Article IX of the Treaty of Ghent, which is the basis for the contention that the United States has failed to perform its treaty obligation to restore such rights or possessions.1

The alleged violation by the United States of the provisions of a treaty, made between it and Great Britain, constitutes a proper basis for an international claim. The question, which is submitted to the Arbitral Tribunal, is, therefore, whether the United States has violated Article IX of the Treaty of Ghent; and the liability or non-liability of the United States depends upon the decision of this question.

The Bar of the Claims Convention of 1853.

Article I of the terms of submission annexed to the Special Agreement of August 18, 1910, provides as follows:

"In case of any claim being put forward by one party which is alleged by the other party to be barred by treaty, the arbitral tribunal shall first deal with and decide the question whether the claim is so barred, and in the event of a decision that the claim is so barred, the claim shall be disallowed."

The United States, in compliance with the terms of this article, submits, as a primary defense to the claim entitled "Cayuga Indians," that the claim is barred by the provisions of the Claims Convention between the United States and Great Britain signed at London on February 8, 1853, the ratifications of which were exchanged July 26, 1853.

In article I of the Convention the High Contracting Parties agreed "that all claims on the part of corporations, companies, or private individuals, citizens of the United States, upon the Government of Her Britannic Majesty, and all claims on the part of corporations, companies, or private individuals, subjects of Her Britannic Majesty, upon the Government of the United States, which may have been presented to either Government for its interposition with the other since the signature of the treaty of peace and friendship concluded between the United States of America

and Great Britain, at Ghent, on the 24th of December, 1814, and which yet remain unsettled * * shall be referred to two

Commissioners," etc.2

*

Article II of the Convention provides: "It is agreed that no claim arising out of any transaction of a date prior to the 24th of December, 1814, shall be admissible under the convention."2

In article V of the Convention the High Contracting Parties engaged "to consider the result of the proceedings of this commission as a full, perfect and final settlement of every claim upon either Government arising out of any transaction of a date prior to the exchange of the ratifications of the present convention;" and they further engaged "that every such claim, whether or not the same may have been presented to the notice of, made, preferred, or laid before the said commission, shall, from and after the conclusion of the proceedings of the said commission be considered and treated as finally settled, barred, and thenceforth inadmissible.” The Commission held its last meeting and rendered its final awards on January 15, 1855.3

The British claims, over which this Commission was given jurisdiction, were limited to those which met the following requirements:

(1) They must be made on behalf of British subjects.

(2) They must have arisen out of transactions of a date not prior to December 24, 1814, nor subsequent to July 26, 1853. (3) They must have been presented to the Government of Great Britain for its interposition with the Government of the United States, prior to July 26, 1853.

If claims fulfilling these requirements were not presented to the Commission for arbitration, they came under the bar of the provisions of article V of the Convention and were thereby to "be considered and treated as finally settled, barred and thenceforth inadmissible."

The United States submits that the claim, entitled " "Cayuga Indians," belongs to the class of claims, which could properly have been submitted to arbitration by the Government of Great Britain under the terms of the Convention of 1853, since the

Appendix, Vol. III, pp. 959-964. Italics in this and subsequent quotations are not found in the originals unless so stated.

following analysis shows that it met fully the three jurisdictional requirements of that Convention.

First. The claim is a claim on behalf of British subjects, namely, the Indians of Cayuga blood or their posterity domiciled within British territory. Persons of Indian descent domiciled in Canada must be subjects of Great Britain and entitled to the protection and diplomatic interposition of the British Government in their behalf. Upon no other ground would His Majesty's Government be justified in presenting this claim to the Government of the United States or requesting its arbitration; and upon no ground other than the British nationality of the persons, in whose behalf the claim is now presented, would the United States have admitted the claim to the schedule of claims annexed to the Special Agreement of August 18, 1910.

