§ 366. Method for payment of expenses.-The method followed for the payment of expenses is for the commissioner who has heard the case to send to the Department of State a statement of costs including the expenses incurred by the marshal in paying the fees of witnesses, and thereupon money is transmitted to the marshal for the payment of the fees, or, if he has paid them, for his reimbursement.223 A statute of a state which imposes on a county in which it is charged the offense has been committed the expense of returning from another state a fugitive from justice does not apply to a case where a fugitive is brought back from a foreign country.224 It is held by the Department of State that it is the duty of the demanding government to adduce the evidence which it expects to establish the criminality of the accused, and this must be done in such form and language as will be intelligible to and convenient for the court, and therefore, that a bill for the services of a translator is no proper part of the expenses of extradition.225 If the United States is forced to intervene in a conflict between the authorities of a state and those of the United States to maintain its supremacy and secure the extradition, the special expenses should be paid, in the first instance, at least, by the United States.226 A commissioner or marshal may lawfully charge such fees as are usual for analogous services rendered to the United States.227 § 367. Deserting seamen.—The United States authorities cannot, in the absence of a treaty stipulation, surrender deserting seamen. The Revised Statutes provide for the delivery up of deserting seamen to the consul or vice-consul of countries having 228 appropriate treaties.229 It would seem that no obligation is imposed by the Revised Statutes, or the British merchant shipping act, or the treaty stipulations between the United States, on the one hand, and Great Britain and Sweden and Norway on the other, on the master of a foreign vessel, or on the consuls of the foreign governments, to make arrests or reclamations of deserters for the protection of the country in which the desertions are made. These provisions seem to be intended for the benefit of the shipmaster, who may exercise his discretion in making or not making reclamation.230 In 1901, and also in 1902, complaint was made by the German government that the object of the consular convention of December 11, 1871, was defeated by shipping commissioners, particularly by those of Portland and San Francisco, who required proof that the person claimed to be a deserter was a member of the crew, and also, who required it to be shown that the offense stated by the consul in his application for arrest had actually been committed, following the procedure in extradition cases. This complaint was referred to the attorney general, who rendered an opinion to the effect that this course was justified by section 5280 of the Revised Statutes, which was designed to effectuate treaty stipulations for the return of deserters, and that the practice was not at variance with the treaty, and advised that the consul should seek a decision of the point raised by some competent court.231 § 368. Gradual extension of list of crimes included in treaties. No attempt has been made in the preceding sections to enumerate all the crimes for which extradition may be had, as these are not the same in all treaties, but the treaties with the different nations vary in this respect. The first treaty providing for the extradition of criminals was that entered into with Great Britain in 1794, which included as extraditable offenses only murder and forgery. Gradually the list has been extended, but in the treaties with some countries certain crimes are mentioned, while no reference is made to them in others. For instance, the crime of embezzlement is in some treaties an extraditable offense, and in others not. It may also be observed that in the extradition treaty 229 Rev. Stats., sec. 5280. 220 Mr. Hay, Secretary of State, to the Secretary of the Treasury, June 18, 1898, 229 MS. Dom. Let. 421. 231 For. Rel. 1903, 411-417. with Belgium concluded October 26, 1901, one of the crimes for which extradition may be had is: "Obtaining money, valuable securities, or other property by false pretenses, when such an act is made criminal by the laws of both countries, and the amount of the money or the value of the property fraudulently obtained is not less than two hundred dollars, or one thousand francs.' In the treaty with Denmark concluded January 6, 1902, among the extraditable crimes enumerated is: "Obtaining money, valuable securities, or other property by false pretenses, or receiving money, valuable securities, or other property, knowing the same to have been embezzled, stolen or fraudulently obtained, when such act is made criminal by the laws of both countries, and the amount of money or the value of the property fraudulently obtained or received is not less than $200, or kroner 740." In other extradition treaties offenses of this character are not mentioned at all. Bribery, which is generally not an extraditable offense, has been made extraditable by recent treaties with Mexico and the Netherlands. Therefore, in any given case, the treaty itself should be consulted to determine what crimes are included, as the matter is purely one of treaty regulation. § 369. Regulations of State Department.-The State Department has made regulations for the issuance of requisitions to secure the extradition of fugitives from justice. All applications should be addressed to the Secretary of State, and be accompanied by the necessary papers. The application must come from the governor of a state or territory when the extradition is sought for an offense within the jurisdiction of the state or territorial courts, and from the attorney general when the offense is against the United States. The instructions issued by the Department of State will be found in the appendix.232 232 See Appendix, I. § 381. Title of United States devested by patent. § 382. Abandonment of possession by Indians. § 383. Treaty-making power may dispose of government's title. Indian nation not a foreign state. § 384. § 389. § 390. § 391. Recognition of executive department followed by courts. May be controlled by legislation. § 392. Technical meaning of treaties not to be considered. § 393. Indian tribe not a sovereign nation. § 370. Treaties with Indians.-The Constitution confers upon Congress the power to regulate commerce with foreign nations and among the several states and with the Indian tribes.1 But. beginning with the administration of Washington, and continuing to the year 1871, it had been the practice of the government to enter into treaties with the various Indian tribes. In 1789 President Washington sent a message to the Senate, in which he stated that it was the general understanding and practice of nations not to consider any treaty as final and conclusive until ratified by the sovereign or government from whom the commissioners signing the treaty derived their powers. "This prac tice," said he, "has been adopted by the United States respectConst., art. I, sec. 8, cl. 3. 1 ing their treaties with European nations, and I am inclined to think it would be advisable to observe it in the conduct of our treaties with the Indians; for though such treaties being, on their part, made by their chiefs or rulers, need not be ratified by them, yet being formed on our part by the agency of subordinate officers, it seems to be both prudent and reasonable that their acts should not be binding on the nation until approved and ratified by the Government. It strikes me that this point should be well considered and stated, so that our national proceedings in this respect may become uniform and be directed by fixed and stable principles. In 1871, a law was enacted 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.' In some instances, although the states are not permitted to make treaties, they did enter into treaties with Indian tribes occupying land within their limits.* 3 § 371. Dawes Commission.-In the act making appropriations for current and contingent expenses, and fulfilling treaty stipulations with Indian tribes for the fiscal year ending June 30, 1894, Congress provided for a commission for the purpose of extinguishing the national or tribal title to any lands held by certain Indian tribes, with a view to such adjustment as may be requisite and suitable to enable the ultimate creation of a state or states of the Union in the territory in which such lands are situated. This commission became known as the "Dawes Commission" from the name of its chairman, Henry L. Dawes, of Massachusetts.5 21 Richardson's Messages, 61, 62. 16 U. S. Seals at Large, 566, 18 Id. 176; 19 Id. 58; Rev. Stats., sec. 2079. But it was declared that no obligation of any treaty lawfully made and ratified with any Indian nation or tribe prior to March 3, 1871, should be invalidated or impaired. See as to treaty between New York and the Mohawk Indians, 7 U. S. Stats. at Large, 61; as to treaty between state of Georgia and the Creek Nation, 7 U. S. Stats. at Large, 217; and as to treaty between the Seneca and Tuscarora Indians and individuals for the sale of lands, 7 U. S. Stats. at Large, 557, 559. 3 27 U. S. Stats. at Large, 612, 645. The section bearing on this subject is: "Sec. 16. The President shall nominate and, by and with the advice and consent of the Senate, |