rights of the original inhabitants were impaired to a large degree, they were not completely disregarded. They were deprived of their rights as independent nations to complete sovereignty, but it was conceded that they were rightful occupants of the soil, having a legal as well as just claim to hold its possession. As exclusive title was given to those who made discovery, it followed that the power of the original inhabitants to dispose of the soil as they pleased could not be admitted. The ultimate dominion was, according to this principle, in the different nations making discovery. By virtue of this dominion, these nations, while respecting the rights of occupancy of the natives, claimed to, and did, exercise the power to grant the soil, and grants made by them have been universally understood as conveying a title to the grantee, subject only to the right of occupancy on the part of the Indians.

§ 378. Relinquishment by Great Britain.-Great Britain, in the treaty of peace at the conclusion of the Revolution, acknowledged the United States, naming the respective states "to be free, sovereign and independent states," and "relinquishes all claim to Government Property & Territorial Rights of the same & every part thereof," 18 and the states thus acquired the powers of government and the right to the soil previously existing in Great Britain. The exclusive power to extinguish the Indian right of occupancy was vested in the government, having for the time being the constitutional right to exercise it. Hence, a title to lands under grants to private individuals made by Indian tribes or nations cannot be recognized in the courts of the United States.19

§ 379. Indian right of occupation.-A grant to a railroad company of land to which the Indian title had not been extinguished conveys the fee to the company, subject, however, to the right of Indian occupancy. Private parties cannot interfere with or

15 Treaty of 1783, art. 1; Comp. Treaties in Force, 293.

1 Johnson v. McIntosh, 8 Wheat. 543, 5 L. ed. 681. As to discoveries and settlements made by citizens of the United States in Oregon, see Shively v. Bowlby, 152 U. S. 50,

14 Sup. Ct. Rep. 567, 38 L. ed. 350. See, also, Case v. Toftus, 14 Saw. 217, 39 Fed. 733, 5 L. R. A. 688; Stockton V. Williams, 1 Doug. (Mich.) 546; Montgomery v. Ives, 13 Smedes & M. (Miss.) 173.

place in controversy the manner, time or conditions of extinguishing the Indian right of occupancy, as such questions are exclusively for the consideration of the government.20 In determining what lands are occupied, consideration should be given to the habits and modes of the life of the Indians.21 As the paramount source of title is in the United States, the government has the power to dispose of public lands situated within an Indian reservation, without the consent of the Indians.22 But an Indian right of occupancy is sufficient foundation for the maintenance of an action of ejectment.23 The fee is in the state of section 16 of every township occupied by Indians where the same has been granted to the state by the United States.24

§ 380. Cutting timber by Indians.-It may be said, generally, that timber while standing on the land is a part of the realty and can be sold only as the land could be, and as land in the possession of Indians cannot be sold by them, the timber, until rightfully severed, cannot be sold. Logs not cut for the improvement of the land may be recovered by the United States in an action of replevin. It may also be said as the Indians possess only a right of occupancy in the lands, it is presumed that they have no authority to cut and sell timber, and every purchaser from them is charged with this presumption.25 But a distinction is to be drawn where, under certain treaties and acts of Congress, Indian allottees are vested with sufficient title in their allotments, notwithstanding the restraint placed upon the alienation of the land to authorize the cutting of timber from the land for the purposes of sale, and not by way of improvements, without obtaining the sanction of the Department of the Interior.26

§ 381. Title of the United where lands were allotted to

20 Buttz v. Northern Pac. R. R. Co., 119 U. S. 55, 7 Sup. Ct. Rep. 105, 30 L. ed. 330.

21 Mitchell V. United States, 9 Pet. 746, 9 L. ed. 296.

22 United States v. Alaska Assn., 79 Fed. 156.

23 Marsh v. Brooks, 8 How. 232, 12 L. ed. 1060.

States devested by patent. So, the Chippewa Indians under a

Beecher v. Wetherby, 95 U. S. 525, 24 L. ed. 441; Roberts v. Railway Co., 43 Kan. 106, 22 Pac. 1007. 25 United States v. Cook, 19 Wall. 591, 22 L. ed. 210.

