relating to the Post Office Department, and brought forward as section 398 of the Revised Statutes reads: "For the purpose of making better postal arrangements with foreign countries, or to counteract their adverse measures affecting our postal intercourse with them, the Postmaster General, by and with the advice and consent of the President, may negotiate and conclude postal treaties or conventions, and may reduce or increase the rates of postage on mail-matter conveyed between the United States and foreign countries."46 Section 103 of the act of June 8, 1872,* brought forward as section 4028 of the Revised Statutes, likewise authorizes the Postmaster General to conclude arrangements with the post departments of foreign governments, with which postal conventions have been concluded, for the exchange by means of postal orders, of sums of money not exceeding in amount one hundred dollars,48 at such rates of exchange and under such regulations as may be deemed expedient. In virtue of these provisions, postal and money order conventions have been concluded by the Postmaster General with the approval of the President without submission to the Senate. Among these are the general postal union convention signed at Berne, October 9, 1874, and the universal postal union conventions signed at Vienna, July 4, 1891, at Washington, June 15, 1897, and at Rome, May 26, 1906. It has been held that the provision in Article XXV of the Regulations attached to the Berne convention, in which it was declared that no article liable to customs duties should be admitted for con

45 17 Id. 304.

46 See for careful examination of these various legislative enactments, opinion of William H. Taft, Solicitor General, March 20, 1890, 19 Op. Atty. Gen. 513, and speech of Henry Cabot Lodge in the U. S. Senate, February 29, 1912, on the proposed arbitration conventions with Great Britain and France, S. Doc. No. 353, 62d Cong., 2d Sess., 15. The conclusion by the Postmaster General, by and with the advice and consent of the President, of arrangements with adjoining countries, for the transportation of mails, is authorized by §4012, Rev. Stats.

47 17 Stats. at L. 297. Section 15 of the act of July 27, 1868. 15 Id. 196.

48 As amended by the act of January 30, 1889. 25 Id. 654.

49 19 Stats. at L. 577; 28 Id. 1078; 30 Id. 1629; 35 Id. 1639.

50 Cotzhausen v. Nazro (1882), 107 U. S. 215. In United States v. Eighteen Packages of Dental Instruments (1914), 222 Fed. 121, it is stated that the authority to enter into post conventions with other countries is to be found in the treaty-making power.

veyance by the post, was the law of the land, and that goods so imported were liable to seizure.50 Of postal conventions submitted by the President to the Senate for its advice and consent as to the ratification, prior to the passage of the act of 1872, note may be made of those signed as follows: March 6, 1844, with New Granada; December 15, 1848, with Great Britain; July 31, 1861, and December 11, 1861, with Mexico; and June 9, 1862, with Costa Rica. The ratification was in each instance advised by the Senate.51

§66. Agreements with Indian Tribes.-On July 12, 1775, three departments of Indian affairs-the northern, southern and middle-were organized and the superintendence of each placed under commissioners.52 By the general ordinance for the regulation of Indian affairs of August 7, 1786, two district were organized, the superintendents of which were placed under the immediate control of the Secretary at War.58 Treaties concluded through these agencies do not appear to have been formally ratified. In the act of August 7, 1789, for the organization of the War Department under the Constitution, the conduct of Indian affairs was recognized as belonging to the Secretary of War. Later, it was transferred to the Department of the Interior." The Senate, in approving an Indian treaty submitted for its "consideration and advice" by President Washington, May 25, 1789-the first to be submitted under the Constitution-simply advised the President "to execute and enjoin an observance." The President, in a message of September 17, requested information as to the meaning of the action of the Senate, and suggested a ratification as in case of other treaties. The committee appointed by the Senate to examine the question reported against a formal ratification; but the Senate complied with the suggestion of the President by voting, September 22, to advise and consent to the ratification.50

51 Ex. Journal, VI, 275, 321; VIII, 16, 17; XI, 497, 563; XII, 102, 116, 398, 406. See for collection of postal conventions, 16 Stats. at L. 783-1123; 17 Id. 879.

52 Journals of Congress (1800 ed.), I, 151.

53 Id., XI, 127.

54 See Id., X, 137; XI, 39, 40, 42, 44.

55 I Stats. at L. 50.

56 Ex. Journal, I, 25, 27, 28. The following entry appears in the Journal under date of May 25, 1789: "General Knox brought the following message from the President, which he delivered into the hands of the Vice-President, and withdrew." Id., 3.

This procedure was followed until 1871, during which period treaties with Indian tribes were far more numerous than those with foreign powers. In the Indian appropriations act of March 3, 1871, it was enacted that thereafter no Indian nation or tribe within the territory of the United States should be acknowledged or recognized as an independent nation, tribe, or power with which the United States might contract by treaty; but that the obligation of existing treaties was in no way to be impaired or invalidated by the act.57 No formal treaties with the Indian tribes have since been made, but agreements with them have been laid before Congress for its approval.58 "Since the act 3d March, 1871, the Indian tribes have ceased to be treaty-making powers and have become simply the wards of the nation. As such, Congress speaks for them and has become the legislative exponent of both guardian and ward."59

The peculiar status of the Indian tribes within the United States was defined in 1831 by Chief Justice Marshall, with his usual felicity of expression, as follows: "It may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may, more correctly, perhaps, be denominated domestic dependent nations. They occupy a territory

57 16 Stats. at L. 566; Rev. Stats., §2079. See section 6 of the act of March 29, 1867, and the act of July 20, 1867. 15 Stats. at L. 9, 18.

