supplied (as distinct from the transport of sick and wounded) is indirect or in any event too remote to let it come under the phraseology of the Experts' Plan as the Tribunal understands it.

6. CIVIL AND MILITARY PENSIONS (POLAND)

(a) As between the Reparation Commission and the German Government The Tribunal is asked to decide whether payments under the agreement of January 9, 1920, made between the German and the Polish Governments in pursuance of Article 92 of the Treaty of Versailles, in respect of civil and military pensions should come within the annuities. The Tribunal notes that in that agreement no payments are prescribed; the possibility is only contemplated therein that at a future date payments, at present unknown as regards their terms and conditions, may have to be made. No agreement between the two governments of a later date, and dealing with this matter, has been brought to the knowledge of the Tribunal. In these circumstances, the Tribunal cannot give a decision on the question here under consideration, because at present it has no object.

(b) As between the German Government and the Polish Government

The reasons stated under (a) also apply as between the German Government and The Polish Government.

Done at The Hague on March 24, 1926.

WALTER P. COOKE, President.
E. N. VAN KLEFFENS, Secretary.

AMERICAN AND BRITISH CLAIMS ARBITRATION TRIBUNAL

CAYUGA INDIAN CLAIMS

Award rendered at Washington, January 22, 1926

*

The Cayuga Nation had no international status. It existed as a legal entity only by New York law, and Great Britain cannot maintain a claim for it. When the tribe divided, as the result of the War of 1812 between Great Britain and the United States, its status was such only as Great Britain chose to recognize as to the Cayugas who moved to Canada, and what New York recognized as to the Cayugas who remained in New York. Legally, the Indians could do nothing except under the guardianship of some sovereign. Great Britain dealt with the Canadian Cayugas as individuals, and is entitled to maintain their claims as such.

The hard situation of the tribe after its division, and the dependent position of the individual Cayugas in Canada presents a situation so anomalous that recourse must be had to * Established in pursuance of the special agreement signed at Washington, August 18, 1910 (Supplement to this Journal, Vol. 5, pp. 257–267).

Arbitrators: Alfred Nerincx, Sir Charles Fitzpatrick, Roscoe Pound.

Agents and Senior Counsel: United States-Fred K. Nielsen; Great Britain—Sir Cecil J. B. Hurst.

Previous decisions of the Tribunal will be found printed in this JOURNAL, Vol. 7, pp. 875-890; Vol. 8, pp. 650-655; Vol. 15, pp. 292–304; Vol. 16, pp. 106–116, 301–333; Vol. 18, pp. 814-844; Vol. 19, pp. 193-219, 790-803; Vol. 20, pp. 377-399.

Headnote supplied by the Managing Editor.

general principles of justice and fair dealing in order to determine the rights of the individuals involved. Under the terms of the treaty of arbitration, which provides that decision shall be made in accordance with the principles of international law and equity, and after an examination of the provisions of arbitration treaties which shows a recognition that something more than strict law must be used in the grounds of decision of arbitral tribunals in certain cases, the tribunal concludes that, according to general and universally recognized principles of justice and the analogy of the way in which English and American courts, on proper occasions, look behind what in such cases they call "the corporate fiction," on the division of the Cayuga Nation the Cayuga Indians permanently settled in Canada became entitled to their proportionate share of the annuity covenanted to be paid to the Cayuga Nation by the State of New York in the treaty of 1795, and that such share ought to have been paid to them from 1810 to the present time.

The treaty of 1795 was a contract of the State of New York, and the United States is not liable merely on the basis of a failure of New York to perform a covenant to pay money. The liability of the United States is grounded upon Article IX of the Treaty of Ghent, in which the United States covenanted that the Indians should be restored to the position in which they were before the War of 1812. That liability did not accrue until the refusal of New York to recognize the claim had been brought to the attention of the authorities of the United States and that government did nothing to carry out the treaty provision. The earliest date at which the claim can be said to have accrued against the United States under international law is 1860, and for these reasons it is not barred by Article V of the Claims Convention of 1853.

There is no doubt that there has been laches on the part of Great Britain in presenting the claim to the United States; but on the general principles of justice on which it is held in the civil law that prescription does not run against those who are unable to act, on which in English-speaking countries persons under disability are excepted from the operation of statutes of limitation, and on which English and American courts of equity refuse to impute laches to persons under disability, the tribunal holds that dependent Indians, not free to act except through the appointed agencies of a sovereign which has a complete and exclusive protectorate over them, are not to lose their just claims through the laches of that sovereign. The State of New York has paid the whole amount of the annuity each year in reliance upon its authority to decide who constituted the Cayuga Nation, and an equity runs in its favor as to payments made before the claim of the Canadian Cayugas was presented to the legislature of that State in 1849. Interest is therefore denied on the share of the Canadian Cayugas on past instalments, and the payments from 1811 to 1849 will stand as made. A lump sum of $100,000 is awarded to provide an amount equal to a just share in the payments of the annuity from 1849, and a capital sum which, at five per cent interest, will yield half of the amount of the annuity for the future; the Government of the United States to be considered as having performed the covenant in Article IX of the Treaty of Ghent so far as specific performance may be achieved through a money award.

