XXIII.

RELATIVE EFFECTS OF TREATIES MADE BY THE UNITED STATES AND STATE LAWS.

Cherokee Nation vs. Georgia, U. S. Sup. Ct. 1831, 5 Peters, 1, MARSHALL, Ch. J.

Clinton Bridge, The, U. S. Cir. Ct. Iowa, 1867, 1 Woolworth, 150, MILLER, J.

Geofroy vs. Riggs, U. S. Sup. Ct. 1890, 133 U. S. 258, FIELD, J.

Haver vs. Yaker, U. S. Sup. Ct. 1869, 9 Wallace, 32, DAvis, J. Holmes vs. Jennison, U. S. Sup. 1840, 14 Peters, 540, THOMPSON, J. Hurltado vs. California, U. S. Sup. 1884, 143 U. S. 570, BLATCHFORD, J. Inglis vs. Sailors' Snug Harbor, U. S. Sup. Ct. 1830, 3 Peters, 99, THOMPSON, J.

Jecker vs. Magee, same as Haver vs. Yaker, supra.

Martin vs. Waddell, U. S. Sup. Ct. 1842, 16 Peters, 367, TANEY, Ch. J. Martin vs. Hunter, U. S. Sup. Ct. 1816, 1 Wheaton, 304, STORY, J. New York vs. Miln (Passenger Cases), U. S. Sup. Ct. 1837, 11 Peters, 102, BARBOUR, J.

Shanks vs. Dupont, U. S. Sup. Ct. 1830, 3 Peters, 242, STORY, J. United States vs. Forty-three Gallons, etc., U. S. Sup. Ct. 1876, 93 U. S. 188, DAVIS, J.; 1883, 108 U. S. 491, FIELD, J.

Ware vs. Hylton, U. S. Sup. Ct. 1796, 3 Dallas, 199, CHASE, WILSON, PATERSON, Cushing, Iredell, JJ.

Yick Wo vs. Hopkins. U. S. Sup. Ct. 1886, 118 U. S. 356, MATTHEWS, J.

XXIV.

WHEN TREATIES TAKE EFFECT AS TO THE CONTRACTING GOVERNMENTS AND AS TO THE RIGHTS OF INDIVIDUALS AFFECTED THEREBY,

Chouteau vs. Eckhart, U. S. Sup. Ct. 1844, 2 Howard, 344, CATRON, J. Davis vs. Police Jury, etc., U. S. Sup. Ct. 1850, 9 Howard, 280, WAYNE, J.

Doe (Clark) vs. Braden, U. S. Sup. Ct. 1853, 16 Howard, 635, TANEY, Ch. J.

Haver vs. Yaker, U. S. Sup. Ct. 1869, 9 Wallace, 32, DAVIS, J.

Head Money Cases, U. S. Sup. Ct. 1884, 112 U. S. 580, MILLER, J. Inglis vs. Sailors' Snug Harbor, U. S. Sup. Ct. 1830, 3 Peters, 99, THOMPSON, J.

Jecker vs. Magee, same as Haver vs. Yaker, supra.

Ortiz, Ex parte, U. S. Cir. Ct. Minn. 1900, 100 Fed. Rep. 955, LOCHRAN, J.

Taylor vs. Morton, U. S. Cir. Ct. Mass. 1855, 2 Curtis, 454, CURTIS, J. (aff'd U. S. Sup. Ct. 1862, 2 Black. 481, CLIFFORD, J.).

United States vs. Reynes, U. S. Sup. Ct. 1850, 9 Howard, 127, DANIEL, J.

Whitney vs. Robertson, U. S. Sup. Ct. 1888, 124 U. S. 190, FIELD, J.

36

XXV.

STATUS OF INDIAN TRIBES AND THE CONSTRUCTION OF INDIAN TREATIES; THE RELATIVE EFFECT OF INDIAN TREATIES AND STATE AND FEDERAL LAWS.

Bates vs. Clark, U. S. Sup. Ct. 1877, 95 U. S. 204, MILLER, J.

Cherokee Nation vs. Georgia, U. S. Sup. Ct. 1831, 5 Peters, 1, MARSHALL, Ch. J.

