and three years after the said date, secured by a conveyance to an approved trustee of the real estate hereinafter fully and particularly mentioned and described, and intended to be conveyed to the said Charles Kerrison, hereto of the second part, in trust, for the better securing of the said notes, a schedule whereof, with the names of the said creditors and the respect ive amounts of the notes given to each of them, all bearing the date and payable on the days aforesaid, is hereunto annexed and made a part of these presents; and whereas all other the creditors of the said Kerrison & Leiding may be disposed to come in upon the footing of the said agreement and security, and in that event it is intended to secure to them that right, and also to provide for making the security more effectual.

*

*

* * *

the said notes, then, after paying and retaining all proper charges, expenses and commissions, to pay the clear residue of the cash so received by him, to the parties or holders of the said notes in average and proportion to the several and respective amounts due upon the said notes, if the cash be not sufficient to pay the whole thereof, and in the same way to pay the proceeds of sale of the whole property (less charges, commissions and expenses) pro rata, if the whole be not sufficient to pay the said notes in full at their maturity."

A. T. Stewart & Co. were named as creditors in the second schedule; but they declined to accept under the trust. Paton & Co. were named in the first schedule, and Benkard & Hutton in the second.

On August 8, 1866, and before the execution Now this deed further witnesseth, That the of the deed of trust, Stewart & Co. sued out a said Edwin L. Kerrison and Herman Leiding, summons, entitled "Sixth Circuit of the United * * for the better securing their said notes, States of America, South Carolina District," and such as may be given to their other cred- and tested by the Chief Justice of the United itors, * * have granted, bargained, sold States, at Greenville, South Carolina, commandand released, and by these presents do grant,ing the Marshal of the United States for that hargain, sell and release, unto the said Charles district to summon Edwin L. Kerrison and HerKerrison [here follows the description of all the man Leiding to appear before the clerk of the property]. To have and to hold all and singular circuit court of the United States for the aforethe premises unto the said Charles Kerrison, his said circuit and district, at the rules to be holden heirs and assigns for ever, in trust, at Charleston, in the aforesaid district, on the nevertheless, in the first place, to hold the said first Monday in September next, to answer etc. premises as a security for the several and res- The writ was signed by the clerk of the Circuit pective parties, creditors of the said Kerrison Court for the District of South Carolina, and & Leiding, named in the first section of the sealed. At the day named, Kerrison & Leiding, by schedule hereunto annexed, for the several and their attorneys, entered their appearance to the respective sums set opposite to their names, with suit, before the clerk. Stewart & Co. then filed interest, as above recited; and also for such other their declaration, containing several counts; to parties, creditors of the said Kerrison & Leiding, a part of which Kerrison & Leiding demurred, the names of which are, as is believed and in- and to others they pleaded specially. They tended, to be correctly stated in the second sec also pleaded the general issue. Stewart & Co. tion of the said schedule hereto annexed, who, demurred to the special pleas, and the cause at any time before the first day of December was placed upon the docket of the circuit court. next in lieu and satisfaction of their claim, shall At a regular Term of the circuit court, holden at take and accept the notes of the said Kerrison Charleston in June and July, 1867, the demur& Leiding, bearing the same date, 1st December, rers to the declaration were overruled, and 1866, payable at the same time (two and three those to the special pleas sustained. The cause years after date), with interest from the same (1st | then standing for trial upon the general issue, June, 1865), each note for one half the principal was continued. In the following August, the due such creditors as the creditors named in the docket of the circuit court was taken to Greenfirst section of the said schedule have taken ville, at which place, on the first Monday in and accepted; and thereupon the proper amount that month, a regular Term of the District shall be set opposite the names of the said cred Court for the Western District of South Caroitors named in the second section of the said lina was held, that court having circuit court schedule; and, in the next place, in trust, unless jurisdiction and powers in that part of the disthe said notes be paid by the parties hereto of trict of South Carolina embraced within the the first part in the meantime, then at public or Western District. Before the Term, the attor private sale to sell and dispose of all and singular neys of Stewart & Co. notified the attorneys of the premises aforesaid, or so much thereof as Kerrison & Leiding that they should insist upon may be necessary, or to raise the sum required the trial of the cause at that term and place. by mortgage (if practicable), in due time, to Accordingly, the parties appeared, and upon provide for the payment of the said notes as they the regular call of the docket a trial was had. shall fall due, together with all proper charges, The case was argued by counsel on both sides, expenses, and commissions to be allowed to the without objection to the jurisdiction. A versaid Charles Kerrison, which commissions shall dict having been rendered by the jury in favor not exceed five per cent. upon the amount of of Stewart & Co., judgment was in due form sales or sums raised by mortgage. Or if he, the entered thereon, Sep. 24, 1868. Execution said Charles Kerrison, should deem it best for was issued upon the judgment, and returned the interest of all, then to sell and dispose of the nulla bona; whereupon Stewart & Co. filed their said premises, or any part of them, at any time bill in equity in the Court of Common Pleas after the execution and delivery of these pres for the County of Charleston, a state court of ents, as he may think proper, for cash or on such South Carolina, against Edwin L. Kerrison, credit as may enable him to meet the said notes Herman Leiding, Charles Kerrison, Paton & at maturity: and if he should so sell for cash, Co., and Hutton (the last two as representative or for cash and credit, before the maturity of|creditors), praying that the deed of trust to

