New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1870-12-22
TREATIES.
LIMITS AND SCOPE OF THE TREATY
H''''' MAKING POWER.

H.. cro q BOUTWELL,, Secretary o. ne Ho"S"g' ,
g. In answering the question propounded
y, vour letter Of the 29th Of September lSo' "o
that should consider a series of treaties ana stat
utes ,., A. c,oo,o,, a,a
cnictasav Indians IN L. $ stat r 6l) was provided
th,t certain claims Of the Choctaws against the 'neu
states set up under prior treaty should lie 'noh'o
FOR adudcaton to the Senate OF the United STATES Inc
senate docs not appear TO have ever audicated the
,, bv any separate action but in the Indian Appro-
raon Act Of March 3 1851 ii was provided that there
bouId b paid 10 The ChOCtaw nation or tribe OF Indians
y, account OF their claim under the nth and l2h articles
Of the treaty with said nation or tribe made the ga "
June 1855 the Of S5O00o $4,000 OF which sum s
I've Maid m money; and the residue, the Secretary u
the Treasury shall to be issued to the prop,
tborites OF the nation tribe, their reqisi'io'
Of the United states authorized by law at inc P'''
session Of Congress. -.ot .ho claim
'Prorided That in the future adjustment " i'
of the Choctaws. under the treaty aIoirS"'0 -
sum ,haI be charged against the said lnuanS' '- go
stat, p. 1857 ,s,o 10 7 :
stat u 52s) II was provided, "That al hplnopi''Va
herstof,re or hereafter made TO carry INTO euecl e"'
,,a.,rs or otherwise in behalf OF any tribe or tribes
~ Indians al or any portion OF whom shs ne ID s.'
az actual hostility 10 the Government OF tne Oh'cu
-. ipcIndice the Cherokccs, Greeks, Ch0ctaWs'
1v,icras,ws Semnoes, Wichas, and other alnn"lcu
tribes may and shall be suspended and poStpoheu "h'IS
r I'm palt M and during the discretion ana pleasure Vi
t president. - and the President further author
d 70 cxpcrd any uncxpcndcd part Of previous appro
riaops for Che benefit OF said tribes, for the re'i Oh
cb individual members Of the tribes as had beendIlNen
from hcr homes and reduced to want, on account OF
their friendship to the Government
In the Indian Appropriation act of March b 1863 Us T.
stat D. 5s2 the Secretary OF the Treasury Is author
ia apd directed I'm lien of the bonds the sum OF $50
m appropstcd for the use of the Choctaws in the act
az March 1851 pay to the Secretary Of the Interior
$4,000 for the relief and support of individual members
At Cherokee Creek Choctaw, Chickasaw, Seminole WI
chta and other affiliated tribes Of indians, who nave
been driven from their homes and reduced TO want on
account Of their friendship to the Government"
on the 2sth Of April 1896, treaty made with the
tboctaw and Chckasaw Indians o. L. s Stat p '60 the
10Th article Of which is in the following works; Inc
United states rcaifrms all obligations arising out ol
treaty stpuatons acts Of legislation with regard 10
the Chocaw and Chckasaw nations entered into prior
10 the late Rebellion and in force at that time, not IN
consistent herewith and further agrees to renew the
ravmeut Of all annutcs and other moneys accrung nm
der such treaty stpuations and acts OF legsauoh from
and after the close of the fiscal year ending the 3Oth
of June in the year 1867 The 45th article Is III THESE
words: IAN the rights privileges, and immuntes here
ofore possessed by said nations individuals thereof
or 10 which they entitled under the treaties ana
legislation heretofore made and had in connection win
them shall be, and are hereby declared 10 be- iui
force 40 far as they are consistent with the provisions Of
this treaty"
The Choctaw Indians have made requisition on the
Secretary Treasury for bonds Of the United states
" the amount OF $4,000 under the act Of March 1861;
and the question upon which you desire my opinion Is
whether such bonds may lawfully be issued to Them
without considering the effect Of other legislation on
the subect am Of opinion that the Of March B. 1885,
withdrew from the Secretary OF the Treasury the author
iy vested him by the act Of 1861 TO issue the bonds
and unless that authority is revived in the treaty Of
July 1866. il does not now exist.
But further Of opinion that such authority is re-
viyod by that treaty, if treaty have such effect BY
the treaty the United States reafirms all obligations
arising oftreaty stpulaOns or acts Of legislation
with regard to the Choctaw and Chickasaw nations,
entered prior the late Rebellion, and in force at
that time In every reasonable sense OF the word obl
cations used in that treaty. the provision in the act
Of 1861 for issuing the bonds obligation Liberal
OF construction adopted in reference to Indian
trcaties.-(5 Wall y. 1907 1t obligation which
grew out treaty stipulation and an act of legislation
ia part execution OF treaty stipulation 1t was entered
into vior the late Rebellion. 1t in force when the
Rebellion began. Thus it every part Of tn,
description in the treaty.
The sections of the treaty above quoted, together with
Others Of ts provisions place these Indians, as to all
dues from the Government Just they stood at the out
break OF the Rebellion April To reafirm Obiga
ons arising out Of repealed act of legislation, must
signify the restoration of the parties TO the positions In
which they stood when the act Of legislation wain force
The serious question however does not relate 10 the
meaning but 10 the authority OF the treaty OF 300
The statute Of March g. 1865 repeats the direction 10 the
secretary OF the Treasury in the act of March @ 1854
The treaty undertakes TO revive that direction Is such
an act within its competency
by the sixth article of the Constitution treaties as
well "a statutes, the laws of the land. There is
nothing the Constitution which assigns different ranks
treaties and statutes The Constitution itself OF
higher rank than either, by tho very structure Of the
Government. statute inconsistent with IT, and a
treaty not inconsistent with relating to subjects within
the scope Of the treaty making power, seem to stand
upon the some level and to be Of equal validity; and
(s the OF all laws emanating from an equal au-
thOrty), the earlier in date yields to the later.
In 1871 Mr.. Madison wrote as follows: Treaties as
understand Constitution, made supreme the
constitutions and laws OF the particular states, and,
like subsequent law Of the United States, pre-
existing laws Of the United States provided however
that tbe treaty be within the prerOgatiye of making
treaties. which doubt has certain limits Writings
OF Madison, Vol. /, y. 5241
In the United states agt. The Schooner Peggy
O. Cranch 81 the Supreme Court Of the United States
In opinion delivered by ChiefJustce Marshall held in
effect that treaty changed the preexstug law. and Is
much to be regarded by the Court act of Con-
gress."
In Foster and Elan agt Nelson q Peters p 253J the
Supreme Court say 'The Constitution declares treaty
20 DE law Of the land II consequently TO be regarded
in courts OF justice equivalent act Of the Leg
lAture whenever operates Of itself without the aid OF
any legislative provision :" and IN applying this prin
cpe 70 the before them say that If the treaty then
under consideration had acted directly upon the sub
ject, 1t would have repealed those acts Of Congress
which repugnant to it."
In Taylor agt. Morton "a Curtiss C. R. D. $50 IL was
held that Congress may repeal treaty 50 far as ii is
municipal law provided its subject matter is within the
legislative power Of Congress. The just correlatve Of
this proposition would seem 10 be that the treaty making
power may repeal statute provided It's subject matter
is within the province Of the treaty making power At
tOrneyGeneral Cushing in 1884, after fun examination
the subject, TO the conclusion that treaty