This is a claim of Great Britain, on behalf of the Cayuga Indians in Canada, against the United States by virtue of certain treaties between the State of New York and the Cayuga Nation in 1789, 1790, and 1795, and the treaty of 1814 between the United States and Great Britain, known as the Treaty of Ghent.

At the time of the American Revolution, the Cayugas, a tribe of the Six Nations or Iroquois, occupied that part of central New York lying about Cayuga Lake. During the Revolution, the Cayugas took the side of Great Britain and as a result their territory was invaded and laid waste by Continental troops. Thereupon the greater part of the tribe removed to Buffalo Creek, and after 1784 a considerable portion removed thence to the Grand River in Canada. By 1790 the majority of the tribe were probably in Canada. In 1789 the State of New York entered into a treaty with the Cayugas who remained at Cayuga Lake, recognized as the Cayuga Nation, whereby the latter ceded the lands formerly occupied by the tribe to New York and the latter covenanted to pay an annuity of $500 to the nation. In this treaty a reservation at Cayuga Lake was provided for. As there was

much dissatisfaction with this treaty on the part of the Indians, who asserted that they were not properly represented, it was confirmed by a subsequent treaty in 1790 and finally by one in 1795, executed by the principal chiefs and warriors both from Buffalo Creek and from the Grand River. By the terms of the latter treaty, in which, as we hold, the covenants of the prior treaties were merged, the State covenanted, among other things, with the "Cayuga Nation" to pay to the said "Cayuga Nation" eighteen hundred dollars a year forever thereafter, at Canandaigua in Ontario County, the money to be paid to "the Agent of Indian Affairs under the United States for the time being, residing within this state" and, if there was no such agent, then to a person to be appointed by the Governor. Such agent or person appointed by the Governor was to pay the money to the "Cayuga Nation," taking the receipt of the nation and also a receipt on the counterpart of the treaty, left in the possession of the Indians, according to a prescribed form. By this treaty the reservation provided for in the treaty of 1789 was sold to the State.

There are receipts upon the counterpart of the treaty of 1795 down to and including 1809, and these receipts and the receipt for 1810, retained by New York, show that the only persons who can be identified among those to whom the money was paid, and the only persons who can be shown to have held. prominent positions in the tribe, were then living in Canada. In 1811 an entire change appears. From that time a new set of names, of quite different character, appear on the receipts retained by New York. From that time there are no receipts upon the counterpart. Since that time, it is conceded, no part of the moneys paid under the treaty has come in any way to the Cayugas in Canada, but the whole has been paid to Cayugas in the United States, and since 1829 in accordance with treaties in which the Canadian Cayugas had no part or in accordance with legislation of New York. The claim is: (1) That the Cayugas in Canada, who assert that they have kept up their tribal organization and undoubtedly have included in their number the principal personages of the tribe according to its original organization, are the "Cayuga Nation," covenantees in the treaty of 1795, and that as such they, or Great Britain on their behalf, should receive the whole amount of the annuity from 1810 to the present. In this connection it is argued that the covenant could only be discharged by payment to those in possession of the counterpart of the treaty and indorsement of a receipt thereon, as in the treaty prescribed. (2) In the alternative, that the Canadian Cayugas, as a part of the posterity of the original nation, and numerically the greater part, have a proportion of the annuity for the future and a proportion of the payments since 1810, to be ascertained by reference to the relative numbers in the United States and in Canada for the time being.

As the occasion of the change that took place in and after 1811 was the division of the tribe at the time of the War of 1812, those in the United States and those in Canada taking the part of the United States and of Great

Britain respectively, Great Britain invokes Article IX of the Treaty of Ghent, by which the United States agreed to restore to the Indians with whom that government had been at war "all the possessions, rights, and privileges which they may have enjoyed or been entitled to" in 1811 before the war.

