restricted access 83. Abolition of Treaty Making. March 3, 1871
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135 the United States, shall be the supreme law of the land.” It need hardly be said that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument. This results from the nature and fundamental principles of our government. The effect of treaties and acts of Congress, when in conflict, is not settled by the Constitution. But the question is not involved in any doubt as to its proper solution. A treaty may supersede a prior act of Congress, and an act of Congress may supersede a prior treaty. In the cases referred to these principles were applied to treaties with foreign nations. Treaties with Indian nations within the jurisdiction of the United States, whatever considerations of humanity and good faith may be involved and require their faithful observance, cannot be more obligatory. They have no higher sanctity; and no greater inviolability or immunity from legislative invasion can be claimed for them. The consequences in all such cases give rise to questions which must be met by the political department of the government. They are beyond the sphere of judicial cognizance. In the case under consideration the act of Congress must prevail as if the treaty were not an element to be considered. If a wrong has been done the power of redress is with Congress not with the judiciary, and that body, upon being applied to, it is to be presumed, will promptly give the proper relief. . . . [11 Wallace, 616, 620–21.] 83. Abolition of Treaty Making March 3, 1871 Because of humanitarian attacks upon the treaty system and the objections of the House of Representatives to the concentration of authority for dealing with the Indians in the hands of the Senate through its treaty-making power, Congress in 1871, in an obscure rider to the Indian appropriation bill, outlawed further treaty making with Indian tribes. An Act making Appropriations for the current and contingent Expenses of the Indian Department . . . . . . . Yankton Tribe of Sioux.– . . . For insurance and transportation of goods for the Yanktons, one thousand five hundred dollars: Provided, That hereafter 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: Provided , further, That nothing herein contained shall be construed to invalidate or impair the obligation of any treaty heretofore lawfully made and ratified with any such Indian nation or tribe. . . . [U.S. Statutes at Large, 16:566.] 84. Indian Commissioner Walker on Indian Policy Extract from the Annual Report of the Commissioner of Indian Affairs November 1, 1872 Commissioner of Indian Affairs Francis A. Walker spoke bluntly in his report of 1872 about the relationship of the federal government to the Indians. It was a harsh, practical statement, made by a man who later won renown as a statistician, economist, and educator. the indian policy The Indian policy, so called, of the Government , is a policy, and it is not a policy, or rather it consists of two policies, entirely distinct, seeming, indeed, to be mutually inconsistent and to reflect each upon the other: the one regulating the treatment of the tribes which are potentially hostile, that is, whose hostility is only repressed just so long as, and so far as, they are supported in idleness by the Government; the other regulating the treat- ...


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