Charles Kerrison might be adjudged void as to them, and that the property covered by it might be subjected to the payment of their judgment. The Kerrisons and Leiding appeared and defended the suit. Publication was made to bring in Paton & Co. and Hutton, who were nonresidents of the State; but they did not appear, or make defense. The Court of Common Pleas, June 22, 1870, after hearing, adjudged the deed to be void as to Stewart & Co. From this decree the Kerrisons and Leiding appealed to the Supreme Court of the State, where it was affirmed, March 1, 1872.

Kerrison & Leiding were adjudged bankrupts upon their own petition, April 6, 1872, and afterwards Charles Kerrison was duly appointed and qualified as their assignee. This bill was filed by him, as such assignee, in the Circuit Court for the District of South Carolina, against Stewart & Co., and the creditors provided for in the trust-deed, to adjust the liens upon the property, with a view to a sale and distribution of the proceeds under the direction of the court. Stewart & Co. answered, claiming a prior lien under the operation of their judgment and the decree of the state court in their favor; and they insist that the creditors are bound by that decree. The creditors answered, alleging that the judgment in favor of Stewart & Co. was void for want of jurisdiction in the court in which it was rendered; or, if not void, that it is invalid as to them, by reason of certain irregularities in the proceedings previous to and at the time of its rendition, and that, as they were not parties to the suit in the state court, they are not bound by the decree. The circuit court sustained the prior lien of Stewart & Co., and decreed accordingly. From this decree the creditors and the assignee in bankruptcy appeal to this court.

The first question to be considered in this case is, whether the creditors of Kerrison & Leiding, who claim the benefit of the trust created by the deed to Charles Kerrison, are concluded by the decree against him in the state court. If they are, the decree of the circuit court must be affirmed.

The principle which underlies this rule has always been applied in proceedings relating to railway mortgages, where a trustee holds the security for the benefit of bond holders. It is not, as seems to be supposed by the counsel for the appellants, a new principle developed by the necessities of that class of cases, but an old one, long in use under analogous circumstances, and found to be well adapted to the protection of the rights of those interested in such securities, without subjecting litigants to unnecessary inconvenience.

Undoubtedly, cases may arise in which it would be proper to have before the court the beneficiaries themselves, or some one other than the trustee to represent their interests. They then become proper parties, and may be brought in or not, as the court in the exercise of its judicial discretion may determine. But this was very clearly not a case in which such action was required, and so all the parties evidently thought, while the litigation was progressing. The trustee, as well as Kerrison & Leiding, appeared, and vigorously resisted the decree asked for. The report of the case in Stewart v. Kerrison, 3 Rich. (N. S.), 266, to which we have been referred, shows that they were represented by the same counsel who appear here for the creditors, that the argument was full, and the judgment carefully considered. In addition to this, Paton & Co. and Hutton, who are among the creditors now resisting the decree, were named as parties to the suit, and might have appeared to defend, if they had been so inclined. They seem, however, to have been then content to leave their interests in the hands of the trustee, who certainly could present their defense if he would, and against whom no charge of neglect even is now made.