20 United States v. Paine Lumber Co., 206 U. S. 467, 51 L. ed. 1139, 15 Sup. Ct., Advance Sheets, 697, October Term, 1906.

treaty and patented to them with the restriction that they should not sell, lease or in any manner alienate the land without the consent of the President of the United States, a patent, it is held, devests the United States notwithstanding the restriction of all title to the land or timber growing on the lands; nor, under such circumstances, is there any cause of action in the United States to recover the value of the timber cut from such allotments under an improvident contract made by the allottees and the purchaser.27

§ 382. Abandonment of possession by Indians.-The right of possession in the patentee of lands in the occupancy of Indians will vest immediately on the abandonment of such possession.28 A patentee of land occupied by Indians takes it, however, subject to the right of such occupancy.29 A purchaser from an Indian acquires only a mere right of possession.30 And this right of possession may be modified by the United States at will.31 While the right of possession may pass, the Indians have no capacity to pass the fee to lands occupied by them,32 and consequently a deed from the Indians will convey no title.33

§ 383. Treaty-making power may dispose of government's title. The government's title to lands may be disposed of to Indians un

27 United States v. Auger, 153 Fed.

671. It had been held that lands allotted to Indians in severalty, subject to the conditions imposed by the general allotment act of 1887, declaring that the United States shall hold the allotted lands in trust for the allottee for twenty-five years, or so much longer as the President may determine, and then convey the same to such allottee or his heirs ir fee, and that any conveyance or contract in relation to the same made before the expiration of the period specified shall be null and void, remained the property of the United States during the term of the trust, and consequently that the government might maintain an action for the timber unlawfully cut from such lands. United States v.

Gardner, 133 Fed. 285, 66 C. C. A. 663. In view of the cases cited above, it may well be doubted if this case has not been overruled indirectly by them.

28 Snell v. Railway Co., 78 Iowa, 94, 42 N. W. 590.

Byrne v. Alas, 74 Cal. 635, 16 Pac. 526.

30

Sparkman v. Porter, 1 Paine, 471, Fed. Cas. No. 7143.

31 Caldwell v. Robinson, 59 Fed. 654.

32 East Haven v. Hemingway, 7 Conn. 186, 198.

33 Buck V. Holloway, 2 J. J. Marsh. 164; Breaux v. Johns, 4 La. Ann. 142, 50 Am. Dec. 557. See, also, Cornet v. Winton, 2 Yerg. (Tenn.) 145; Southampton v. Mecox Co., 116 N. Y. 7, 22 N. E. 389.

der the treaty-making power without the consent of Congress.34 In a word, the fee is in the United States, and the title of the Indian is but a right of occupancy.35 Lands in California, which at the date of the treaty with Mexico were occupied by Indian tribes, became a part of the public domain, and subject to pre-emption, if no claim for them was presented by the occupants to the land commissioners within the time limited by the act of Congress.3 Congress possesses the exclusive right of pre-emption to all lands lying in the territories of the United States.37 The grant to the state of the sixteenth and thirty-sixth sections comprises such sections in the occupancy of Indians.3

38

36

§ 384. Indian nation not a foreign state.-The Constitution describes the judicial power as extending to controversies between a state and its citizens and foreign states, citizens or subjects, and the supreme court of the United States has original jurisdiction in cases in which a state shall be a party. The Cherokee Nation sought to obtain an injunction to prevent the execution of certain acts of the legislature of the state of Georgia in the territory of the Cherokee Nation in that state, claiming the right to proceed in the supreme court of the United States as a foreign state against the state of Georgia. That court decided that the Cherokees are a state, having been uniformly treated as such since the settlement of the United States, but that the condition of the Indians in relation to the United States was unlike that of and other two people in existence; and they could not be denominated foreign nations nor a foreign state within the meaning of the Constitution.39

