Wheaton says: "They (treaties) continue to bind the State, whatever intervening changes may take place in its internal constitution or in the persons of its rulers. The State continues the same, notwithstanding such change, and consequently the treaty relating to national objects remains in force so long as the nation exists as an independent State."
There is no disagreement among authorities on this point. It is also said by some, seeking to defend or palliate the United States Government's continuous violations of its treaties with the Indians, that the practice of all nations has been and is to abrogate a treaty whenever it saw good reason for doing so. This is true; but the treaties have been done away with in one of two ways, either by a mutual and peaceful agreement to that effect between the parties who had made it—the treaty being considered in force until the consent of both parties to its abrogation had been given—or by a distinct avowal on the part of one nation of its intention no longer to abide by it, and to take, therefore, its chances of being made war upon in consequence. Neither of these courses has been pursued by the United States Government in its treaty-breaking with the Indians.
Vattel says, on the dissolution of treaties: "Treaties may be dissolved by mutual consent at the free-will of the contracting powers."
Grotius says: "If either party violate the League, the other party is freed; because each Article of the League hath the form and virtue of a condition."
Kent says: "The violation of any one article of a treaty is a violation of the whole treaty. ***
"It is a principle of universal jurisprudence that a compact cannot be rescinded by one party only, if the other party does not consent to rescind it, and does no act to destroy it. ***
"To recommence a war by breach of the articles of peace, is deemed much more odious than to provoke a war by some new demand or aggression; for the latter is simply injustice, but in the former case the party is guilty both of perfidy and injustice."
It is also said, with unanswerable irrelevancy, by some who seek to defend or palliate the United States Government's continuous violation of its treaties with the Indians, that it was, in the first place, absurd to make treaties with them at all, to consider them in any sense as treaty-making powers or nations. The logic of this assertion, made as a justification for the breaking of several hundred treaties, concluded at different times during the last hundred years, and broken as fast as concluded, seems almost equal to that of the celebrated defence in the case of the kettle, which was cracked when it was lent, whole when returned, and, in fact, was never borrowed at all. It would be a waste of words to reason with minds that can see in this position any shelter for the United States Government against the accusation of perfidy in its treaty relations with the Indians.
The statement is undoubtedly a true one, that the Indians, having been placed in the anomalous position as tribes, of "domestic dependent nations," and as individuals, in the still more anomalous position of adult "wards," have not legally possessed the treaty-making power. Our right to put them, or to consider them to be in those anomalous positions, might be successfully disputed; but they, helpless, having accepted such positions, did, no doubt, thereby lose their right to be treated with as nations. Nevertheless, that is neither here nor there now: as soon as our Government was established, it proceeded to treat with them as nations by name and designation, and with precisely the same forms and ratifications that it used in treating with other nations; and it continued to treat with them as nations by name and designation, and with continually increasing solemnity of asseveration of good intent and good faith, for nearly a century. The robbery, the cruelty which were done under the cloak of this hundred years of treaty-making and treaty-breaking, are greater than can be told. Neither mountains nor deserts stayed them; it took two seas to set their bounds.
In 1871, Congress, either ashamed of making treaties only to break them, or grudging the time, money, and paper it wasted, passed an act to the effect that no Indian tribe should hereafter be considered as a foreign nation with whom the United States might contract by treaty. There seems to have been at the time, in the minds of the men who passed this act, a certain shadowy sense of some obligation being involved in treaties; for they added to the act a proviso that it should not be construed as invalidating any treaties already made. But this sense of obligation must have been as short-lived as shadowy, and could have had no element of shame in it, since they forthwith proceeded, unabashed, to negotiate still more treaties with Indians, and break them; for instance, the so-called "Brunot Treaty" with the Ute Indians in Colorado, and one with the Crow Indians in Montana—both made in the summer of 1873. They were called at the time "conventions" or "agreements," and not "treaties;" but the difference is only in name.