It remains to determine whether Charles Kerrison was authorized to represent the creditors in proceedings against him to defeat the title he held for their security. This depends upon the intention of the parties, as expressed in the deed creating the trust and making him the trustee. Looking to that, we find that he was the "approved trustee," provided for in the arrangeIt cannot be doubted, that, under some cir- ment between Kerrison & Leiding and the ma cumstances, a trustee may represent his bene- jority of their creditors, which was the foundaficiaries in all things relating to their common tion of the trust. He was to "hold the prem interest in the trust property. He may be in- ises" as security for the scheduled creditors who vested with such powers and subjected to such had already accepted the terms proposed, and obligations that those for whom he holds will also for such of certain other creditors named be bound by what is done against him, as well in a second schedule as should thereafter acas by what is done by him. The difficulty lies cept. If the debts so secured were not paid by in ascertaining whether he occupies such a Kerrison & Leiding, it was made his duty to position, not in determining its effect if he does. provide the means for their payment, as well If he has been made such a representative, it is as the payment of all proper charges and exwell settled that his beneficiaries are not neces-penses, either by a public or private sale of the sary parties to a suit by him against a stranger to enforce the trust, Shaw v. R. R. Co., 5 Gray, 171; Bifield v. Taylor, 1 Beat., 91 [1 Molloy, 193]; Campbell v. R. R. Co., 1 Woods, 376; Ashton v. Bk., 3 Allen, 220; or to one by a stranger against him to defeat it in whole or in part. Rogers v. Rogers, 3 Paige, 379; Wakeman v. Grover, 4 Paige, 34; Winslow v. R. R. Co., 4 Minn., 317; Campbell v. Watson, 8 Ohio, 500. In such cases, the trustee is in court for and on behalf of the beneficiaries; and they, though not parties, are bound by the judgment, unless it is impeached for fraud or collusion between him and the adverse party.

property, or by mortgage, if practicable. If he should deem it best for the interest of all, he was authorized to sell the whole or any part of the property at any time for cash, or on such credit as would enable him to meet the debts at maturity; but if he did sell before maturity, the cash received, after deducting all proper charges, etc., was to be divided amongst the creditors in proportion to the amounts due them respectively.

From this it appears that he was not only in vested with the legal title to the property, but that all parties relied upon his judgment and discretion for the protection of their respective

treaty, concluded October 2, 1863, a portion of the lands occupied by them, reserving enough for their own use. The 7th article is in these words: "The laws of the United States now in force, or that may hereafter be enacted, prohibiting the introduction and sale of spirituous liquors in the Indian Country, shall be in full force and effect throughout the country hereby ceded, until otherwise directed by Congress or the President of the United States." The ceded country is now part of an organized county of the State of Minnesota; and the question is whether the incorporation of this article in the Treaty was a rightful exercise of power. If it was, then the proceedings to seize and libel the property introduced for sale in contravention of the terms of the Treaty were proper and must be sustained.

charge of an agent. The county was not Indian country, nor did it even have an Indian reservation in it. It was contended, among other things, that the sale of liquor to an Indian, or any other person within the county, was a matter of state policy, for the State to decide for itself, with which Congress had nothing to do. But this court held that the power to regulate commerce with the Indian Tribes was, in its nature, general and not confined to any locality; that its existence carried with it the right to exercise it, whenever there was a subject to act upon, although within the limits of a State; and that it extended to the regulation of commerce with the individual members of such tribes. It was also contended that the Intercourse Act was not a regulation of commerce within the meaning of the Constitution; but the court held otherwise, and said, "It (the Act) relates to buying and selling and exchanging commodities, which is the essence of all commerce, and it regulates the intercourse between the citizens of the United States and those tribes, which is another branch of commerce and a very important one."

