TREATIES. 436 TREATY. from the Indians shall be of any validity "unless the same be made by a treaty or convention en- tered into ])ursuant to the Constitution." This action of Congress necessarily placed the ini- tiatory steps in dealing with the Indians under the jurisdiction of the President as the treaty- making power, subject to confirmation by the Senate. The colonies and also the mother country had treated with the Indians as 'nations,' their chiefs or sachems often being designated as 'kings' — and this idea, being retained by the founders of our Government, was ingrafted into their policy. It must also be remembered that the colonies then were weak, and that the Imlian tribes were comparatively strong and capable of requiring recognition of ecjuality. Notwithstand- ing the evident anomaly of such a course, the growth in numbers and strength of the whites, and the diminishing power of the natives, this implied equality was recognized in the dealings between the two until the act of March 3, 1871. During all this time Indian titles to lands were extinguished only under the treaty-making clause of the Constitution; and these treaties, though the tribe may have been reduced to a small band, Avere iisually clothed in the same stately verbiage as the most important treaty with a great European power. It was ordered by this act of March 3, 1871, that "No Indian nation or tribe within the ter- ritory of the United States shall be acknowledged or recognized as an indeiKjndent nation, tribe, or power with whom the United States may contract by treaty," thus terminating a legal fiction which had been kept up for nearly a hundred years. It appears from the annual report of the Commis- sioner of Indian Affairs for 1890, that the Indian title to all the public domain had been extin- guished except in Alaska, in the portions included in 162 reservations, and those acquired by the Indians through purchase. As the title to res- ervations is derived in most cases from the United States, and title bj' purchase is derived directly or indirectly from the same source, it may be stated that the Indian title to all the public domain, except in Alaska, had practically been extinguished by the year 1890. It would seem, in fact, that the United States Government proceeded on the theory that all the lands within its bounds were held by the natives, and hence that their possessory right must be extinguished. The only known variation from this rule was in the case of the Uintah Utes, where an omitted portion of their claimed territory was taken possession of w'ithout agreement. From the for- mation of the Government up to March 3, 1871, C53 treaties were made with 97 different tribes or recognized tribal organizations. A natural corollary of land cessions by the In- dians to the United States Government was the establishment of reservations for these natives either within the limits of the original territory or elsewhere. These reservations, which up to March 3, 1870, were usually determined by treaty or agreement, were the restricted areas to which the Indians were confined in order to bring them more directly under the control and care of the Government, and to lessen the liabil- ity of conflict with the whites and warring be- tween the tribes. It was hoped also that by thus curbing the wandering habit these reservations might become, by the fostering hand of the Gov- ernment, the first step toward civilization. This [mlicy, which has been also followed in Canada under both French and English control, was inaugurated by the Government as early as 1786, and continued as an established policy to the present day. The earliest reservations were chief- ly formed as the direct result of the cession of lands by the tribes, thus restricting their limits, but expressly stating in the treaty defining the bounds that the portion so limited was 'allotted to' or 'reserved for' the given Indians. Up to 1890 162 of these reservations had been established. The method of establishing reservations has not been uniform, some being by treaty, some by executive order, and others by act of Congress. Those established by execu- tive order, independent of the act of Congress, were not held to be permanent before the General Allotment Act of 1887, under which the tenure has been materially changed, and all reservations, whether by executive order, act of Congress, or treaty, are held permanent. Reservations by executive order under authority of an act of Congress are those which have been authorized or established by acts of Congress and tlieir limits defined by executive order, or have been first established by executive order and subse- quently confirmed by Congress. Other respects in which the power of Congress intervenes in reference to Indian lands, or is necessary to enable the Indians to carry out their desires in regard thereto, are the following: ( 1 ) Allotments of land in severalty previous to the act of February 8, 1887, could be made only by treaty or by virtue of an act of Con- gress, but by this act general authority is given to the President for this purpose. (2) Leases of land, sale of standing timber, granting of mining privileges and right of way to railroads are all prohibited to the Indians without some enabling act of Congress, On the otlier hand, it is obligatory on the Government to prevent any intrusion, trespass, or settlement on the lands of any tribe of Indians except where their consent has been given by agreement. TREATY (OF. traite, traicte, Fr. traits, It. trattato, treaty, from ML. tractntus, treaty, agreement, from Lat. tractare, to treat, manage, frequentative of trahere, to draw, drag). A compact or agreement entered into between the governments or sovereigns of two or more States. A treaty is somewhat analogous to a contract in private law, the main differences being in the origin, purpose, and manner of enforcement. Thus a treaty is concluded with more formality than a private contract, its purposes are usually of a public character, while its enforcement rests chiefly upon the good faith of the contracting parties. The right of entering into treaty rela- tions is one of the essential attributes of sov- ereignty, and is therefore not usually per- mitted to so-called dependent States except un- der certain restrictions, nor to the component members of States having the federal system of government. So-called dependent States frequent- ly retain the right of making commercial and extradition treaties, postal and customs conven- tions, and sometimes treaties of alliance and of naturalization. Component members of con- federate States usually retain a considerable de- gree of treaty-making power, as, for example, •.*
