rights as guaranteed to them by treaties with the United States are illegal and void.21

public, or of her fisheries; and no higher or other duty shall be imposed on the importation into the Dominican Republic of any article the growth, produce or manufacture of the United States, or their fisheries, than are or shall be payable on the like articles the growth, produce or manufacture of any other foreign country or its fisheries." Mr. Justice Field said that "if there be any conflict between the stipulations of the treaty, and the requirements of the law, the latter must control. A treaty is primarily a contract between two or more independent nations, and is so regarded by writers on public law. For the infraction of its provisions a remedy must be sought by the injured party through reclamations upon the other.'' See as to Act of Congress claimed to be in conflict with treaty with Persia, Powers v. Comly, 101 U. S. 789, 25 L. ed. 805; Hadden v. Collector, 5 Wall. 107, 18 L. ed. 518; Sturges v. Collector, 12 Wall. 19, 20 L. ed. 255. See, also, as to discriminating duties as affected by the treaty with Por

tugal, Oldfield v. Marriott, 10 How. 146, 13 L. ed. 364.

17 Taylor v. Morton, 2 Curt. 454, Fed. Cas. No. 13,799. See, also, Ropes v. Clinch, 8 Blatchf. 304, Fed. Cas. No. 12,041; Foster v. Neilson, 2 Pet. 314, 7 L. ed. 415. Where it was claimed that a law of Congress relative to custom duties was in conflict with a treaty with Germany, it was held that the act must control, because it was of equal force with the treaty and of later date. North German Lloyd S. S. Co. v. Hedden, 43 Fed. 17.

18 Ward v. Race Horse, 163 U. S. 511, 16 Sup. Ct. Rep. 1078, 41 L. ed. 246, reversing same case in 70 Fed. 608.

19 Escanaba etc. Co. v. Chicago, 107 U. S. 678, 2 Sup. Ct. Rep. 185, 27 L. ed. 442.

20 The Kansas Indians, 72 U. S. (5 Wall.) 737, 18 L. ed. 667.

21 Fellows v. Denniston ("The New York Indians''), 72 U. S. (5 Wall.) 761, 18 L. ed. 708.

"Doubtless the rule that treaties should be so construed as to uphold the sanctity of the public faith ought not to be departed from. But that salutary rule should not be made an instrument for violating the public faith by distorting the words of a treaty, in order to imply that it conveyed rights wholly inconsistent with its language and in conflict with an act of Congress, and also destructive of one of the rights of the states.

22

§ 171. Treaties with Indians.-Subsequent treaties with Indians were considered as modifying a prior nonintercourse law.23 The act admitting Colorado repealed the treaties with the Utes inconsistent with the act of admission.24 Notwithstanding the provisions of a treaty, Mexican grants of land in California are not effective without confirmation.25 The state of Montana, by its enabling acts, obtained jurisdiction over crimes committed by Indians.20

The treaty exempting the Osage and Kansas Indian lands from inclusion within any territory or state must yield to the act of Congress creating the territory of Oklahoma, which included such lands within its limits.27 The law of that territory subjecting to taxation cattle which are kept or grazed on the Indian reservation is not violative of the rights of the Indians, because such taxation is not placed upon the lands or privileges of the Indians.28

§ 172. Acts of admission affecting navigable waters.-A clause in the act of admission of a state declaring that the navigable

22 Ward v. Race Horse, 163 U. S. 511, 16 Sup. Ct. Rep. 1078, 41 L. ed. 246, per Mr. Justice White. In that case Mr. Justice Brown dissented, because the opinion of the court seemed to him to imply and sanction a distinct repudiation by Congress of a treaty with the Bannock Indians.''

23 Clark v. Bates, 1 Dak. 50, 46 N. W. 512.

24 United States v. McBratney, 104 U. S. 623, 26 L. ed. 870.

Botiller v. Dominguez, 130 U. S. 247, 9 Sup. Ct. Rep. 527, 32 L. ed. 929, citing cases.

28 Draper v. United States, 164 U. S. 243, 17 Sup. Ct. Rep. 108, 41 L. ed. 420. In a case arising in Oregon, the court conceded that an act of Congress might repeal a treaty, but held that the act of admission should not be construed on account of its silence on the subject as having the effect to modify the treaty. United States v. Bridleman, 7 Saw. 251, 7 Fed. 902.

Thomas v. Gay, 169 U. S. 271, 18 Sup. Ct. Rep. 342, 42 L. ed. 743.