In the record of the judicial determinations of this court there are few decisions of greater interest and importance than those which were pronounced in Cherokee Nat. v. Ga., 5 Pet., 1; and Worcester v. Ga., 6 Pet., 515. Chief Justice Marshall, in these cases, with a force of reasoning and extent of learning rarely equaled, The power is in nowise affected by the magstated and explained the condition of the In- nitude of the traffic or the extent of the interdians in their relation to the United States and course. As long as the Indians remain a disto the States within whose boundaries they tinct people, with existing tribal organizations, lived; and this exposition was based on the recognized by the Political Department of the power to make treaties and regulate commerce Government, Congress has the power to say with the Indian Tribes. Under the Articles of with whom, and on what terms they shall deal, Confederation of 1777, two limitations were and what articles shall be contraband. If liquor placed upon the power of Congress over Indian is injurious to them inside of a reservation, it affairs: the Indians must not be members of any is equally so outside of it; and why cannot ConState, nor must Congress do anything to vio-gress forbid its introduction into places near by, late or infringe the legislative right of a State which the Indians would be likely to frequent? within its own limits. Of necessity, these limit-It is easy to see that the love of liquor would ations rendered the power of no practical value. This was seen by the Convention which framed the Constitution; and Congress now has the exclusive and unfettered power to regulate commerce with the Indian Tribes, a power as broad as that to regulate commerce with foreign nations. The only efficient way of dealing with the Indian Tribes was to place them under the protection of the General Government. Their peculiar habits and character required this; and the history of the country has shown the necessity of keeping them "separate, subordinate and dependent." Accordingly, treaties have been made and laws passed separating Indian Territory from that of the States, and providing that intercourse and trade with the Indians should be carried on solely under the authority of the United States. Congress very early passed laws relating to the subject of Indian commerce, which were from time to time modified by the lessons of experience.

The Act of June 30, 1834, 4 Stat. at L., 732. as amended by the Act of March 15, 1864, 13 Stat. at L., 29, is the one now in force on this subject. This Act defines what shall be deemed Indian country and directs the manner in which trade and intercourse with the Indians shall be carried on. The amendment forbids anyone under certain penalties, to give or sell liquor to an Indian in charge of an agent, or to introduce it into the Indian country.

In U. S. v. Holliday, 3 Wall., 409 [70 U. S., XVIII., 182], the power of Congress to pass such a law was the main point in controversy. Holliday was indicted for selling liquor in Gratiot County, Michigan, to an Indian in

tempt them beyond their borders to obtain it; and that bad white men, knowing this, would seek adjoining localities, where the traffic was not prohibited rather than venture upon forbidden ground. If Congress has the power, as the case we have last cited decides, to punish the sale of liquor anywhere to an individual member of an Indian Tribe, why cannot it also punish the introduction of liquor for a similar purpose into territory in proximity to that where the Indians live? There is no reason for the distinction: and as there can be no divided authority on the subject, our duty to a dependent people would require Congress to impose further restrictions, should country adjacent to Indian Reservations be used to carry on the liquor traffic with Indians.

The Indian Country, as defined by the Act of 1834, was then so remote from settlements, that there was no occasion to extend the prohibition to adjacent territory. This country has been so narrowed by successive Treaties that the white population is now all around it and regarding it with a wistful eye. It would be strange indeed, in view of this changed condition, if the commercial power, lodged solely with Congress and unrestricted as it is by state lines, did not extend to the enactment of a law to exclude spirituous liquors intended to corrupt the Indians, not only from existing Indian country. but from that which had ceased to be so, by reason of its cession to the United States. The

power to define originally the Indian country, within which the unlicensed introduction and sale of liquors were prohibited, necessarily carries with it the power to enlarge the prohibited boundaries, whenever, in the opinion of Con.

gress, the interests of Indian intercourse and trade will be best subserved.

It is true, Congress has not done this; but the Federal Constitution declares a treaty to be the law of the land; and Chief Justice Marshall, has said. "That a treaty is to be regarded, in courts of justice, as equivalent to an Act of the Legislature, whenever it operates of itself, without the aid of any legislative provision." There is no legislation required to put the 7th article in force; and it must become a rule of action for this court if the contracting parties had power to incorporate it in the Treaty of 1863. About this there would seem to be no doubt. From the commencement of the Government the United States has negotiated with the Indians in their tribal condition as nations; dependent, it is true, but still capable of making treaties. And this was only following the practice of Great Britain before the Revolution. In Worcester v. Georgia [supra], the court say, "The words 'treaty' and 'nation,' are words of our own language, selected in our diplomatic and legislative proceedings by ourselves, having each a definite and well understood meaning. We have applied them to Indians as we have applied them to the other nations of the earth. They are applied to all in the same

sense.

been departed from in this case, for the prohibition does not rest on any ground which makes a distinction between the States, and the fact that the ceded territory is within the limits of Minnesota is a mere incident and not the foundation of the prohibition. The Act of Congress imported into the Treaty applies alike to all Indian Tribes occupying a particular country, whether within or without state lines. And as it is based exclusively on the federal authority over the subject-matter there is no disturbance of the principle of state equality.

