
    A. C. DE BACA ET AL. v. THE UNITED STATES AND THE NAVAJO INDIANS.
    [Indian depredations,
    3814, 3815.
    Decided May 20, 1901.]
    
      On defendamos1 Motion.
    
    This is the same case decided on amotion in 36 O. Cls. R., 407. The questions now presented are, first, whether a child of Spanish parents born in New Mexico in 1809 -was by birth an American citizen; second, whether the defendant Indians were liable for depredations committed before the extension of the Indian intercourse act 30tli June, 1834, to New Mexico.
    
      I.A child born of Spanish parents in the province of New Mexico in the year 1809 (after the Louisiana Purchase and before the treaty 1819) was bom a subject of Spain, and did not become an American citizen until the expiration of the year prescribed by the treaty G-uadalupe-Hidalgo.
    II.The treaties between the United States and Prance, 1808, and Spain, 1819, did not affect or change the citizenship of any person dwelling within the disputed territory. Spaniards continued to be Spaniards, and their children were of the citizenship of the parents. The treaties examined.
    III.The Navajos in the ceded province of New Mexico did not become pecuniarily liable for depredations committed by individual members of the tribe until the Indian intercourse Act 30th June, 1834 (4 Stat. L., 729), was extended to the Territory by the' Act 9th September, I860 (9 id., 446, § 17). The statutory history and decisions in similar cases reviewed.
    
      The Reporters' statement of the case.
    The following are the facts of the case as found by the court:
    I. At the time of the depredation alleged in petition No. 3815, to wit, December 15,1848, the claimant was not a citizen of the United States.
    II. At the time of the depredation alleged in petition No. 3814, to wit, July 10, 1849, by the defendant Indians in the Territory of New Mexico, the claimant was a citizen of the United States, he not having, pursuant to article 8 of the treaty of 1848 (9 Stat. L., p. 922, 929), declared his intention to retain the title and right of a Mexican citizen within one year from the date of the exchange of ratifications of said treaty.
    
      Mr. II. C. Burnett for the claimant:
    It is not proper to inquire whether a people have the right to separate from the mother country and set up a new government, but it is right and proper to inquire what rights and powers a new sovereignty acquires when, as a fact, a new government is established and maintained. What does it take to make a State or Government? The term State expresses the combined idea of people, territory, and government. “A State, in the ordinary sense of the Constitution, is a political community of free citizens, occupying a territory of defined boundaries, and organized under a government sanctioned and limited by a written Constitution.” (Texas v. White, 7 Wall., 700.)
    Territorial limits of the civil and political jurisdiction of new sovereignty are fixed and determined by the political department of the same, and not by the concession of the mother country. “It has never been admitted by the United States that they acquired anything by way of cession from Great Britain by the treaty of 1783. It has been viewed only as a recognition of preexisting rights, and on that principle the soil and sovereignty within their acknowledged limits were as much theirs at the Declaration of Independence as at this hour.” (12 Wheat., 527, 530; 1 Whar. Inter. L. Dig., 27.)
    The territorial limits of the new State of Mexico were fixed by her Congress (1812 and 1824) without the consent of Spain, the mother country. (Reyns. L. L., 89,116,124.) In a controversy between the United States and a foreign nation as to boundary or territorial limits, the courts will follow the decision of those departments of its own Government to which the assertion of its interest against foreign powers is confided, i. e., the legislative and executive. (2 Pet., 253, 415, 511; 9 How., 127.) Territorial boundaries are determined by political and not judicial action. (1 Whar. Int. L. Dig., 69.)
    The courts of our Government will not adopt and accept the contention of a foreign government against the contention of the political and executive departments of our own no more than it will adopt the views of an American citizen, it matters not how eminent he may be, as being the law, when such views and contentions are antagnostic to the acts of the political and executive departments of the government.
    The facts with reference to the political and executive departments of Texas and the United States are the facts which are to determine the right of claimants to recover in this case. What are those facts'(
    
