CRS Annotated Constitution

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Determination Whether a Treaty Has Lapsed.—At the same time, there is clear judicial recognition that the President may without consulting Congress validly determine the question whether specific treaty provisions have lapsed. The following passage from Justice Lurton’s opinion in Charlton v. Kelly369 is pertinent: “If the attitude of Italy was, as contended, a violation of the obligation of the treaty, which, in international law, would have justified the United States in denouncing the treaty as no longer obligatory, it did not automatically have that effect. If the United States elected not to declare its abrogation, or come to a rupture, the treaty would remain in force. It was only voidable, not void; and if the United States should prefer, it might waive any breach which in its judgment had occurred and conform to its own obligation as if there had been no such breach. . . . That the political branch of the Government recognizes the treaty obligation as still existing is evidenced by its action in this case. . . . The executive department having thus elected to waive any right to free itself from the obligation to deliver up its own citizens, it is the plain duty of this court to recognize the obligation to surrender the appellant as one imposed by the treaty as the supreme law of the land as affording authority for the warrant of extradition.”370 So also it is primarily for the political departments to determine whether certain provisions of a treaty have survived a war in which the other contracting state ceased to exist as a member of the international community.371

Status of a Treaty a Political Question.—At any rate, it is clear that many questions which arise concerning a treaty are of a political nature and will not be decided by the courts. In the[p.492]words of Justice Curtis in Taylor v. Morton:372 It is not “a judicial question, whether a treaty with a foreign sovereign has been violated by him; whether the consideration of a particular stipulation in a treaty, has been voluntarily withdrawn by one party, so that it is no longer obligatory on the other; whether the views and acts of a foreign sovereign, manifested through his representative have given just occasion to the political departments of our government to withhold the execution of a promise contained in a treaty, or to act in direct contravention of such promise. . . . These powers have not been confided by the people to the judiciary, which has no suitable means to exercise them; but to the executive and the legislative departments of our government. The y belong to diplomacy and legislation, and not to the administration of existing laws and it necessarily follows that if they are denied to Congress and the Executive, in the exercise of their legislative power, they can be found nowhere, in our system of government.” Chief Justice Marshall’s language in Foster v. Neilson373 is to the same effect.

Indian Treaties

In the early cases of Cherokee Nation v. Georgia,374 and Worcester v. Georgia,375 the Court, speaking by Chief Justice Marshall, held, first, that the Cherokee Nation was not a sovereign state within the meaning of that clause of the Constitution which extends the judicial power of the United States to controversies “between a State or the citizens thereof and foreign states, citizens or subjects.” Second, it held: “The Constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, had adopted and sanctioned the previous treaties with the Indian nations, and consequently admits their rank among those powers who are capable of making treaties. The words ‘treaty’ and ‘nation’ are words of our own language, selected in our diplomatic and legislative proceedings, by ourselves, having each a definite and well understood meaning. We have applied them to Indians, as we have applied them to the other nations of the earth. They are applied to all in the same sense.”376

Later cases established that the power to make treaties with the Indian tribes was coextensive with the power to make treaties[p.493]with foreign nations,377 that the States were incompetent to interfere with rights created by such treaties,378 that as long as the United States recognized the national character of a tribe, its members were under the protection of treaties and of the laws of Congress and their property immune from taxation by a State,379 that a stipulation in an Indian treaty that laws forbidding the introduction, of liquors into Indian territory was operative without legislation, and binding on the courts although the territory was within an organized county of a State,380 and that an act of Congress contrary to a prior Indian treaty repealed it.381

Present Status of Indian Treaties.—Today, the subject of Indian treaties is a closed account in the constitutional law ledger. By a rider inserted in the Indian Appropriation Act of March 3, 1871, it was 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.”382 Subsequently, the power of Congress to withdraw or modify tribal rights previously granted by treaty has been invariably upheld. Thus the admission of Wyoming as a State was found to abrogate, pro tanto, a treaty guaranteeing certain Indians the right to hunt on unoccupied lands of the United States so long as game may be found thereon and to bring hunting by the Indians within the police power of the State.383 Similarly, statutes modifying rights of members in tribal lands,384 granting a right of way for a railroad through lands ceded by treaty to an Indian tribe,385 or extending the application of revenue laws respecting liquor and tobacco over Indian territories, despite an earlier treaty exemption,386 have been sustained.

When, on the other hand, definite property rights have been conferred upon individual Native Americans, whether by treaty or under an act of Congress, they are protected by the Constitution[p.494]to the same extent and in the same way as the private rights of other residents or citizens of the United States. Hence it was held that certain Indian allottees under an agreement according to which, in part consideration of their relinquishment of all their claim to tribal property, they were to receive in severalty allotments of lands which were to be nontaxable for a specified period, acquired vested rights of exemption from State taxation which were protected by the Fifth Amendment against abrogation by Congress.387


369 229 U.S. 447 (1913).
370 Id., 473–476.
371 Clark v. Allen, 331 U.S. 503 (1947).
372 23 Fed. Cas. 784 (No. 13,799) (C.C.D. Mass. 1855).
373 2 Pet. (27 U.S.) 253, 309 (1829). Baker v. Carr, 369 U.S. 186 (1962), qualifies this certainty considerably, and Goldwater v. Carter, 444 U.S. 996 (1979), prolongs the uncertainty. See L. Henkin, op. cit., n.315, 208–216; Restatement, Foreign Relations, op. cit., n.262, Sec. 326.
374 5 Pet. (30 U.S.) 1 (1831).
375 6 Pet. (31 U.S.) 515 (1832).
376 Id., 558.
377 Holden v. Joy, 17 Wall. (84 U.S.) 211, 242 (1872); United States v. Forty–Three Gallons of Whiskey, 93 U.S. 188, 192 (1876); Dick v. United States, 208 U.S. 340, 355–356 (1908).
378 The New York Indians, 5 Wall. (72 U.S.) 761 (1867).
379 The Kansas Indians, 5 Wall. (72 U.S.) 737, 757 (1867).
380 United States v. Forty–Three Gallons of Whiskey, 93 U.S. 188, 196 (1876).
381 The Cherokee Tobacco, 11 Wall. (78 U.S.) 616 (1871). See also Ward v. Race Horse, 163 U.S. 504, 511 (1896); Thomas v. Gay, 169 U.S. 264, 270 (1898).
382 16 Stat. 566 ; Rev. Stat. Sec. 2079, now contained in 25 U.S.C. Sec. 71 .
383 Ward v. Race Horse, 163 U.S. 504 (1896).
384 Lone Wolf v. Hitchcock, 187 U.S. 553 (1903).
385 Cherokee Nation v. Southern Kansas Ry. Co., 135 U.S. 641 (1890).
386 The Cherokee Tobacco, 11 Wall. (78 U.S.) 616, 621 (1871).
387 Choate v. Trapp, 224 U.S. 665, 677–678 (1912); Jones v. Meehan, 175 U.S. 1 (1899). See also Hodel v. Irving, 481 U.S. 704 (1987) (section of law providing for escheat to tribe of fractionated interests in land representing less than 2% of a tract’s total acreage violates Fifth Amendment’s taking clause by completely abrogating rights of intestacy and devise).
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