Second. This claim, if any exists, arose out of the covenant on the part of the United States, set forth in Article IX of the Treaty of Ghent, to restore forthwith to certain tribes and nations of Indians the possessions, rights and privileges which they enjoyed or to which they were entitled in the year 1811. The signing of this treaty occurred on December 24, 1814, and the alleged obligation of the United States towards the Indians, upon whose behalf this claim is now advanced, arose immediately upon the treaty's ratification, to restore forthwith to those Indians their alleged rights in the annuity payable under the Agreement of 1795. This act of restoration could have been fully performed by the United States in 1815, or in any year between 1815 and 1853, once and for all time; the moment the right of the Indians to participate in this annuity had been restored, the obligation of the United States under Article IX would have ceased; and any difficulties, which these Indians might subsequently have experienced in maintaining any rights in this annuity, would be matters with which the United States would have had no concern, since, by Article IX, the United States agreed to bring about an immediate restoration of rights, and did not guarantee the perpetual enjoyment of such rights. If, therefore, these Indians have been deprived of any rights, their claim, as against the United States, matured over thirty years before 1853, and was not of a date prior to December 24, 1814. Hence, so far as its chronology is concerned, this was a claim which could properly have been submitted to the Commission constituted by the Convention

1

Third. The claim was presented to the Government of His late Britannic Majesty, George III, for interposition with the Government of the United States one year after the signing of the Treaty of Ghent, which is the transaction out of which this claim against the United States is alleged to have arisen. In December, 1815, one Captain John Norton, who was recognized as the duly authorized representative or agent of the Five Nations in Canada, presented to His Britannic Majesty's Government a letter and memorial in which, among other things, he prayed that the claim of the Cayugas and Onondagas to the payments of the moneys due to them from the United States for their lands under certain agreements of cession, which payments had been withheld from them since two years before the commencement of the War of 1812, be favorably considered and acted upon by His Britannic Majesty's Government. The letter of Captain Norton, enclosing this memorial, was addressed to Henry Goulbourn, Esq., Under-Secretary of State of His Britannic Majesty's Government and one of the Commissioners who acted for that Government in negotiating the Treaty of Ghent, and was laid by Mr. Goulbourn before Lord Bathurst, the Colonial Secretary.^ Although this claim was thus formally presented by a duly authorized agent of the Canadian Cayugas to His Britannic Majesty's Government for interposition with the United States, and came before high officials of that Government, who had an intimate knowledge of the obligations assumed by the United States under the Treaty of Ghent, no diplomatic interposition was made by His Britannic Majesty's Government with the United States at that time, nor was this claim referred to the Commissioners appointed under the Convention of 1853.

The United States, in view of the nationality and date of origin of the claim and of its formal presentation to the Government of Great Britain for interposition with the United States prior to July 26, 1853, submits that this claim is within the class of claims which are to be "considered and treated as finally settled, barred and thenceforth inadmissible" pursuant to the provisions of article V of the Claims Convention of 1853.

The United States, therefore, asks that the claim entitled "Cayuga Indians" be disallowed.

Procedure Under the Terms of Submission.

A narrow interpretation of article I of the terms of submission, annexed to the Special Agreement of August 18, 1910, might authorize the United States to rest in this answer upon the defense of the bar of the Convention of 1853, and to reserve the interposition of its further defenses until after a decision by the Arbitral Tribunal as to the effect of the bar of that Convention.

The United States believes, however, that article I does not intend such a course of procedure, and it has, therefore, deemed it advisable and proper, in order to avoid possible delay and the raising of technical questions of procedure, to present its entire case in this answer, and to set forth, after interposing the bar of the Convention of 1853, the other defenses upon which it relies.

The United States desires it to be understood, however, that the sole reason for the presentation of its entire case at this time is its belief that such a course is the practice contemplated by article I of the terms of submission.

Outline of Defenses.

The United States submits the following propositions, upon which it will chiefly rely in answer to the allegations and conclusions contained in the memorial of His Britannic Majesty's Government, and asserts that these propositions are fully established by the facts of the case and supported by the principles of law and equity applicable thereto.

I. The United States, by Article IX of the Treaty between the United States and Great Britain, signed at Ghent on the 24th day of December, 1814, obligated itself to restore to such tribes and nations of Indians as had their domicile within its borders and were subject to its sovereignty, and with which it was then at war, the possessions, rights and privileges which such tribes or nations enjoyed or to which they were entitled in the year 1811, provided that such tribes or nations first agreed to desist from all hostilities against the United States, its citizens and subjects, and did actually so desist; and His Britannic Majesty obligated himself to restore to such tribes and nations of Indians as had their domicile within his borders and were subject to his sovereignty, and with which he was then at war, the possessions, rights