United States territories, yet "on their visits to the King's posts, I shall expect that they shall be treated with the usual hospitality, and, assured that within our Lines, they shall meet every possible encouragement in their usual Traffic. Presents will be distributed to such as visit the posts, at the discretion of the Senior Officer of the Indian Department." In September, 1816, however, it appears that under orders from the Colonial Office, instructions were issued prohibiting the giving of presents to Indians residing within the limits of the United States. 115 The discontinuance of these presents apparently created serious difficulties for the British Indian agents in Upper Canada in their dealings with the Northwest Indians, who seem to have felt that His Majesty's Government had broken their promises to them. In February, 1819, H. McKay, the Superintendent of Indian Affairs for the western district of Canada, in a report to Earl Bathurst, calls attention to the situation:116 * * * I am impelled by urgent circumstances, before I quit the Kingdom to address Your Lordship on the present state of the relations between the Indian Department of Canada, and the Native Indians annually resorting to the Station under my charge. "The Natives to whom I allude are the Deputations from the various tribes of Western Warriors, who during the late War with the United States of America were induced to join His Majesty's Arms and whose Lands are situated within the Territory of the United States. During the War in which I was frequently employed to lead these Indians it was also on several occasions my duty to communicate to them the different Messages and Speeches addressed to them by the Government of Canada-And since the Peace the Office in which I have served has made me the organ of receiving the Speeches and representations which they have been desirous to address to His Majesty's Government-I have thus had ample opportunities of observing the conduct & learning the sentiments of these Indians. I have had long experience of their character and from the serious nature of the declarations made by them at the councils held with me during the last summer-I am apprehensive that unless some satisfactory 115 Appendix, Vol. II, pp. 754-755. communication is made to them in the course of the present Year Consequences of the most disastrous nature to the garrison of Drummond's Island & to the lives of His Majesty's Subjects in that part of the country may result from the disappointment which they will feel if they should still remain without any Answer to the Various representations which they have made for the last four years. "My serious apprehensions of such disastrous consequences and the promises exacted from myself by the Indians which I was induced to give as the only means of averting immediate mischief from the disposition which they manifested at the Councils in question, are the causes which induce me as a matter of duty to address this letter to Your Lordship and I trust the circumstances of the case will plead my apology for the intrusion. * ** * * * some measures of conciliation must be speedily adopted to prevent the evils which will result from a termination of the friendly relations between us & them." The action taken by His Majesty's Government in fulfilling the obligations imposed upon them by Article IX shows that that Article was reciprocal only in name, as each of the High Contracting Parties understood that it was obligated to make peace with, and restore rights, privileges, and possessions to, only such Indian nations as were domiciled within its territories and had been hostile to it. As a result, His Majesty's Government fulfilled their obligations by addressing speeches to their Indian allies domiciled within the United States, requesting them to remain at peace. A diligent search has failed to disclose any treaty entered into by His Majesty's Government under the terms of Article IX with any Indian nation, and in particular with any Indian nation domiciled in the United States (although it cannot be disputed that many nations of Indians domiciled within the United States had been hostile to His Majesty's Government at the time of the ratification of the Treaty of Ghent), or any treaty entered into by the United States with any Indian nation, domiciled in Canada. The correspondence between the Canadian officials and the British Foreign Office during the War of 1812 (read in the light of the relations theretofore existing between the British Colonial Government and the Indian nations), the negotiations of the the insertion of Article IX in the Treaty of Ghent), and the official action taken respectively by the United States and by Great Britain in fulfilling the obligations imposed upon them by Article IX, clearly define and limit the meaning of the words "tribes or nations of Indians" as used in that Article. The words "tribes or nations of Indians" as used in that part of Article IX which contains the agreement of the United States, include only tribes or nations of Indians, which, domiciled within the dominions of the United States and subject to its sovereignty, had acted in hostility to it during the War of 1812 and remained hostile to it at the time of the ratification of the Treaty of Ghent; and the words "tribes or nations of Indians," as used in that part of Article IX which contains the agreement of His Britannic Majesty, include only tribes