    The people of Texas declared their independence of Mexico March 2, 1836, and adopted a constitution March 17, 1836, declaring that all residents (except Indians and negroes) within the new government shall be citizens of the same. (Early Laws of Texas.) The Mexican Government sought through her armies to destroy the new government. The battle of San Jacinto was fought between the Mexican forces, under Santa Ana, President of the Mexican Government, and the Texas troops, April 21, 1836, resulting in the capture of the greater portion of the Mexican army. May 14,1836, a treaty of peace was made between the Mexican Government and the Texas Republic, recognizing the independence of the Texas Republic and establishing the Rio Grande as the boundary line between said Governments, from its mouth to its source and thence north to the fortj'-second degree of latitude. (23 Cong. Globe, 234; Brown’s Hist, of Texas, vol. 2, p. 64.)
    March 3,1837, Congress provided “for the Outfit and salary of a diplomatic agent to be sent to the Republic of Texas, whenever the President of the United States may receive satisfactory evidence that Texas is an independent power.” (5 Stat. L., 163.) On the same day President Jackson communicated to the Senate the fact that “the State of Texas having established and maintained an independent government capable of performing those duties, foreign and domestic, which appertain to independent governments,” and therefore nominated a representative to said Government (Mess, of Pres., vol. 3,2S1), which appointment was promptly confirmed by the Senate.
    A recognition of a foreign government by the United States can be made in four ways. “First, bj1-treaty; second, by passage of a law regulating commercial intercourse between two powers; third, by sending a diplomatic agent with usual credentials, or, lastly, by the Executive receiving and accrediting a diplomatic representative from the new government.” (1 Whar. Inter. L. Dig., 531.)
    In the act of recognition by the United States of a foreign government, it embraces the established fact that said government is an organized “political community of citizens, occupying a territory of defined boundaries.” Did the United States know the territorial limits claimed by Texas when her government was recognized \ Yes. President Jackson, December 21, 1836, opposed the recognition of Texas because “it would be a recognition of her territory to the full extent recently declared by her Congress. ” (Whar. Inter. L. Dig., 534.) This Government was fully advised of the territory to be embraced in the Government of Texas when her independence was recognized, and never controverted the limits after recognition. (Ibid, 536, 539, 549.)
    The United States did not stop at recognizing the independence of Texas, but as a fact made a treaty in 1838 with Texas affirming and confirming her eastern and northern territorial boundary on land and water from a point in the Gulf of Mexico opposite the mouth of- the Sabine to a point on the fortjr-second degree of latitude due north of the source of the Bio Grande. (8 Stat. L., 511.)
    Congress knew the territorial limits of Texas were situated both north and south of 30° 3', and that her territory was sufficient to make 5 States of “convenient size.” No one will assume that Congress made its proposition unadvisedly, nor in bad faith, and neither for the purpose of tickling the vanity of Texas in order to induce her to accept the proposition of annexation, and then after annexation to turn upon her and say, “You never had such territory.” The entire action of the political and executive departments of this Government is just the opposite.
    The State of Texas had two accredited members in the House of Representatives from 1846 to 1850, and two Senators in the Senate. If those men were not the accredited representatives of the whole territory embraced within and extending to the lines adopted and declared by the Texas Congress in 1836 to be her boundary, then where was the constituency and the territory they did represent? He who contends that the territory of the State of Texas did not extend to said boundary ought to show the place to which it did extend.
    In order to show the territory ceded by Mexico to the United States and the lines established by the treaty of 1848, Disturnell’s Map of Mexico, published in 1846, was made a part of said treaty. Said map shows that no part of the Mexican Territory of New Mexico was situated east of the Bio Grande; that all east of the Rio Grande and contiguous thereto, from its mouth to its source, was the State of Texas. That was the line contended for by the United States and contested by Mexico, resulting in war, and terminated in the treaty of 1848, establishing the contention of the United States, which right of contention was acquired from Texas. If Mexico had quietly acceded to the contention of the United States there would have been no war, and neither would the line have been changed. It is absurd to say that, notwithstanding the fact the United States was the successful party in the contest with Mexico, yet the whole issue in the controversy was determined in favor of Mexico; that Mexico was right in her contention, but lost; that Texas and the United States were wrong, but won.