28 Thomas v. Gay, 169 U. S. 271, 18 Sup. Ct. Rep. 342, 42 L. ed. 743.

waters within the state shall be free to the United States does not in any manner affect the power which the state might exercise over the subject, if the clause did not exist.29

"The act admitting California," said Mr. Justice Field, "declares that she is admitted into the Union on an equal footing with the original states in all respects whatever. She was not, therefore, shorn, by the clause as to navigable waters within her limits, of any of the powers which the original states possessed over such waters within her limits." 30

§ 173. Damages for temporary inconvenience.-Private persons are not entitled to damages for a temporary inconvenience, in common with the public in general, caused by the exercise of a right given by law for the public benefit. The directions. of a state providing for the form and character of a bridge will control irrespective of its effect upon navigation, except as against congressional action.31

The manner in which the highways of a state, by land or by water, shall be improved for the best interests of the public is a matter for the state to determine, subject to the intervention of Congress when such highways become the means of interstate and foreign commerce. A state may exact reasonable tolls to compensate for the use of artificial facilities for the improvement of navigation.32

§ 174. Building bridges. If a bridge is built over a navigable stream in pursuance of a valid authorization from the state, it cannot be adjudged a nuisance. Nor can the provision in the act of admission "that all navigable waters within the state shall be

» Cardwell V. American River Bridge Co., 113 U. S. 205, 5 Sup. Ct. Rep. 423, 28 L. ed. 959. The clause affected by the decision was that of the act of September 9, 1850, that "All the navigable waters within the said state shall be common highways and forever free, as to the inhabitants of said state, and as to the citizens of the United States, without any tax, impost or duty therefor." Stats. at Large, 454.

30 Cardwell V. American River Bridge Co., 113 U. S. 205, 5 Sup. Ct. Rep. 423, 28 L. ed. 959. See, also, Escanaba etc. Co. v. Chicago, 107 U. S. 678, 2 Sup. Ct. Rep. 185, 27 L. ed. 442; Pound v. Turck, 95 U. S. 459, 24 L. ed. 525.

31 Hamilton v. Vicksburg etc. R. R. Co., 119 U. S. 285, 7 Sup. Ct. Rep. 208, 30 L. ed. 395.

9

32 Huse v. Glover, 119 U. S. 547, 7 Sup. Ct. Rep. 315, 30 L. ed. 490.

highways forever," impair the power of the state to grant authority for the construction of bridges over navigable streams.33

It is not a violation of the act of Congress admitting Oregon as a state to build a bridge over the Willamette river. Nor can it be assumed that Congress has exercised police power over a navigable river because it has expended money in improving its navigation.34 The act of Congress of March 3, 1899,35 authorizing the construction of bridges over navigable waters, and the obstruction of such waters by the construction of bridges, is not in conflict with the Ashburton treaty of 1842, although a substantial diversion of the water might be a violation of the treaty.36

§ 175. Head money cases.-A treaty, while primarily a compact between independent nations, may also confer private rights on citizens or subjects of the contracting powers, enforceable by the courts. The treaty during its existence is the supreme law of the land, in all courts where such rights are to be adjudicated, but such treaty may be annulled or suspended by an act of Congress. The supreme court of the United States has frequently decided statutes of a state imposing a tax on immigrants to be void, because the power to enact such statutes was vested exclusively in Congress. But Congress has power to pass such an act, and in 1882 did pass an act to regulate immigration, imposing upon the owners of vessels who should bring passengers from a foreign port into a port of the United States a duty of fifty cents for every passenger who was not a citizen of this country. This was held to be a valid exercise of the power to regulate commerce with foreign nations.37 It was contended that this act violated provisions contained in numerous treaties with friendly nations. The court said they were not satisfied that the act violated any of such treaties, or any just construction of them,

33

People v. Potrerio & B. V. R. R. Co., 67 Cal. 166, 7 Pac. 446. See, also, Scheurer v. Columbia etc. Co., 11 Saw. 575, 27 Fed. 174; State v. District Board, 76 Wis. 207, 20 Am. St. Rep. 58, 44 N. W. 977, 7 L. R. A. 340; Keator etc. Co. v. St. Croix, 72 Wis. 84, 7 Am. St. Rep. 850, 38 N. W. 537.

34 Willamette Iron Bridge Co. v.

Hatch, 125 U. S. 1, 8 Sup. Ct. Rep. 811, 31 L. ed. 629.

25 Stats. at Large, 1151.

36 Minnesota Canal & Power Co. v. Pratt (Minn.), 112 N. W. 395.

37 Edye v. Robertson (Head Money Cases), 112 U. S. 580, 5 Sup. Ct. Rep. 247, 28 L. ed. 798. See as to state statutes, "The Passenger Cases,'' 7 How. (U. S.) 283, 12 L. ed 702.