Cherokee Tobacco, The, U. S. Sup. Ct. 1870, 11 Wallace, 616, SWAYNE, J. Crow Dog, Ex parte, U. S. Sup. Ct. 1883, 109 U. S. 556, MATTHEWS, J. Elk vs. Wilkins, U. S. Sup. Ct. 1884, 112 U. S. 94, GRAY, J.

Johnson vs. McIntosh, U. S. Sup. Ct. 1823, 8 Wheaton, 543, MARSHALL, Ch. J.

Kansas Indians, The, U. S. Sup. Ct. 1866, 5 Wallace, 737, Davis, J. Sah Quah's Case, U, S. Dist. Ct. Alaska, 1886, 31 Fed. Rep. 327, DawSON, J.

Taltan vs. Mayes, U. S. Sup. Ct. 1896, 163 U. S. 376, WHITE, J.

United States vs. Forty-three Gallons, etc., U. S. Sup. Ct. 1876, 93 U. S. 188, DAVIS, J., and 1883, 108 U. S. 491, FIELD, J.

United States vs. Kayama, U. S. Sup. Ct. 1886, 118 U. S. 375, MILLER, J.

United States vs. Osborne, U. S. Dist. Ct. Oregon, 1880, 6 Sawyer, 406, DEADY, J.

United States vs. Rogers, U. S. Sup. Ct. 1846, 4 Howard, 567, TANEY, Ch. J.

United States vs. Tobacco Factory, U. S. Cir. Ct. Arkansas, 1871, 1 Dillon, 264, CALDWELL, J.

Worcester vs. Georgia, U. S. Sup. Ct. 1832, 6 Peters, 515, MARSHALL, Ch. J.

SUPPLEMENT TO

INSULAR CASES APPENDIX.

DECISIONS Of December 2, 1901.

After the foregoing APPENDIX was completed and this volume was in press, the Supreme Court decided the two cases known as the Fourteen Diamond Rings (Pepke) Case, (see pages 467, et seq., of this APPENDIX, ante,) involving the status of the Philippine Islands as to tariff laws, and the Second Dooley Case, (see pages 501, et seq., of this APPENDIX, ante,) involving the right to collect duties in Porto Rico on merchandise from other ports of the United States. As it was too late to include those decisions in their proper places in the foregoing APPENDIX, they have been added as a supplement thereto, and they appear in full in the following pages.

THE FOURTEEN DIAMOND RINGS.

In error to the District Court of the United States for the Northern District of Illinois. No. 158. October term, 1901.

[Decided December 2, 1901.]

For appearances, abstract of record, briefs and arguments, see p. 467, ante, of this appendix.

Mr. Chief Justice FULLER delivered the opinion of the court as follows:

"Emil J. Pepke, a citizen of the United States and of the State of North Dakota, enlisted in the First Regiment of the North Dakota United States Volunteer Infantry, and was assigned for duty with his regiment in the island of Luzon, in the Philippine Islands, and continued in the military service of the United States until the regiment was ordered to return, and, on arriving at San Francisco, was discharged September 25, 1899.

"He brought with him from Luzon fourteen diamond rings, which he had there purchased, or acquired through a loan, subsequent to the ratification of the treaty of peace between the United States and Spain, February 6, 1899, and the proclamation thereof by the President of the United States, April 11, 1899.

"In May, 1900, in Chicago, these rings were seized by a customs officer as having been imported contrary to law, without entry, or declaration,

or payment of duties, and an information was filed to enforce the forfeiture thereof.

"To this Pepke filed a plea setting up the facts, and claiming that the rings were not subject to customs duties; the plea was held insufficient; forfeiture and sale were decreed; and this writ of error was prosecuted.

"The tariff act of July 24, 1897, (30 Stat. 151,) in regulation of commerce with foreign nations, levied duties upon all articles imported from foreign countries.'

"Were these rings, acquired by this soldier after the ratification of the treaty was proclaimed, when brought by him from Luzon to California, on his return with his regiment to be discharged, imported from a foreign country?

