to have an unquestionable and heretofore unquestioned right to the land they occupy until that right shall be extinguished by a voluntary cession to our government, yet it may well be doubted whether these tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may, more correctly perhaps, be denominated domestic dependent nations."1 In 1871 it was enacted by Congress that no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation; but provided that no obligation of any treaty lawfully made and ratified with any such Indian nation or tribe prior to March 3, 1871, shall be invalidated or impaired. It was probably under the latter provision that the State Department, in 1894, ruled, in a letter to the British ambassador in relation to the case of British subjects who claimed that they were unjustly removed from the Choctaw country, that "those people who go into that country must be held to have done so with full knowledge of those treaties and of the Choctaw laws and must accept the consequence if they are found to be there without proper authority."2 The conditions existing between the United States and the North American Indians bear a resemblance to those existing between Great Britain and the native princes of British India. The latter, though more civilized and more autonomous, like the North American Indians, have no relations with foreign powers or with one another. In 1891 the government of India declared that the principles of international law have no bearing upon the relations between the government of India, as representative of the Queen Empress and the native states under her protection. The paramount supremacy of the former presupposes and implies the subordination of the latter.3 1C. J. Marshall, Cherokee Nation v. State of Georgia, 1821. * Westlake, “Chapters on Int. Law,” p. 213. TOPICS AND REFERENCES 1. Sovereign States Subjects of International Law T. J. Lawrence, "Principles of International Law," pars. 34-37. Wheaton's "International Law," par. 16. Moore's "Digest," vol. I, par. 3. 2. Definition and Characteristics of Sovereign States Holland, "Jurisprudence," 44-46. Scott, "Cases of International 3. Form of Government or Religion Not a Consideration in Foreign Relations Phillimore, "International Law," I, 3d ed., 81. Westlake, "Chapters," etc., 141. Oppenheim, part I, chap. I. 4. Legal Equality of Sovereign States Vattel, "Preliminaries," par. 18, 21. Walker, "Science of International Law," 115. Davis, "International Law," 3d ed., 36. 5. Status of States in a Federal Union with Respect to International Law and Treaties— Chinese Exclusion Act, U. S., 581, 604. Hart, "Introduction to Federal Government," 178-192. Halleck, vol. I, Baker's 4th ed., 78. 6. Communities, Corporations, etc., That Are Not Subjects of International Law Lorimer, "Institutes, etc." (1883), bk. II, chaps. II and XVII; bk. III, chap. II. Hershey, "Essentials," 96. Baty, "International Law in South Africa," chap. II. 7. Status of the Vatican Halleck, Baker's 4th ed., vol. I, 111, 128, and 153. Westlake, 2d ed., I, 37-39. Oppenheim, vol. I, 2d ed., 159-162. 8. Neutralized States Hertslet's, "Map of Europe by Treaty," vol. II, 979-998, 1415 to 1450; vol. II, 180. Wheaton's "Elements of International Law,” pars. 416-421. Walker, "Science of Int. Law," 448-451. 9. Part-Sovereign States and Protectorates— Moore's "Digest," vol. I, 18. Westlake, "Int. Law," 2d ed., part 10. Status of North American Indians Marshall in Cherokee Nation v. State of Georgia, 1821, 5 Peters 11. Status of Native Princes of British India Westlake's "Int. Law," 2d ed., part I, 41-43. Hall, "Int. Law," 27-28. Tapper, "Our Indian Protectorate." CHAPTER V FORMATION, RECOGNITION, AND CONTINUITY OF STATES. CHANGES OF GOVERNMENTS. DE FACTO GOVERNMENTS. EXTINCTION OF STATES 45. The Formation of States. It is generally said that questions with respect to the origin of states belong rather to the province of political philosophy than to that of international law. This may be so in an abstract sense, but it can hardly be claimed to be so in the question of the formation of a modern sovereign state in its historical and legal phases. The matter of its recognition as a sovereign state and its relations thus established with other states comes clearly within the domain of international law. The actual system of sovereign states, or the family of nations, in the civilized world dates from the peace of Westphalia in 1648, and the members of this system or family in Europe at that date were members because of their existence as states at the time. "The modern international society was thus founded," says Westlake, "and the states which belonged to it in 1648, including those which continue their identity under different names and with varied limits, as Savoy became Sardinia, and Sardinia Italy, may be called its original members. Since 1648, without reckoning the growing intercourse with states of Oriental civilizations, new members have been added to the full international society by many different processes."1 The following are circumstances and conditions under which states can in the present day attain the qualities and char1 Westlake, "Int. Law," part I, p. 43. acteristics necessary to their recognition as sovereign states by the community of nations: First. After occupation or colonization in a territory without civilized population. Second. By the attainment, after previous existence, of sufficiently full civilization and standing. Third. By the division of a state into two or more nationalities. Fourth. By attaining independence as a nationality from the subjection of another state. Fifth. By the combination of a number of minor states into a federal union or confederation. Sixth. By the attainment of independence of an insurgent political community. 46. The Formation of a State by Occupation or Colonization in a Territory Without Civilized Population.-A sovereign state has been already defined as among other things a community of persons permanently located within a fixed territory. The mode of acquiring this territory varies according to circumstances. It may have been discovered before but not occupied. A claim to territory by a nation on the ground of discovery alone is not sufficient; there must be also actual and beneficial occupation. As to the aboriginal inhabitants, formerly little attention was paid to them and their claims of ownership and possession. The English colonies settled in America, however, did better. They, as a rule, paid for the territory occupied, and in the main this policy has been followed by the United States. As a rule, however, if the land occupied is "peopled by uncivilized tribes which are not politically organized under any government possessing the marks of sovereignty" an occupation by civilized peoples is tolerated or accepted. A modern case under this head is that of the Transvaal Republic. In 1836 a number of Dutch farmers left Cape Colony and went into an unsettled portion of South Africa. |