    In McKmney v. Saviego (18 How., 235) the Supreme Court held that the treat}'' of 1848 did not protect Mexican citizens in their property in Texas; that said treaty did not apply to Texas at all, but to the ceded .territory under said treaty. But it is asserted that the people east of the Rio Grande acknowledged allegiance to Mexico during the time that Texas claimed the same; that Texas had no civil officers within that section, no tax collectors, no judges, no elections, no organized counties; in fact, no organized civil government over that portion of the territory from 1836 to 1845. It does not matter if all of- this is true, so far as this controversy is concerned. Such an argument might be germane in a controversy between the United States and Mexico; as a fact, it was used before hostilities began, and was a part of the issue determined in favor of the United States by her army and nary over sixty years ago. The Government of Texas declared during those nine years that it was in her territorial limits, and her contention was indorsed by the United States. In the history of the United States there have been large sections of her territory in the Indian country which remained much longer than nine years in an unoi’ganized condition, and even occupied by people who did not recognize allegiance to her Government and laws. The right of a sovereignty may lie dormant for years and then be revived.
    The issue as to the rights of Texas to all of the territory east of the Rio Grande was never raised by the United States Government, either by Congress or the Executive. Individual citizens may have had different views of the question, but this court will not nor can not notice such adverse views or opinions. President Polk, February 12, 1847, assured the governor of Texas that the establishment of the military or temporary government over New Mexico upon the occupation of Santa Fe by General Kearny “can never injuriously affect the right which the President believes to be justly asserted by Texas to the whole territory on this (east) side of the Rio Grande, whenever the Mexican claim to it shall have been extinguished by treatju” After the treaty of 1848 was ratified, the State of Texas again (1849) asserted her right to said territory and the establishment of her civil authority over it. During the latter part of the administration of President Polk, Mr. Marcv, Secretary of State (1848), instructed that the military at Santa Fe “ should lend aid on proper occasions in sustaining” the Texas authorities. President Taylor, in his message to the Senate, January 30, 1850 (Mess., vol. 5, p. 30), indorsed the views of his predecessor.
    The State of Texas, by various acts of her legislature, provided for the organization and administration of her authority within the territory east of the Rio Grande. (Earty laws of Texas.) This was the condition of affairs upon the passage of the act of Congress of September 9, 1850. (9 Stat. L., 446; Message President Fillmore, August 6, 1850, ATol. 5, p. 67.)
    The Supremo Court of the United States, in the case of Coolc v. TJ. S. (138 U. S., 157), made a statement of facts with reference to the whole controversy, as follows:
    “ When Texas achieved its independence, this strip (No Man’s Land) was within limits. Indeed, the Republic of Texas originally embraced the present territory of the State of Texas, as well as a part of what now constitutes New Mexico, Arizona, Colorado, and Kansas. On the day of its admission into the Union, by joint resolution of December 29,1845, the original district of Texas was established, embracing the entire State. (9 Stat., 109.) Congress, by the act of September 9, 1850, made certain propositions to Texas * * * and was accepted,” whereby the present boundaries of Texas were fixed. “The remaining territory of Texas, as it was when admitted into the Union, passed by that act under the jurisdiction of the United States. * * * The result of all these enactments ivas that the body of public lands known as the public land strip was left outside of Texas, as well as the Territories of Noav Mexico, Kansas, and Colorado.”
    This unanimous statement of facts deliberately made by the Supreme Court is so conclusive that no comment is necessary.
    Defendants contend that the laws regulating trade and intercourse with Indians were not extended over New Mexico until, and by the act of Congress, February 27, 1851. (9 Stat. L., 587.) The language of said act is that said laws “are hereby extended over the Indian tribes in the Territories of New Mexico and Utah.” A description of the Indians and not territory. The intercourse laws were extended over the Navajoes by treaty in 1849 (9 Stat. L., 974, art. 8) and over the Utahs by treaty in 1850. (9 Stat. L., 984.) It is a well-settled doctrine now that it is necessary for Congress to enact special acts to extend the laws of the United States over newly acquired territory, either by annexation or cession. {Croan v. Harrison, 16 How., 164; De Lima, v. Bidwell, 182 U. S., 748; Manuel Bepke v. U. S. (14 Diamond Rings case), latety decided by the Supreme Court.)
    Mr. Seward, Secretary of State, in 1869 said that under the decision of Cross ,v. Harrison the intercourse laws of the United States with Indians wore extended over Alaska upon its cession to the United States. (1 Whar. Int. L. Dig., 15.) Mr. Justice Brown, in the De Lima v. Bidwell case, cites Mr. Seward’s opinion approvingly. Under these constructions it becomes an established fact that the intercourse laws were extended over the whole territory of the State of Texas on the date of annexation, viz, December 29, 1845, and that said laws were also extended over the whole of the ceded territory east of the Rio Grande upon the ratification of the treaty with Mexico, MajT 30, 1848.
    
