TRAVELING ALLOWANCES.

See also MILEAGE.

1. Case of allowance to a commissioner, for running the boundary line between the United States and the Mexican Republic, of expenses of his return to the place of his domicil at the time of appointment. Opinion of Feb 9, 1856, 7 Op. 627.

2. Where a naval officer traveled under orders from New York to San Francisco via the Isthmus of Panama in the years 1859 and 1860 (before the opening of the overland route): Held, that, under the second section of the act of March 3, 1835, chap. 27, he was entitled to an allowance of 10 cents per mile for traveling expenses. Opinion of May 3, 1872, 14 Op. 590. 3. By section 7 of the act of March 2, 1867, chap. 170, provision is made for additional traveling allowances in favor of "such California and Nevada volunteers as were discharged in New Mexico, Arizona, or Utah, and at points distant from the place or places of enlistment"; and all who fall within that description are authorized to be paid, under the regulations of the Secretary of War, according to the distance traveled by each in returning from the place of discharge to the place of enlistment. Opinion of May 8, 1872, 14 Op. 40

4. The proviso in the appropriation act of June 16, 1874, chap. 285, declaring "that only actual traveling expenses shall be allowed to any person holding employment or appointment under the United States," applies to United States marshals, and, therefore, supersedes the provision in the fee-bill (Rev. Stat., sec. 829) allowing mileage to those officers. Opinion of Aug. 29, 1874, 14 Op. 681.

5. The provision in the act of June 16, 1874, chap. 285, as to the allowance of "actual traveling expenses," supersedes the provision in the fee-bill (Rev. Stat., sec. 829) allowing mileage to marshals on account of each necessary guard employed in transporting prisoners, &c., the same as on any other account whatever. Opinion of Sept. 30, 1874, 11 Op. 684.

public business (their transportation not being furnished by the Quartermaster's Department, or on a conveyance belonging to or chartered by the United States) were entitled to mileage at the rate of 10 cents per mile for sea travel as well as for land travel. Opinion of July 6, 1875, 15 Op. 496.

8. The rule which forbids mileage for sea travel to naval officers under the second section of the act of March 3, 1835, chap. 27, does not apply to or govern questions of mileage to Army officers under the act of 1870. Ibid.

9. Special agents employed by the Postmaster-General under section 4017, Rev. Stat., are entitled to an allowance for traveling and incidental expenses, within the limit there prescribed, only while they are actually employed in the service. Opinion of March 10, 1876, 15 Op. 75.

10. The provision in section 4017 Rev. Stat., for traveling and incidental expenses of special agents of the Post-Office Department, while it limits the allowance to each agent "to a sum not exceeding $5 a day," does not entitle the agent to have that amount allowed him where he has agreed with the Department to take a less sum per day for such expenses. Opinion of March 20, 1876, 15 Op. 82.

11. Under the act of February 22, 1875, chap. 95, only one charge for mileage is allowable for the service of several writs in hand at the same time, requiring the marshal to travel to the same place or in the same direction. (Contra, see opinion of Oct. 10, 1878, 16 Op. 165.) Opinion of May 29, 1876, 15 Op. 108.

12. Under the act of June 30, 1876, chap. 159, mileage is allowable to officers of the Navy only when traveling on public business within the United States. For travel without the United States their actual expenses alone can be allowed: Held, accordingly, that where a naval officer was ordered home from HongKong, and furnished with a through ticket (such ticket being assumed to have covered his actual expenses) he is not entitled to the difference between the cost of that ticket and the mileage established by that act. Opinion of June 13, 1877, 15 Op. 309.

II. With Indian Tribes.
III. With Foreign Nations.
I. Generally.

1. A treaty, constitutionally concluded and

TARY OF THE TREASURY.

1. By the Treasury regulations, transfer of public stocks held by foreign decedents may be made on satisfactory proof that the party claiming the right in such stocks is entitled as devisee, distributee, or otherwise according to law. Opinion of May 31, 1855, 7 Op. 240.

2. The doctrine of the right of neutrals to purchase the ships of belligerents (see opinion of Aug. 7, 1854, 6 Op. 638) reaffirmed. The Secretary of the Treasury may regulate in such case the authentication of the bill of sale, which is the highest evidence of the change of property. Opinion of Oct. 8, 1855, 7 Op. 538.

