Daily press and Dakotaian. [volume] (Yankton, Dakota Territory [S.D.]) 1875-1880, 1879-05-15
Of August, 1876, an act va. approved. en- En-

" ton Of any treaty lawfully made and rati
" fed with any such Indian nation or trib'
/" prior to March Sd, 1871, shall be Invalid
" ated or impaired"
If the treaty Of 1868 was not lawfully
made and ratified, why, it may be asked, did
not congress promptly so declare the fact!
From year to year, appropriations of various
kinds and of vast amounts, have been made
to carry out its provisions.
Acts of practical ratification have more
force than mere words of discomfort aud
protest accompanying them. Until sbrogat-
ed, this treaty was at least binding upon
the co%nsciences Of the judicial and execu-
tive departments of the government. as
we'll as upon those OF the people. The con-
stitution. and the laws of the:'Un;ted States
made under the authority of the United
States, are declared to be the supreme law
of the land. As long as treaty obligations
exist, they must be faithfully kept and up.
held. (See Worcester Y. The State of Geor.
gia. 6 Pet, 560-5Sl.)
Thus aside from the dissatisfaction no.
ticed, the three departments Of the govern
ment have so far concurrently acted in sup
port of the treaty and this court will hold
that it was lawfully made and ratified, and
was binding in all its parts, until VI shall
be corrected by a higher tribunal.
The contract in this case was made at
Deadwood, and was TO be performed there.
But at its date, that place was, and had
been, Get apart for the absolute and undis-
turbed use and occupation of the Indians.
As it was unlawful for the contracting
parties to settle upon the lot in controversy
in August. 1876. SO it was unlawful tor
them to assume the relation OF
landlord and tenant in regard to
it. The object of the contract
was unlawful when the contract was made.
The object was to induce the lessee to take
possession of, and to occupy the town lot,
and to erecta building for q store, and to
get rent for the ground. This written con-
tract having such unlawful object, was and
is entirely void.
When the United States solemnlv agreed
that such persons as made this writing,
should not be permitted to settle upon this
lot as long as the treaty stipulations should
exist, it amounted to q prohibition. The
treaty was the supreme law, to warn and
deter them from ench unlawful contract.
The object of the contract was, moreover,
in violation of section 21lS, OF the revised
statutes, which declares that every person
who makes settlement on any lands be-
longing, secured, or granted by treaty with
the United States to any Indian tribe. or
" surveys or attempts 10 survey such landa,
" or to designate any of the boundaries by
" marking trees, or otherwise. ia liable to a
+" penalty of one thousand dollars. The
!" president may, moreover, take such meas
" ures ard employ such military force as he
sc may judge necessary to remove any such
" person from the lands"
The contract was not only void, but the
parties were, therefore, liable to a prosecu.
ton for the penalties. But aside from the
latter consideration, such q contract cannot
be sustained either at law or in equity. For
as was said by Chief Justice fancy in Ken.
nett vs. Chambers, "a Now, 50), "as the
Sovereignty resides in the people, every
g citizen is a portion Of it, and is himself
!" personally bound by the laws, which the
" representatives of the sovereignty may
q pass, or the treaties into which they may
I" enter, within the scope of their delegated
" authority. And when that authority has
e plighted its faith to another nation that
there shall be peace and friendship be-
tween the citizens Of the Two countries,
every citizen Of the United States is equal
ly and personally pledged. The compact
IL Alduc ny tEc department VI tuc SOSeEH-
"ment upon which he himself has agreed
" to confer the power. 1t is his own per.
: sonal compact as a portion of the sover.
eighty in whose behalf it is made. And
he can do no act, nor enter into any agree.
ment to promote or encourage revolt OF
" hostilities against the territories of a coun
try with which our government is pledged
by treaty to be at peace, without a breach
OF his duty as a citizen, and the breach OF
" faith pledged to a foreign nation. And il
" he does so, he cannot claim the aid of a cour
"of justice to enforce it."
This admirable exposition of the Law
arose in a case affecting a treaty will
Mexico; and the same principle must gov
ern, in our courts, in regard to a treat,
with an Indian nation. The latter ia a
much the supreme law, as the former.
our government ,eolemnly pledges its faith
by treaty, with Indian tribes, it must eve
be held as sacred and binding as if it wer
pliRhted to civilized nations.
To maintain treaties, especially with tn
weak, is the glory of q nation; because
rebounds to its honor AMI prosperity. T,
break them, is to violate all law, and a
faith and all honor. Carthage has com
IOOVu = uS1 I0iOu6A tuO IOuk IluC vi III
centuries. as Q people characterized b
"Punic faith"
A contract is unlawful which is coutrar
to an express provision of law or contrsl
to the policy of express law, though NJ
expressly prohibited or otherwise contrar
to good morals. (See Armstrong '. Tule
II Wheat. 272; Kennett '. Chamber
supra.) And the law will not aid either {
!, two parties wLo are equally in the wron,
This case very much resembles that .
!. Dupss '. Wassell Il Dlllon's G, c. r 2l3
7 In which 1t was held that the case was vol
s. by reason Of being IL violation Of the act
congress reservinR the Hot SprinRs' land
and because the lease was sesinst nuhl
9 policy; and the lessee was not estopped
{ deny bis landlords title.
i From oil the above considerations. Il
: following ~conclusjons must be drawn:
That the plsce In which the land in al
pute liz, being also the place OF the co
ts1cs and q IL performance. was IudI,
cca6tsysto which HE Indian title vee :
mliDq1fshed until b. loFce Of lie a.,
1t aDpsovsd Fehsussy 9osh, 1871.
- thel eeYs ~ gss aloo becsme q indi