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eral Government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power. This has always been recognized by the Executive and by Congress, and by this court whenever the question has arisen.

The power of the General Government over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection, as well as to the safety of those among whom they dwell. It must exist in that Government, because it has never existed anywhere else, because the theatre of its exercise is within the geographical limits of the United States, because it has never been denied, and because it alone can enforce its laws on all the tribes."

§ 140. Congressional Legislation.

By the Act of March 30, 1802, consolidating, revising, and reenacting various prior laws, and entitled "An act to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers," a system of regulation was established which remained largely in force for many years. By Section 1, the boundary lines between the United States and the various Indian tribes according to treaties entered into with them are laid down. By following sections it is provided that no citizen of or other person resident in the United States shall, under penalty of one hundred dollars, or imprisonment for six months, enter the Indian territory without a passport; that robbery, larceny, trespass, or other crime, against the person or property of any friendly Indian, "which would be punishable, if committed within the jurisdiction of any State against a citizen of the United States," is to subject the offender to fine and imprisonment; that when Indian property is taken or destroyed, the offender shall be liable in a sum double its value; that no settlements by citizens or other persons shall be made on any lands belonging to the Indians; that no traders shall reside in Indian settlements without a license; that "no purchase, grant, lease, or other conveyance of lands, or of any title of claim thereto, from any Indian, or nation, or tribe of Indians, within the bounds of the United States, shall be of any validity, in law or

equity, unless the same be made by treaty or convention entered into pursuant to the Constitution."

"In order to promote civilization among the friendly Indian tribes, and to secure the continuance of their friendship," Section 13 declares it lawful for the President of the United States "to cause them to be furnished with useful domestic animals, and implements of husbandry, and with goods or money, as he may judge proper, and to appoint such persons, from time to time, as temporary agents, to reside among the Indians, as he shall think fit: provided, that the whole amount of such presents and allowance to such agents shall not exceed $15,000 per annum."

In the event of Indians crossing the boundaries of their lands into the States and Territories of the United States and their committing crimes of violence or stealing or destroying property, report is to be made to the tribes to which the offenders belong, and, in case the tribes refuse to make satisfaction, the President of the United States is to be notified and he is to take such steps. to compel satisfaction as may be necessary. In no case are the individuals who are injured to attempt redress by private warfare. The superior courts in each territorial district and other federal courts are given full jurisdiction to hear and determine all offenses against the act. Offenders found within any State or territorial district may be apprehended. The vending or distributing spirituous liquors among the Indians is forbidden. And, finally, as quoted above, it is declared that "nothing in this act shall be construed to prevent any trade or intercourse with Indians living on lands surrounded by settlements of the citizens of the United States, and being within the ordinary jurisdiction of any of the individual States." 14

From this act it will be seen that the tribal Indians are treated as peoples not within the citizen bodies of the States and Territories, and that no attempt is made to regulate anything but the relations between them and outsiders. The relations of individual Indians to one another and to their respective tribal authorities are left untouched.

14 2 Stat. at L. 139,

In 1817 an act was passed by Congress declaring criminal the committing of any act within Indian territories under the exclusive jurisdiction of the United States. But offenses of Indians upon Indians were expressly excluded.

From time to time additional acts of Congress were passed for the regulation of the Indians, all of them predicated upon the idea that the Indians living upon Indian lands15 constitute a class apart with a peculiar status, jurisdiction over whom is exclusively in the General Government.

§ 141. Federal Jurisdiction Exclusive.

Georgia.

Cherokee Nation v.

The exclusiveness of this federal jurisdiction, and, conse quently, the lack of constitutional power of the States in this field first came up for serious discussion in the Supreme Court of the United States in the case of The Cherokee Nation v Georgia,16 decided in 1831. This case came before the court on a motion on behalf of the Cherokee Nation of Indians for a subpana and for an injunction to restrain the authorities of the State of Georgia from executing the laws of the State within the Cherokee territory as designated by a treaty between the United States and the Cherokee Nation. The case, however, was not decided on its merits, the majority of the court, including Chief Justice Marshall, holding that the Cherokee Nation was not a foreign State within the meaning of the clause of the Constitution which extends the federal judicial power over controversies "between a State or the citizens thereof, and foreign States, citizens, or subjects," and gives to the Supreme Courts original jurisdiction in cases in which a State is a party. It was held, therefore, that the court was without power to entertain the suit.