TREASURY NOTES.

1. Under the act of March 3, 1843, chap. 81, authorizing the reissue of Treasury notes, and for other purposes, whenever outstanding Treasury notes, issued in pursuance of the act of August 31, 1842, chap. 289, or any previous act of Congress, shall be redeemed before July 1, 1844, other notes may be issued in the place of those redeemed; but the notes outstanding of an earlier issue than 1840 are governed by the law then in force, except so far as the act of 1843 authorizes their reissue if redeemed. Opinion of April 3, 1843, 4 Op. 172.

the States may be inconsistent therewith. Opinion of Feb. 16, 1854, 6 Op. 291.

2. Semble that a treaty, assuming it to be made conformably to the Constitution in substance and form, has the effect, under the general doctrine that "leges posteriores priores contrarias abrogant," of repealing all pre-existing Federal law in conflict with it, whether unwritten, as law of nations or admiralty, or written, as legislative statutes. Ibid.

3. At any rate, if the effect of a treaty on existing statutes admit of doubt, Congress never has failed to pass the acts requisite to give effect to any treaty not containing provisions incompatible with the Constitution. Ibid.

4. Such provisions of the proposed convention between the United States and Great Britain, on the subject of copyright, as are inconsistent with existing provisions of acts of Congress, either abrogate the latter, or, if not, on the ratification of the convention they will probably be repealed by Congress. Ibid.

5. Not to observe a treaty is to violate a deliberate and express engagement. To violate such engagements of a treaty with any foreign power affords, of course, good cause of war. When Congress takes upon itself to disregard the provisions of any foreign treaty it, of course, infringes the same, in the exercise of sovereign right, and voluntarily accepts the casus belli,

as when, in 1798 (see act of July 7, 1798, chap. 67), it annulled the treaties between the United States and France. Opinion of Aug. 12, 1854, 6 Op. 658.

6. There is distinction, undoubtedly, between a treaty with a foreign power and a treaty with Indians who are subjects of the United States. Examples may be cited of acts of Congress which operate so as to modify or amend treaties with Indians. As their sovereign and their guardian we have occasionally assumed to do this, acting in their interest and our own, and not, in such cases, violating engagements with them, but seeking to give a more beneficial effect to such engagements. For though they be weak and we strong, they subjects and we masters, yet they are not the less entitled to the exercise towards them of the most scrupulous good faith on the part of the United States. Ibid.

7. Under the Constitution, treaties as well as statutes are the law of the land; both the one and the other, when not inconsistent with the Constitution, standing upon the same level and being of equal force and validity; and, as in the case of all laws emanating from an equal authority, the earlier in date yields to the later. Opinion of Dec. 15, 1870, 13 Op. 354.

II. With Indian Tribes.

8. The twelfth section of the act of May 19, 1796, chap. 30, prohibited every person, not employed under the authority of the United States, from negotiating, directly or indirectly, a treaty with any Indian tribe, &c.: Held that the expression "under the authority of the United States" meant the constitutional authority of the United States, which it was considered could not be bestowed on any person but by the President, with the advice of the Senate. Opinion of May 26, 1796, 1 Op. 65.

9. The Seneca Indians must be protected in the enjoyment of exclusive possession of their lands as defined and bounded in the treaty of Canandaigua, until they have voluntarily relinquished it. Opinion of April 26, 1821, 1 Op. 465.

11. By the first treaty between the United States and the Cherokee Indians (concluded at Hopewell, November 28, 1785), the lands they Occupied were allotted to them for huntinggrounds, without conferring any permanent interest in the soil; and the fee remained in the State within whose jurisdictional limits the land was. Opinion of March 10, 1830, 2 Op. 322.

12. All the rights which the United States acquired under the treaties of 1817 and 1828 with the Cherokees inured to the benefit of the State of Georgia; for the United States were bound by the articles of cession between the United States and Georgia, of April, 1802, to extinguish the Indian title for "the use of Georgia." Ibid.