or nations of Indians, which, domiciled within his dominions and subject to his sovereignty, had acted in hostility to him during the War of 1812 and remained hostile to him at the time of the ratification of the Treaty of Ghent. It is evident that the Indians of Cayuga blood, who were domiciled in Canada in 1811, were not a tribe or nation of Indians within the meaning of Article IX, since (I) They did not constitute the Cayuga Nation, but were merely individuals who at one time may have been members of that Nation. (II) They were not domiciled within the dominions of the United States, but were domiciled within the dominions of His Britannic Majesty. (III) They were not under the sovereignty of nor did they owe allegiance to the United States, but were under the sovereignty of and owed allegiance to His Britannic Majesty. Conditions Precedent Imposed by Article IX. While the fact that these Indians of Cayuga blood, in behalf of whose descendants His Majesty's Government now present this claim, are not a tribe or nation of Indians within the meaning of Article IX, is a sufficient ground for dismissing and finally barring this claim, the United States directs the attention of the Arbitral Tribunal to the further fact that there is a complete failure of proof on the part of His Majesty's Government to show that United States, its citizens and subjects, and actually did so desist --both of which affirmative acts on the part of an Indian tribe or nation were conditions precedent, which must be fulfilled before it could claim any right to benefit under Article IX. The only evi dence submitted upon this point shows that these Indians, after the ratification of the Treaty of Ghent was known to them, laid plans for engaging in further hostilities against the United States, which they would undoubtedly have carried out, had not His Majesty's Government learned of such plans in time to frustrate them.118 This failure of proof as to any agreement by these Indians to desist from hostilities and as to their actually so desisting is a ground, sufficient in itself, for dismissing and finally barring this claim. Meaning of Phrase "Possessions, Rights and Privileges" in Article IX. The third question to be considered is whether the Indians of Cayuga blood, domiciled in Canada, enjoyed or were entitled in 1811 to any possessions, rights and privileges which the United States would have been under obligation to restore to them, if they had constituted a tribe or nation of Indians within the meaning of Article IX, and, further, if they had agreed to desist from all hostilities against the United States, its citizens and subjects, and had actually so desisted. The main defenses, upon which the United States relies, in controverting the contentions of His Majesty's Government that those Indians, in behalf of whose descendants this claim is now advanced, possessed, or were entitled to any "possessions, rights and privileges" in the year 1811, which the United States was or is bound to restore, are set forth in the Outline of Defenses of the United States, under numbers V to XIII, inclusive. 118a A proper consideration of these defenses requires a discussion of certain institutions and customs of the Iroquois, and a review of the relations of the State of New York with the Cayugas and other allied tribes of the Six Nations. 117Appendix, Vol. II, p. 584. 118 Appendix, Vol. III, pp. 964-974, 1038, 1146. The Iroquois Confederacy or League consisted originally of five Indian nations, which occupied the territory (now the central part of New York) from the Hudson River to Lake Erie in the following order from east to west, the Mohawk, Oneida, Onondaga, Cayuga and Seneca.119 About 1715 the Tuscarora Nation, of the same racial stock, migrated from the Carolinas, and was admitted to a qualified membership in the League, 120 which was thereafter spoken of as the "Five Nations" and the "Six Nations." The Five Nations were divided into eight clans, each with its symbol or totem, of which at least three were common to all the nations.121 Sachems were "raised up" from the respective clans, within which such offices were hereditary, and were the advisers of the Confederacy and their respective nations in all civil matters.122 There were fifty sachemships in the League, a fixed number of which belonged to each nation. Each sachemship had a title which was assumed as his name by each successive holder of the office.123 Vacancies in the sachemships were filled from the clans within the nation, to which such sachemship belonged, by appointment of the chief matrons of the clan,124 these appointments being subject to confirmation at a general council. 125 In addition to the sachems, the League possessed two other classes of leaders, war chiefs 126 and, later, ordinary chiefs. 127 The war chiefs were the leaders in actual fighting, but were nominally subordinate in authority to the sachems in civil affairs. After the appearance of Europeans in the neighborhood of the League, additional chiefs were chosen because of their ability.128 To this last class of leaders belonged the most influential men of the Confederacy, such as the Seneca chief Red Jacket, who was called by Morgan the most gifted of the Iroquois, the Mohawk chief Brant, and the Cayuga chiefs Steel Trap and Fish Carrier.129 National action was determined, not by any representatives of the nation, but by a council of the entire nation, in which the |