Upon this point, Marshall in his opinion said: "Though the Indians are acknowledged to have an unquestionable, and here

15 In Bates v. Clark (95 U. S. 204; 24 L. ed. 471) "Indian lands" are defined by the Supreme Court to be "all the country to which the Indian title has not been extinguished anywhere within the limits of the United States."

165 Pet. 1; 8 L. ed. 25.

tofore, unquestioned right to the lands they occupy until that right shall be extinguished by a voluntary cession to our government, yet it may be well doubted whether those 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 independent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases. Meanwhile they are in a state of pupilage, Their relation to the United States resembles that of a ward to his guardian. They look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and address the President as their father. They and their country are considered by foreign nations, as well as by ourselves, as being so completely under the sovereignty and dominion of the United States, that any attempt to acquire their lands, or to form a political connection with them would be considered by all as an invasion of our territory, and an act of hostility. These considerations go far to support the opinion that the framers of our Constitution had not the Indian tribes in view when they opened the courts of the Union to controversies between a State or the citizens thereof, and foreign States." 17

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17 Justices Johnson and Baldwin delivered opinions concurring with that of Marshall. Justice Thompson dissented, holding the Cherokee Nation to constitute not only a sovereign State - though under the protection of the United States but a foreign State. He said: They have never been, by conquest, reduced to the situation of subjects to any conqueror, and thereby lost their separate national existence and the rights of self-government, and become subject to the laws of the conqueror. Whenever wars have taken place, they have been followed by regular treaties of peace, containing stipulations on each side according to existing circumstances; the Indian nation always preserving its distinct and separate character. And notwithstanding we do not recognize the right of the Indians to transfer the absolute title of their lands to any other than ourselves, the right of occupancy is still admitted to remain in them, accompanied with the right of self-government, according to their own usage and customs; and with the competency to act in a national capacity, although placed under the protection of the whites, and owing a qualified subjection so far as is requisite for public safety. But the principle is universally admitted that this occupancy belongs to them as a matter of

§ 142. Worcester v. Georgia.

In the great case of Worcester v. Georgia,18 decided in 1832, the question of the political status of the Indians again came before the Supreme Court for discussion and the doctrine then laid down has remained unquestioned to the present day. This case, like Cherokee Nation v. Georgia, grew out of the attempt of Georgia to exercise jurisdiction over Indian territories situated within the State's limits.

After an historical review of the dealings of England and her American colonies, and the dealings of the United States under the Constitution with the Indians, Marshall says: "The treaties and laws of the United States contemplate the Indian territory as completely separated from that of the States; and provide that all intercourse with them shall be carried on exclusively by the government of the Union. Is this the rightful exercise of power, or is it usurpation? . . . The Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights, as the undisputed possessors of the soil from time immemorial, with the single exception of that imposed by irresistible power, which excluded them from inter course with any other European potentate than the first discoverer of the coast of the particular region claimed; and this was a restriction which those European potentates imposed on themselves, as well as on the Indians. The very term 'nation' so generally applied to them, means, ' a people distinct from others.' The Constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, has adopted and sancright, and not by mere indulgence. They cannot be disturbed in the enjoy ment of it, without their free consent; or unless a just and necessary war should sanction their dispossession. In this view of their situation, there is as full and complete recognition of their sovereignty, as if they were the absolute owners of the soil. The progress made in civilization by the Cherokee Indians cannot surely be considered as in any measure destroying their national or foreign character, so long as they are permitted to maintain a separate and distinct government; it is their political condition that constitutes their foreign character, and in that sense must the term foreign be understood as used in the Constitution."

18 6 Pet. 515; 8 L. ed. 483.

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