34 Mining Co. v. Dickert etc. Co., 6 Utah, 196, 21 Pac. 1007, 5 L. R. A. 267.

35 Goodfellow v. Muckey, 1 McCrary, 244, Fed. Cas. No. 5537. Indians have only a possessory right in the lands occupied by them. Cherokee Nation v. Georgia, 5 Pet. 48, 8 L. ed. 42. The dominion exercised by Great Britain over Indians was transferred to the United States. State v. Foreman, 8 Yerg. (Tenn.) 256.

36

Thompson v. Doaksum, 68 Cal. 595, 10 Pac. 200.

Johnson v. McIntosh, 8 Wheat. 543, 5 L. ed. 681; Fleliher v. Peck, 6 Cranch, 142, 3 L. ed. 142. See, also, Roberts v. M. K. T. & R. R. Co., 43 Kan. 108, 22 Pac. 1008; Blecker v. Bond, 3 Wash. C. C. 542, Fed. Cas. No. 1534.

38 Roberts v. M. K. & T. R. R. Co., 43 Kan. 108, 22 Pac. 1008.

39 Cherokee Nation v. State of Georgia, 5 Pet. 1, 8 L. ed. 25.

§ 385. General acts of Congress not applicable to Indians.— Indians are bound by acts of Congress applicable in terms to them.40 But general acts of Congress are not considered as applying to Indians unless the language is clearly intended to include them. The right of eminent domain may be exercised by the United States for the purpose of constructing a railroad across the land held by the Indians under treaty with the United States.42 The laws of a state can have no operation or effect over Indians in their tribal relations.43 But although the Indian title has not been relinquished, a state may extend its jurisdiction over a tract of Indian land within the borders of the state.44 The marriage of a white person to an Indian woman and his adoption into the tribe will, in suits between himself and other members of the tribe, confer exclusive jurisdiction on the tribal courts.45 According to the treaty between the United States and the Cherokee Nation, a murder committed by an Indian within the jurisdiction of that nation is an offense against it and not against the United States, the fifth amendment not applying."

46

§ 386. Indians becoming citizens. A state has no power to regulate in any manner the social relations of an organized Indian tribe; 47 and an Indian cannot become a citizen of the United States without its consent and co-operation.48 The courts of the United States have jurisdiction of a suit brought by the govern

United States v. Kagama, 118 U. S. 379, 6 Sup. Ct. Rep. 1111, 30 L. ed. 230.

"Elk v. Wilkins, 112 U. S. 100, 5 Sup. Ct. Rep. 44, 28 L. ed. 645.

Cherokee Nation v. Kansas Ry. Co., 135 U. S. 653, 10 Sup. Ct. Rep. 970, 34 L. ed. 301.

Kobogum v. Jackson Iron Co., 76 Mich. 507, 43 N. W. 605. "Caldwell v. State, 1 Stew. & P. (Ala.) 327.

45 Raymond v. Raymond, 83 Fed. 722, 55 U. S. App. 92, 28 C. C. A. 38.

Talton v. Mayes, 163 U. S. 383, 16 Sup. Ct. Rep. 986, 41 L. ed. 197.

The criminal laws of a state do not extend to tribal Indians living in a reservation. State v. Campbell, 53 Minn. 356, 55 N. W. 554, 21 L. R. A. 172. See, also, People v. Dibble, 16 N. Y. 221. But see unless prohibited by treaty or act admitting state, State v. Doxtater, 47 Wis. 284, 2 N. W. 241.

United States v. Barnaby, 51 Fed. 23.

48 United States v. Osborne, 6 Saw. 408, 2 Fed. 59. But see quaere in Elk v. Wilkins, 112 U. S. 119, 5 Sup. Ct. Rep. 49, 28 L. ed. 649.