      Mr. Stanhope Henry (with whom was Mr. Assistant Attorney-General Thompson) for the defendants.
   Peelle, J.,

delivered the opinion of the court:

The question of the citizenship of the claimant’s decedent at the time one of the depredations set forth in the petition was committed was presented to the court at the last term by the defendants’, motion for a new trial and decided adversely to the claimants. (36 C. Cls. R., 407.) Upon the recent trial of the case the question wras again presented to the court by an elaborate argument, in which a new ground was set up by claimants’ counsel. That ground was that the claimants’ decedent was born in 1809 in the Mexican province of New Mexico, then within the limits of the Louisiana purchase. It was contended that the place of his birth was then territory of the United States, and that by virtue of his birth in such territory he was and ever since has continued to be a citizen of the United States.

It is conceded by the parties to this action that the claimants’ decedent, Antonio Sandoval, was born of Spanish parentage in the town of Santa Fe, east of the Rio Grande River, in the Territory of New Mexico, in the year 1809, and that he continued to reside in said Territory east of the Rio Grande until his death, in 1862.

The claimants’ contention is that at the time of the birth of said Sandoval the Territory of New Mexico east of the Rio Grande was owned b3r the United States by virtue of their treaty with France of April 30, 1803, and so continued territory of the United States until their treaty with Spain in 1819.

The territory known under the name of Louisiana, including the island of New Orleans, was ceded to the King of Spain by France in 1762, but in October, 1800, as recited in Article I of the treaty of 1803, the same territory was retroceded to France under the name of “the colonyor province of Louisiana, with the same extent that it now has in the hands of Spain and that it had when France possessed it, and such as it should be under the treaties subsequent^ entered into between Spain and other States.” (8 Stat. L., 200.)

So that whatever territory France originally possessed she acquired by the retrocession; and by the treaty of 1803, aforesaid, between the United States and the French Republic, after reciting in the first article the terms of the retro-cession from Spain to France of “the colony or province of Louisiana,” it is provided:

“And whereas, in pursuance of the treaty,.and particularly of the third article, the French Republic has an indisputable title to the domain and to the possession of the said territory: The First Consul of the French Republic, desiring to give to the United States a strong proof of its friendship, doth hereby cede to the United States, in the name of the French Republic, forever and in full sovereignty, the said territory, with all its rights and appurtenances, as fully and in the same manner as they have been acquired by the French Republic, in vii'tue of the above-mentioned treaty, concluded with His Catholic Majesty.”