13. The fourteenth article of the treaty of 1830 with the Choctaws provides for those who desire to remain and become citizens of the United States, and their title is made to depend upon a residence of five years on the land with the intention of becoming citizens. Opinion of Sept. 9, 1831, 2 Op. 462.

14. The nineteenth article of said treaty provides absolutely for those who may not desire to remain and become citizens of the United States. Ibid.

15. The President has the power to approve the sale of any of the reserves under the supplementary articles to the Choctaw treaty of 1830, although the same is derived only by construing both instruments together as forming but one treaty. Opinion of Nov. 1, 1831, 2 Op. 465.

16. Technical rules of construction ought never to be applied to such treaties, but they should be construed liberally, according to their spirit, and so as to give the Indians all the advantages and facilities in their removal which appear to have been contemplated. Ibid.

17. The sale may be approved either before or after the survey, at the discretion of the President, who also has power to accept a relinquishment of title from any chief and to pay 50 cents per acre. Ibid.

18. As the treaty of 1826 with the Miamies contained an agreement on the part of the United States to grant to certain persons each a quarter section of land out of the territory ceded

parcels than those defined can be substituted

for them; for the President must execute the treaty according to its stipulations. Opinion of May 13, 1833, 2 Op. 563.

19. The land which was ceded to the United States by the Creek Indians by the treaty of March 24, 1832, wherein certain rights of selection were reserved to ninety of the principal chiefs and to heads of families, but being unsurveyed no selections have yet been made

said act, for the reason that the United States could only grant subject to the Indian right of occupancy. The contingency was provided for in the authority given for the granting of equivalent contiguous lands where section 16 was disposed of. There was no such proviso, however, in the offer of lands to Mississippi. Opinion of March 31, 1836, 3 Op. 56.

26. Under the second clause of the supple

20. The three Pottowatomie treaties of 1832 may be considered as forming one transaction, and, except where special provision is otherwise made, the lands agreed by any one of them to be granted by the United States to individuals may be located within the limits of the cession made by any one of the three, provided the party entitled to the grant assents thereto, and the President so directs. Opinion of Jan. 26, 1836, 3 Op. 33.

21. A widow keeping house, and having children or other persons with her, is the head of a family within the meaning of the fifth article of the treaty with the Chickasaws of 24th of May, 1834. If her children, or other persons residing with her, however, are provided for in the sixth or eighth articles, they cannot be included in the family enumeration. Opinion of Feb. 5, 1836, 3 Op. 34.

22. Widows keeping house without children or other persons residing with them are, if they own slaves, entitled to the section or half | section given by the fifth article, according to the number of their slaves. Ibid.

23. As many surviving Indian wives as were heads of families at the making of the Chickasaw treaty of 1834 (though wives of the same Indian) are entitled to the reservations made in the fifth article thereof. Opinion of Feb. 27, 1836, 3 Op. 41.

24. The reservees named in the supplement to the Choctaw treaty of September 27, 1830, may, with the approbation of the President, sell and convey their reserves. March 18, 1836, 3 Op. 48.

Opinion of

25. The reservations under the Choctaw treaty of 1830 may be located on the sections granted in the act of March 2, 1819, chap. 47, to Alabama for the use of schools, notwithstanding

treaty of Dancing Rabbit Creek, Allen Yates and wife are each entitled to two sections of land. Opinion of May 3, 1836, 3 Op. 106.

27. In the event of the death of reservees under the Choctaw treaty of 1830 before the expiration of five years' residence upon the land, required as a condition precedent to a grant and fee-simple, the interest is not defeated, but goes to those persons who, by the State laws, succeed to the inheritable interest of individual Indians. Opinion of May 3, 1836, 3 Op. 107.

28. Where the grant of a reservation is the essence of the treaty provision (as in the Choctaw treaty of 1830) the direction as to the manner in which the same shall be located ought not to be so construed as to defeat the grant. Opinion of May 9, 1836, 3 Op. 113.

29. Locations of sections, or parts of sections, should be made by taking whole, half, or quarter sections, as the case may be, without breaking up the legal divisions or disturbing sectional lines. In the case of Wall, under the supplementary articles of September 23, 1830, to the treaty of Dancing Rabbit Creek: Held, therefore, that the reservee is entitled to the half section on which his improvement is located, and the whole of that chosen for the balance. Opinion of May 10, 1836, 3 Op. 114.