Great Britain can not maintain a claim as for the Cayuga Nation for the whole annuity since 1810 and for the future. In order to maintain such a claim, it would be necessary to establish the British nationality of the obligee at the date at which the claim arose. The settled doctrine on this point is well stated by Little, Commissioner, in Abbiatti's Case, 3 Moore, International Arbitrations, 2347-8. See also Mexican Claims, 2 id., 1353; Dimond's Case, 3 id., 2386-8. The obligee was the "Cayuga Nation," an Indian tribe. Such a tribe is not a legal unit of international law. The American Indians have never been so regarded. 1 Hyde, International Law, p. 10. From the time of the discovery of America the Indian tribes have been treated as under the exclusive protection of the Power which by discovery or conquest or cession held the land which they occupied. Wheaton, International Law, 838; 3 Kent, Commentaries, 386; Breaux v. Jones, 4 La. Ann. 141. They have been said to be "domestic, dependent nations" (Marshall, C. J., in Cherokee Nation v. Georgia, 5 Pet. 1, 17), or "states in a certain domestic sense and for certain municipal purposes" (Clifford, J., in Holden v. Joy, 17 Wall, 211, 242). The Power which had sovereignty over the land has always been held the sole judge of its relations with the tribes within its domain. The rights in this respect acquired by discovery have been held exclusive. "No other power could interpose between them." (Marshall, C. J., in Johnson v. McIntosh, 8 Wheat. 543, 578.) So far as an Indian tribe exists as a legal unit, it is by virtue of the domestic law of the sovereign nation within whose territory the tribe occupies the land, and so far only as that law recognizes it. Before the Revolution all the lands of the Six Nations in New York had been put under the Crown as "appendant to the Colony of New York," and that colony had dealt with those tribes exclusively as under its protection. (Baldwin, J., in Cherokee Nation v. Georgia, 5 Pet. 1, 34-35.) New York, not the United States, succeeded to the British Crown in this respect at the Revolution. Hence the "Cayuga Nation," with which the State of New York contracted in 1789, 1790, and 1795, so far as it was a legal unit, was a legal unit of New York law.

If the matter rested here, we should have to say that the Legislature of New York was competent to decide, as it did in the treaties of 1829 and 1831, what constituted the "Nation," for the purposes of the prior treaties made by the State with an entity in a domestic sense of its own law and existing only for its own municipal purposes.

It does not follow, however, that Great Britain may not maintain a claim on behalf of the Cayuga Indians in Canada. These Indians are British nationals. They have been settled in Canada, under the protection of

Great Britain, and, subsequently, of the Dominion of Canada, since the end of the eighteenth or early years of the nineteenth century. There was no definite political constitution of the Cayuga Nation and it is impossible to say with legal precision just what would constitute a migration of the nation as a legal and political entity. But as an entity of New York law, it could not migrate. Nationality is the status of a person in relation to the tie binding such person to a particular sovereign nation." Parker, Umpire, in Administrative Decision No. 5, Mixed Claims Commission, United States and Germany, October 31, 1924, 19 Am. Jour. Int. Law, 612, 625. The Cayuga Nation, as it existed as a legal unit by New York law, could not change its national character, without any concurrence by New York, and become, while preserving its identity as the covenantee in the treaty, a legal unit of and by British law. The legal character and status of the New York entity with which New York contracted was a matter of New York law. Moreover the situation of the Cayuga Nation is very different from that of an ordinary corporation, which has no small margin of self-determination. Such a legal unit can not change its national character by its own act. See North and South American Construction Company's Case, 3 Moore, International Arbitrations, 2318, 2319. Even less is such a thing possible in the case of an Indian tribe, whose dependent condition is as well settled as its legal position is anomalous. Such tribes are "in a state of pupilage" (Marshall, C. J., in Cherokee Nation v. Georgia, 5 Pet. 1, 17). They have always been "subject to such restraints and qualified control in their national capacity as was considered by the whites to be indispensable to their own safety and requisite to the due discharge of the duty of protection" (3 Kent, Commentaries, 386). In the case of Indians on the public domain of the United States, they are "the wards of the Nation. They are communities dependent on the United States." (Miller, J., in United States v. Kagama, 118 U. S. 375, 383-4.) With respect to Indians, the government "is in loco parentis." (Nisbit, J., in Howell v. Fountain, 3 Ga. 176.)

When the Cayugas divided, some going to Canada and some remaining in New York, and when that cleavage became permanent in consequence of the War of 1812, Great Britain might, if it seemed desirable, treat the Canadian Cayugas as a unit of British law or might deal with them individually as British nationals. Those Indians were permanently established on British soil and under British jurisdiction. They were and are dependent upon Great Britain or later upon Canada, as the New York Cayugas were dependent on and wards of New York. If, therefore, the Canadian Cayugas have a just claim, according to "the principles of international law and of equity," Great Britain is entitled to maintain it.

That as a matter of justice the Canadian Cayugas have such a claim, has been the opinion of every one who has carefully and impartially investigated their case. In 1849, the Commissioners of the Land Office, to whom the Legislature of New York had referred a memorial of "the chiefs and warriors