It will thus be seen that whatever territory was theretofore owned by France and Spain was ceded to the United States, but in neither of the treaties were the boundaries of “the colony or province of Louisiana” definitely fixed; but the United States, acting upon the belief that France and Spain had in some way dehors the treaty, determined the Rio Grande to be the western boundary of the territory ceded and retro-ceded (Adams’s History U. S., vol 2, p. 6), made that claim.

This was controverted bjT the Spanish Government, and after much correspondence the differences between the two Governments were settled by the treaty of February 22, 1819 (8 Stat. L., 252), whereby the United States by article 2 acquired by cession from Spain the territory east of the Mississippi River known as East and West Florida, while the boundary line between the two countries west of the Mississippi River was defined by article 3 as beginning “on the Gulf of Mexico, at the mouth of the river Sabine, in the sea, continuing north along the western bank of the river to the thirty-second degree of latitude; thence by a line due north to the degree of latitude where it strikes the Rio Roxo of Nachitoches, or Red River; then following the course of the Rio Roxo westward to the degree of longitude 100 west from London and 23 from Washington; then crossing the said Red River and running thence by a line due north to the river Arkansas; thence following the course of the southern bank of the Arkansas to its source, in latitude 42 north; and thence by that parallel of latitude to the South Sea.” * * * “The United States hereby cede to His Catholic Majesty and renounce forever all their rights, claims, and pretensions to the territories tying west and south of the above-described line; and, in like manner, His Catholic Majesty cedes to the said United States all his rights, claims, and pretensions to any territory east and north of said line.”

By the treaty thus made it will be noted that the United States renounced or quitclaimed to Spain all their right and pretensions to the disputed territory — that is to say, the territory west of the Sabine River and south of the northern line defined by the treaty, thence west to the Rio Grande — while Spain ceded to the United States all her claims and pretensions to any territory east and north of that line.

If we should assume that the United States owned the controverted territory by virtue of their treaty with France in 1803, and that by virtue thereof the claimants’ decedent at the time of his birth, in 1809, acquired citizenship in the United States in right of his parents under article 3 of that treaty, which entitled inhabitants of the ceded territory to “ be incorporated in the Union of the United States and admitted as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages, and immunities of citizens of the United States,” the question would still remain open as to said Sandoval’s status after the treaty of 1819. But the court can not assume that the disputed territory was acquired by cession from France by the treaty of 1803. On the contrary, at least one provision of the treaty of 1819 seems to rebut such presumption.

By article 6 of the treaty of 1819 it is provided that the inhabitants of the territories which His Catholic Majesty cedes to the United States bjr this treaty shall be “ incorporated in the Union of the United States as soon as may be consistent with the principles' of the Federal Constitution and admitted to the enjojrment of all the privileges, rights, and immunities of the citizens of the United States;” but there is no provision in the treaty with reference to the citizenship of the inhabitants in the disputed territory, thus indicating to our minds that such temtory had not up to that time ceased to be Spanish territory, and for that reason no provision was necessary concerning their citizenship under the Spanish Government.

The court can not regard these treaties as affecting or changing the citizenship of any person dwelling within the limits of the disputed territory. Spaniards continued to be Spaniards and Americans continued to be Americans, and their children were of the citizenship of their parents.

The court has no knowledge of any case where a like claim has ever been made. The inhabitants of, say, the town of Santa Fe were universally regarded as Spaniards, or Mexicans, until the United States acquired that territory by treaty. The treaty of Guadalupe-Hidalgo recognized all of those inhabitants as Mexican citizens, and made provision for their remaining such or becoming citizens of the United States at their own election. Expatriation and change of allegiance require the action or assent of the individual, express or implied, and must rest upon his voluntary act or upon some treaty provision. A child of American citizens in Spain does not become a Spaniard through accident of birth; and the children of aliens born in the United States have an election whether they will become citizens of the United Stat.es or remain citizens of their parents’ country.

On the former trial of this case it was, as stated in the opinion of the court, conceded that the claimants’ decedent ‘‘was born on Mexican territory, a citizen of Mexico,” and afterwards acquired citizenship in the United States through his citzenship in the Bepublic of Texas, which latter claimed to own by conquest the disputed territory at the time of her annexation to the United States.