58 See, for instances, acts of Congress approved as follows: April 29, 1874, to ratify an agreement with the Ute tribe of Indians (18 Stats. at L. 36); December 15, 1874, to ratify an agreement with the Shoshone Indians (18 Id. 291); February 28, 1877, to ratify an agreement with certain bands of the Sioux Indians and certain other tribes (19 Id. 254); June 15, 1880, to ratify an agreement with the Ute Indians (21 Id. 199); April 11, 1882, to ratify an agreement with the Crow Indians (22 Id. 42); July 3, 1882, to ratify an agreement with the Shoshone and Bannock Indians (22 Id. 148); July 10, 1882, to ratify an agreement with the Crow Indians (22 Id. 157); March 1, 1889, to ratify an agreement with the Creek Indians (25 Id. 757); February 13, 1891, to ratify an agreement with the Sac and Fox Indians (26 Id. 749); March 1, 1901, to ratify an agreement with the Cherokees (31 Id. 848); March 1, 1901, to ratify an agreement with the Creek Indians (31 Id. 861); June 30, 1902, to ratify a sunpplemental agreement with the Creek Indians (32 Id. 500, 2021); and July 1, 1902, to ratify an agreement with the Choctaw and Chickasaw tribes of Indians (32 Id. 641).

59 Nott, C. J., Jonathan Brown v. United States (1897), 32 C. Cls. 432, 439.

to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases. Meanwhile they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian."80 Mr. Justice Gray, at a later date, said: "The Indian tribes within the limits of the United States are not foreign nations; though distinct political communities, they are in a dependent condition; and Chief Justice Marshall's description, that 'they are in a state of pupilage,' and 'their relation to the United States resembles that of a ward to his guardian,' has become more and more appropriate as they have grown less powerful and more dependent."1

§67. Acquisition of Territory.—Although the important acquisitions of 1803, 1819, 1848, 1853, 1867 and 1898 were made by formal treaty, territory has under special circumstances been acquired by virtue of an act of Congress. A treaty was signed at Washington, April 12, 1844, with the republic of Texas, by which that republic agreed to convey and transfer to the United States all its rights of separate and independent sovereignty and jurisdiction. On June 8, 1844, the treaty was rejected by the Senate by a vote of 35 to 16.62 In resolutions, submitted by Mr. Benton, May 13, 1844, it was declared that the ratification of the treaty would be the adoption of the Texan War; that the treaty-making power of the President and Senate did not include the power of making war, either by declaration or by adoption; and that the territory disencumbered from the United States by the treaty of 1819 ought to be united to the American Union as soon as this could be accomplished with the consent of a majority of the people of the United States and of Texas, and when Mexico should either consent to the transfer or acknowledge the independence of Texas, or cease to wage war against her on a scale commensurate with the conquest of the country. The opinion was frequently expressed that the ratification of the treaty would be the adoption of a war

60 Cherokee Nation v. State of Georgia, 5 Pet. 1, 17.

61 Jones v. Meehan (1899), 175 U. S. 1, 10, citing Cherokee Nation v. Georgia, 5 Pet. 1, 17; Elk v. Wilkins, 112 U. S. 94, 99; United States v. Kagama, 118 U. S. 375, 382, 384; Stephens v. Choctaw Nation, 174 U. S. 445, 484. See also Missouri, Kansas and Texas R. R. Co. v. United States, 47 C. Cls. 59, for resumé of legislation affecting the Indian tribes. 62 Ex. Journal, VI, 312.

63 Id., VI, 277.

with Mexico, and accordingly not within the province of the treatymaking power. To an enquiry made by the Senate whether any military preparations had been made in anticipation of war, and, if so, for what cause and with whom was war apprehended, President Tyler, in a message of May 15, 1844, replied that, in consequence of an announcement of Mexico of its determination to regard as a declaration of war the definitive ratification of the treaty of annexation, a portion of the naval and military forces of the United States had as a precautionary measure been assembled in the region of Texas. He observed further that the United States having by the treaty of annexation acquired a title to Texas, which required only the action of the Senate to perfect it, no other power could invade and by force of arms possess itself of any portion of the territory of Texas, pending the deliberations of the Senate on the treaty, without placing itself in a hostile attitude to the United States." Immediately preceding the rejection of the treaty, a resolution was introduced by Mr. Henderson declaring that the annexation would be properly achieved on the part of the United States by an act of Congress admitting the people of Texas with defined boundaries as a new State into the Union on an equal footing with the other States.65 This course was followed, and on March 1, 1845, a joint resolution was approved consenting to the erection of the territory rightfully belonging to the republic of Texas into a new State. A proviso, attached in the Senate through the efforts of Mr. Benton, gave the President an opportunity, before communicating the resolution to Texas, to resort to negotiations upon terms of admission and cession either by treaty to be submitted to the Senate or by articles to be submitted to both houses. The purpose of the proviso was to effect if possible the acquisition, and at the same time maintain peaceful relations with Mexico. Negotiations were not resorted to; and Texas, having accepted and complied with the

64 Id., VI, 274, 277, 279.

65 Id., VI, 311.

66 5 Stats. at L. 797.

67

67 Benton, Thirty Years in the United States Senate, II, 602, 619, et seq.

68 Mr. Calhoun, Secretary of State, in communicating a copy of the joint resolution to Mr. Donelson, chargé d'affaires to Texas, March 3, 1845, said: "The President has deliberately considered the subject, and is of opinion that it would not be desirable to enter into the negotiations