Besides, the power to make treaties with the Indian Tribes is, as we have seen, co extensive with the power to make treaties with foreign nations. And it cannot be doubted that the treaty-making power is ample to cover all the usual subjects of diplomacy with different powers. One of these subjects relates to the acquisition aud distribution of property belonging to the citizens or subjects of each in the territory of the other. A treaty embracing this matter may contravene the statutes of a State; but if it does the courts would disregard them and give to the alien the full protection accorded him by the Treaty. If this result can be obtained by treaty with a foreign nation, surely the Federal Government can, in the exercise of its power to treat with Indians, make provision over a subject like the present, coming, as it does, within the clause relating to the regula tion of commerce.

In consequence of this interpretation, a country which, if left to the Indians, would have remained a wilderness, is now occupied by farms, towns and cities. There was no legitimate way Minnesota, instead of being injured, is benefitto accomplish this result except by extinguished by this Treaty. An immense tract of valuing the Indian title; and the subject-matter of this Treaty is the cession of a large tract of land in the State of Minnesota and the Territory of Dakota. Indeed, the acquisition of territory is the moving cause of all Indian treaties, and will continue to be so, until Indian reservations are confined to very narrow limits. It is admitted that these Pembina Indians had the same right as other tribes to occupy their lands as long as they pleased, and that this right of occupancy could only be extinguished by voluntary cession to the Government. If so, why not annex to the cession a condition deemed valuable to the Indians and beneficial to the United States, as tending to keep the peace on the frontiers?

The chiefs doubtless saw, from the curtailment of their reservation, and the consequent restriction of the limits of the Indian country, that the ceded lands would be used to store liquors for sale to the young men of the tribe; and they well knew, that, if there was no ces sion, they were already sufficiently protected by the extent of their reservation.

Under such circumstances it was natural that

they should be unwilling to sell, until assured that the commercial regulation respecting the introduction of spirituous liquors should remain in force in the ceded country, until otherwise directed by Congress or the President. This stipulation was not only a reasonable one to which the contracting parties had the right to agree, but was due from a strong government to a weak people it had engaged to protect. It is not easy to see how it infringes upon the position of equality which Minnesota holds with the other States. The principle that federal jurisdiction must be the same, under the same circumstances, in every State, has not

able country formerly withdrawn from her civil jurisdiction is subjected to it, and her wealth and power greatly increased. Traversed by railroads, built, in part, at least, with the aid of lands which Congress was enabled to give by means of this Treaty, the country is open to preemption and homestead settlements and sale, and will soon be occupied by a hardy and industrious people. All that the General Government asks in return for this is that the ceded lands shall retain their original status, so far as the introduction and sale of spirituous liquors to the Pembina Indians are concerned.

It would seem, apart from the question of power, that the price paid by the State bears no proportion to the extent of the purchase, and we are happy to say that the authorities of the State are not engaged in making this defense.

and record remanded, with directions to overrule The judgment of the Circuit Court is reversed the demurrer and try the case.

Court of the United States, hereby certify that the I, James H. McKenney, Clerk of the Supreme foregoing is a true copy of the opinion of the Court in the case of United States, Plf. in Err.,v. Bernard Lariviere et al., claimants of forty-three gallons of 1876, as the same remains upon the official records whisky, and other property, No. 61 of October Term, of the said Supreme Court.

In testimony whereof I hereunto subscribe my name and affix the seal of the [SEAL.] said Supreme Court, at the City of Washington, this twenty-first day of January, A. D. 1885.

JAMES H. MCKENNEY,
Clerk U. S. Sup. Ct.

Cited-95 U. S., 208; 108 U. S., 494; 109 U. S., 567 ; 2 McCrary, 67, 305; 6 Sawy, 376.