30. In case an investment of funds arising from the sale of land, as provided in the eleventh article of the Chickasaw treaty of 1834, cannot be made in stocks having twenty years to run, it will be proper to invest such funds in stocks redeemable at a later day. Opinion of Jan. 30, 1837, 3 Op. 170.

31. Indian reservees under a treaty have a right paramount and superior to any grant of sections to States. Until their title shall be fully extinguished the grants of Congress cannot operate. Opinion of April 15, 1837, 3 Op. 205.

32. The stipulation contained in the treaty

of March, 1836, with the Ottawa and Chippewa Indians, for the right of hunting on the land ceded, and the other usual privileges of occupancy, until the land should be required for settlement, reserved its use for all the purposes of Indian occupancy as the same then existed. Opinion of April 20, 1837, 3 Op. 206.

33. A general approval indorsed on an Indian's petition for authority to alienate his reserve under the treaty with the Ottawas, &c., of the 29th August, 1821, is a valid consent; such having in 1822 been the mode adopted by the President for the exercise of his supervision.

Opinion of April 22, 1837, 3 Op. 209. 34. The reservees under the Creek treaty of 1814, and the act of March 3, 1817, chap. 88, have not power to lease their lands; the renting for a term of years and removal from the State may be regarded as an abandonment of their reservations. Opinion of May 23, 1837, 3 Op. 230.

35. On their abandonment the title becomes immediately vested in the United States, by operation of law, and is to be then treated as if then for the first time acquired by the treaty. Ibid.

36. The moneys received from the sale of reservations located for Creek orphans, under the treaty with the Creeks of March 24, 1832, were properly brought into the Treasury, and may be drawn out for investment or payment whenever the President shall direct. Opinion of June 2, 1837, 3 Op. 238.

article for improvements on the same reservations. The balance of the fund of $600,000, after defraying from it the expenses of removal, which is the first charge upon it, was that designated by the treaty for the satisfaction of the various claims provided for therein; if sufficient, to be ratably distributed and the balance to be charged to the general fund of $5,000,000. There is no occasion for dividing the $600,000, as the several agreements concerning compensation and spoliations are to be considered as one treaty. Opinion of Feb. 3, 1838, 3 Op. 304.

41. Under the treaties of 1817 and 1819 with the Cherokees the reservees therein could not properly locate their lands outside the limits of the cessions respectively; but as some of the reservations of 1817 were located within the lands ceded in 1819, and were included in the unceded lands under the latter treaty, these cases are to stand on the same grounds as other reservations under the treaty of 1817, and equally entitled, under the treaty of 1835–’6, to compensation with those who located within the cession of 1817. Opinion of May 11, 1838, 3 Op. 327.

42. But no provision has been made for those whose reservations under treaties of 1817 and 1819 were located within the cessions of 1835-6; and as such reservations are not within the thirteenth article of the treaty of 1835-'6, they were unauthorized, and are not to be paid for as improved lands; but the holders are only entitled to pay for their improvements. Ibid.

43. Reservations claimed under the treaties of 1817 and 1819 not being ceded by the first

38. In respect to the third class there is yet doubt; yet the Attorney-General, on the whole, concludes that the reservees of that class are also entitled, individually, to compensation in money. Ibid.

39. The compensation to the first and second classes must be paid from the $600,000 set apart in the supplementary articles. Ibid.

40. The persons entitled to pecuniary compensation for reservations under the thirteenth article of the treaty of December, 1835, with the Cherokees, are not entitled under the ninth

the words nor intention of the ninth article of the latter; hence the reservees who may be entitled to compensation under the thirteenth article of the last-mentioned treaty cannot claim pay under the ninth article thereof for improvements on the same reservations. Ibid. 44. But those who were to receive grants for their reservations are entitled to pay for the soil and their improvements thereon. Ibid.

45. The children of the reservees, under the eighth article of the treaty of 1817, were en'titled to reservations in fee simple. Ibid.

46. The residence of heads of Choctaw families who in due time signified to the agent their intention to remain and become citizens