"This question has already been answered in the negative, in respect of Porto Rico in De Lima vs. Bidwell, 182 U. S. 1, and unless the cases can be distinguished, which we are of opinion they cannot be in this particular, that decision is controlling.

"The Philippines, like Porto Rico, became, by virtue of the treaty, ceded conquered territory or territory ceded by way of indemnity. The territory ceased to be situated as Castine was when occupied by the British forces in the war of 1812, or as Tampico was when occupied by the troops of the United States during the Mexican war, cases of temporary possession of territory by lawful and regular governments at war with the country of which the territory so possessed was part.' Thorington vs. Smith, 8 Wall. 10. The Philippines were not simply occupied but acquired, and having been granted and delivered to the United States, by their former master, were no longer under the sovereignty of any foreign nation.

"In Cross vs. Harrison, 16 How. 164, the question was whether goods imported from a foreign country into California after the cession were subject to our tariff laws, and this court held that they were.

“In De Lima vs. Bidwell the question was whether goods imported into New York from Porto Rico, after the cession, were subject to duties imposed by the act of 1897 on articles imported from foreign countries,' and this court held that they were not. That act regulated commerce with foreign nations, and Porto Rico had ceased to be within that category; nor could territory be foreign and domestic at the same time.

"Among other things it was there said: The theory that a country remains foreign with respect to the tariff laws until Congress has acted by embracing it within the customs union, presupposes that a country may be domestic for one purpose and foreign for another. It may undoubtedly become necessary for the adequate administration of a domestic territory to pass a special act providing the proper machinery and officers, as the President would have no authority, except under the war power, to administer it himself; but no act is necessary to make it domestic territory if once it has been ceded to the United States.

. . This theory also presupposes that territory may be held indefinitely by the United States; that it may be treated in every particular,

Supplement.

except for tariff purposes, as domestic territory; that laws may be enacted and enforced by officers of the United States sent there for that purpose; that insurrections may be suppressed, wars carried on, revenues collected, taxes imposed; in short, that everything may be done which a government can do within its own boundaries, and yet that the territory may still remain a foreign country. That this state of things may continue for years, for a century even, but that until Congress enacts otherwise, it still remains a foreign country. To hold that this can be done as matter of law we deem to be pure judicial legislation. We find no warrant for it in the Constitution or in the powers conferred upon this court. It is true the nonaction of Congress may occasion a temporary inconvenience; but it does not follow that courts of justice are authorized to remedy it by inverting the ordinary meaning of words.'

"No reason is perceived for any different ruling as to the Philippines. By the third article of the treaty Spain ceded to the United States 'the archipelago known as the Philippine Islands,' and the United States agreed to pay to Spain the sum of twenty million dollars within three months. The treaty was ratified; Congress appropriated the money; the ratification was proclaimed. The treaty-making power; the executive power; the legislative power, concurred in the completion of the trans

action.

The Philippines thereby ceased, in the language of the treaty, 'to be Spanish.' Ceasing to be Spanish, they ceased to be foreign country. They came under the complete and absolute sovereignty and dominion of the United States, and so became territory of the United States over which civil government could be established. The result was the same although there was no stipulation that the native inhabitants should be incorporated into the body politic, and none securing to them the right to choose their nationality. Their allegiance became due to the United States and they became entitled to its protection.

"But it is said that the case of the Philippines is to be distinguished from that of Porto Rico because on February 14, 1899, after the ratification of the treaty, the Senate resolved, as given in the margin,* that it was not intended to incorporate the inhabitants of the Philippines into citizenship of the United States, nor to permanently annex those islands. "We need not consider the force and effect of a resolution of this sort, if adopted by Congress, not like that of April 20, 1898, in respect of Cuba,

"Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That by the ratification of the treaty of peace with Spain it is not intended to incorporate the inhabitants of the Philippine Islands into citizenship of the United States, nor is it intended to permanently annex said islands as an integral part of the territory of the United States; but it is the intention of the United States to establish on said islands a government suitable to the wants and conditions of the inhabitants of said islands to prepare them for local self-government, and in due time to make such disposition of said islands as will best promote the interests of the United States and the inhabitants of said islands.' Cong. Rec. 55th Cong. 3d Sess. vol. 32, p. 1847."