This question is so fully covered in the former opinion of the court that little more need be said.

It is true that after the people of Texas had declared their independence, adopted a constitution, establishing a republic, and by act of her legislature declared her boundaries so as to include the territory east of the Bio Grande, the territory then known as the province of Mexico was claimed by Mexico on both sides of the Bio Grande; and that part of the territory east of the Bio Grande was in dispute when the war between the United States and the Bepublic of Mexico began; that while Texas had achieved her independence and declared her western boundary so as to include the disputed territory, she had never conquered or reduced to possession the territory or brought it within the government and laws of the Bepub-lic of Texas. On the contrary, when war began between the United States and the Bepublic of Mexico, Mexico was in possession of the disputed territory with a government established at Santa Ee, supported b}’’ an armed force to repel invasion or encroachment, as recited in the President’s proclamation of July 24, 1848 (Messages, vol. 4, p. 594).

So that the claimants’ decedent was not only born on Mexican territory, but continued subject to the Government and laws of Mexico until he acquired citizenship in the United States under the treaty of Guadalupe-Hidalgo.

Eor this and other reasons, which need not be gone into further, the court must adhere to its former conclusion that the claimants’ decedent was born a subject of Spain and did not become a citizen of the United States until the expiration of the year prescribed by the treaty of Guadalupe-Hidalgo— that is to say, “ one year from the date of the exchange of ratifications” of the treaty, which latter took place May 30, 1848..

Therefore the claimants’ decedent, by his election so to do, became a citizen of the United States May 31, 1849, and as the depredation alleged of December 15, 1848, was prior to the date óf his becoming a citizen of the United States, the petition in that ease, No. 3815, must be dismissed.

As the depredation alleged in the petition to have occurred July 10,1849, was subsequent to the date when the claimants’ decedent became a citizen of the United States, the next question which arises is, Can there be a recovery under the Indian depredation act of 1891 for a depredation committed in the territory thus acquired (New Mexico) before the extension of the act of June 30, 1834 (4 Stat. L., 729), known as “Anact to regulate trade and intercourse with the Indian tribes and to preserve peace on the frontiers ? ”

This case is prosecuted under the act of March 3, 1891 (26 Stat. L., 851), known as the Indian depredation act, which is the act of our jurisdiction and is remedial.

We have heretofore uniformly held that the act does not create claims nor impose liabilities upon the Indians; that whatever rights the citizen has for depredations committed by Indians must have arisen under treaties or the act of 1834, and that before the Indians or the Government can be held liable it must appear that the citizen had suffered the loss or destruction of his property by Indians belonging to some band, tribe, or nation in amity with the United States. In other words, ihe liability of the United States follows that of the Indians, which must have existed, if at all, prior to the passage of the act of 1891, for by the last paragraph of section 2 of that act it is provided “that no suit or proceeding shall be allowed under this act for any depredation which shall be committed after the passage thereof.” Therefore to entitle a citizen to maintain an action in this court the depredation made the basis of a claim must have been com-mittecl prior to the passage of the act of 1891, and, too, by Indians belonging to some tribe in amity with the United States; and, furthermore, such citizen must, by reason of such loss, have thereby acquired a right to compensation from such tribe. If this be true, then it follows that such right must have accrued, if at all, under the act of 1834, as there was no treaty and that was the only act in force at the time of the passage of the act of 1891.

Section 1 of the act of 1834 provides that “all that part of the United States west of the Mississippi, and not within the States of Missouri and Louisiana or the Territory of Arkansas, and also that part of the United States east of the Mississippi River and not within any State to which the Indian title has not been extinguished for the purposes of this act, be taken and deemed to be the Indian countiy.”

New Mexico not then being a part of the United States, was not, of course, included within the above description.

Section 11 of the same act piovides “that if any Indian or Indians, belonging to any tribe in amity with the United States, shall, within the Indian country, take or destroy the property of aiy person lawfully within such country, or shall pass from the Indian country into any State or Territory inhabited by citizens of the United States, and there take, steal, or destroy any horse, horses, or other property belonging to aiy citizen or inhabitant of the United States, such citizen or inhabitant, his representative, attorney, or agent, may make application to the proper superintendent, attorney, or agent” for compensation as therein provided.

As no provision was made in the treaty of 1848 for extending the laws of the United States to that Territory, the intercourse act of 1834 did not apply to depredations committed therein by Navajo Indians who were domiciled in that Territory, unless the act of its own force was so extended.

This latter, however, does not appear to have been the view taken by the Congress or the Executive, for by the act of September 9,1850, section 11 (9 Stat. L., 446, 452), providing, among other things, for the establishment of a Territorial government for New Mexico, it was provided “that the Constitution, and all laws of the United States which are not locally inapplicable, shall have the same force and effect within said Territory of New Mexico as elsewhere within the United States.”

On the same day the Senate ratified the treaty entered into between the United States and the Navajo Indians, September 9, 1849 (9 Stat. L., 974), whereby the Indians, in Article III, acknowledged that by virtue of the treaty of Guadalupe Hidalgo they were “placed under the exclusive jurisdiction and protection” of the United States, and they' agreed that the trade and intercourse act of 1834 “shall have the same force and efficiency, and shall be as binding and as obligatory upon the said Navajos, and executed in the same manner, as if said laws had been passed for their sole benefit and protection.”

But, as if the Congress had some doubt as to whether the act and treaty so passed and ratified were sufficient to accomplish the purpose, they, by the act of February 27,1851, section 7 (9 Stat. L., 587), provided “that all the laws now in force regulating trade and intercourse with the Indian tribes, or such provisions of the same as may7 be applicable, shall be, and the same are hereby, extended over the Indian tribes in the Territories of New Mexico and Utah. ”

It is at least reasonable to presume that had the Congress believed that the Constitution and laws of the United States had by their own force extended to the territory acquired by conquest and by treaty they would not have passed the acts they did.

Later, by Revised Statutes, section 1891, it was provided: “The Constitution and laws of the United States which are not locally inapplicable shall have the same force and effect within all the organized Territories and in every Territory hereafter acquired as elsewhere in the United States.”

From the foregoing acts, as well as from other acts of the Congress extending the Constitution and laws of the United States to territory acquired by7' treaty, as in the cases of Louisiana, Florida, and Alaska, it would seem that Congress, by7 their acts, had construed that provision of section 3, Article IV, of the Constitution as giving them plenary power to make all needful rules and regulations respecting the territory and other property belonging to the United States, and that as the Constitution also empowers the Congress “ to regulate commerce with * * * the Indian tribes,” it follows that the extension of the act of 1834 “oyer the Indian tribes in the Territories of New Mexico and Utah” was a necessary exercise of such power, without which the act of 1834 would not have been in force in said Territory, unless by virtue of .the treaty with said Indians as aforesaid, about which we need not now express an opinion, as it is not necessary to the decision of this case.

On this question the decisions of the Supreme Court, as stated in the case of Downes v. Bidwell (182 U. S. R., 244, 258), “have not been harmonious.” Some of them are based upon the theoiy that the Constitution does not apply to the Territories without legislation. Other cases arising in Territories where such legislation has been had contained language which would justif}' the inference that such legislation was unnecessary and that the Constitution took effect immediately upon the cession of the territory to the United States.”

In the case of American Insurance Company v. Canter (1 Pet., 511, 542) the court, speaking by Chief Justice Marshall, said: “ Perhaps the power of governing a Territoiy belonging to the United States, which has not by becoming a State acquired the means of self-government, may result necessarily from the facts that it is not within the jurisdiction of any particular State and is within the power and jurisdiction of the United States. The right to govern maj7 be the inevitable consequence of the right to acquire territory. Whichever may be the source whence the power is derived, the possession of it is unquestioned.”

And, later in the case of the Mormon Church v. The United States (136 U. S., 1-42), it was said “The powers of Congress over the Territories of the United States is general and plenary, arising from and incidental to the right to acquire the territory itself, and from the power given by the Constitution to make all rules and regulations respecting the territory or other property belonging to the United States.”

But without further examination of the authorities on this question, we now take it that whatever doubt may have existed as to whether the Constitution and laws of the United States, of their own force, extended to territoiy acquired by conquest or by treaty, has been removed since the decision in the case of Downes v. Bidwell (supra), where the court, after reviewing the various acts of the Congress respecting the Territories of the United States, at page 258, says: “It is sufficient to say that Congress has or has not applied the revenue laws to the Territories, as the circumstances in each case seemed to require, and has specifically legislated for the Territories whenever it was its intention to execute laws beyond the limits of the States. Indeed, whatever may have been the fluctuations of opinion in other bodies (and even this court has not been exempt from them), Congress has been consistent in recognizing the difference between the States and Territories under the Constitution.”

And after a careful review of the various decisions of the Supreme Court respecting the legislation of Congress with refei’ence to Territories, the court, at page 219, says:

“In all these cases, as well as in Territories subsequently organized west of the Mississippi, Congress thought it necessary either to extend the Constitution and laws of the United States over "them, or to declare that the inhabitants should bo entitled to enjoy the right of trial by jury, of bail, and of the privilege of the writ of habeas corpus, as well as other privileges of the bill of rights.
“We are also of opinion that the power to acquire territory by treaty implies not only the power to govern such territory, but to prescribe upon what terms the United States will receive its inhabitants, and what their status shall be in what Chief Justice Marshall termed the ‘American Empire.’ There seems to be no middle ground between this position and the doctrine that if their inhabitants do not become, immediately upon annexation, citizens of the United States, their children thereafter born, whether savages or civilized, are such, and entitled to all the rights, privileges, and immunities of citizens. If such bo their status, the consequences will be extremely serious. Indeed, it is doubtful if Congress would ever assent to the annexation of territory upon the condition that its inhabitants, however foreign they may be to our habits, traditions, and modes of life, shall become at once citizens of the United States. In all its treaties hitherto the treaty-makingpowerhasmade special provisionfor this subject; in the cases of Louisiana and Florida, by stipulating that ‘ the inhabitants shall be incorporated into the Union of the United States and admitted as soon as possible * * * to the enjoyment of all the rights, advantages, and immunities of citizens of the United States;’ in the case of Mexico, that they should ‘be incorporated into the Union, and be admitted at the proper time (to be judged by the Congress of the United States),to the enjoyment of all the rights of citizens of the United States;’ in the case of Alaska, that the inhabitants who remained three years, ‘with the exception of uncivilized native tribes, shall be admitted to the enjoyment of all the rights,’ etc., and in the case of Porto Rico and the Philippines, ‘that the civil rights and political status of the native inhabitants * * '* shall be determined by Congress.’ In all these cases there is an implied denial of the right of the inhabitants to American citizenship until Congress by further action shall signify its assent thereto.”

The court, at page 286, further says:

“The executive and legislative departments of the Government have for more than a century interpreted this silence as precluding the idea that the Constitution attached to these Territories as soon as acquired, and unless such interpretation be manifestly contrary to the letter or spirit of the Constitution, it should be followed by the judicial department.” (Cooley’s Consti. Lim., secs. 81 to 85; Burrow-Giles Lithographic Co. v. Sarony, 111 U. S., 53, 57; Field v. Clark, 143 Ü. S., 491, 649.)

For the reasons we have given we must hold that neither the defendant Indians nor the United States are liable for the depredation committed by said Indians in the Territory of New Mexico July 10, 1849, prior to the time when the intercourse act of June 30,1834, was extended over that Territory, and the petitions in both cases will therefore be dismissed.  