agreements rather than by statutes. As alien nations, their members have not, in default of express provisions to the contrary, been held subject to the general laws of the States in which they have resided or to the statutes of the General Government. The relations of Indians to one another have been held to be a matter for the several tribal authorities to regulate, and when these tribal authorities have been impotent, the Indians have lived practically without law.

At the same time, however, that these Indians have thus enjoyed tribal autonomy, and their relations to the States and the Federal Government regulated by treaties and agreements rather than by statute, and their tribes spoken of as foreign nations, there has never been any question but that, in reality, the sovereignty over them after the Revolution and prior to 1789 was in the individual States, and since that time in the United States. From the point of view of general international relations the Indians have ever been subjects of the American States or the United States, and, consequently, foreign States have never been recognized to have a right to deal directly with them. Furthermore, from the point of view of American constitutional law, such attributes of independence and sovereignty as they have enjoyed have been derived by concession from the States, or, since 1789, from the Federal Government. Hence these rights have been at all times subject to withdrawal without the Indians' consent. This was conspicuously shown by the Act of Congress of 1871. This law for the enactment of which the consent of the Indians was neither sought nor obtained declared: "No Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe or power with whom the United States may contract by treaty." 5

Since this act of 1871 the legal supremacy of the United States has been further shown by a number of legislative acts, some of them extending the authority of federal laws and the jurisdiction of the federal courts over acts previously subject exclusively to the authority of the tribes; others providing for the apportionment in 5 Rev. Stat., § 2079.

severalty of the tribal lands and the naturalization of Indians without their request or consent.

From the first settlement of the American colonies the Indians were treated as alien peoples outside of the control of domestic laws. No attempt was made to interfere with their domestic affairs er systems of self-government, except to endeavor to keep out the agents of other European powers who might engage them in foreign alliance. When their lands were desired, they were purchased and not confiscated. Purchases by individuals, however, were not permitted except with governmental permission. Thus, typical is the proclamation of the King of England in 1763 after the ratification of the Articles of Peace with France, in which it was declared: "And we do further declare it to be our royal will and pleasure, for the present, as aforesaid, to reserve under dominion, for the use of the said Indians, all the lands and territory lying to the westward of the sources of the rivers which fall into the sea, from the west and northwest as aforesaid: and we do hereby strictly forbid, in pain of our displeasure, all our loving subjects from making any purchases or settlements whatever, or taking possession of any of the lands above reserved, without our special leave and license for that purpose first obtained. And we do further strictly enjoin and require all persons whatsoever, who have, either wilfully or inadvertently, seated themselves upon any lands within the countries above described, or upon any other lands which, not having been ceded to, or purchased by us, are still reserved to the said Indians, as aforesaid, forthwith to remove themselves from such settlements."

In July, 1775, the first action looking to a national, that is, inter-colonial management of Indian affairs was taken when the Continental Congress resolved" that the securing and preserving the friendship of Indian nations appears to be a subject of the utmost moment to these colonies," and provided for three Indian derartments with commissions in each "to treat with the Indians in their respective departments, in the name and on the behalf of the United Colonies, in order to preserve peace and friendship with the said Indians, and to prevent their taking any part in the Present commotions."

In the Declaration of Independence the Indian question figures, it being charged against the British King that he had endeavored "to bring on the inhabitants of our frontiers the merciless Indian savages, whose known rule of warfare is an undistinguished destruction of all ages, sexes, and conditions."

In the Articles of Confederation the Congress of the United States was given "the sole and exclusive right and power

of regulating the trade and managing all affairs with the Indians, not members of any of the States; provided that the legislative right of any State within its own limits be not infringed or violated."

The phrase "not members of any of the States," here used, had reference to those Indians who had separated from their tribes and become mixed in the general citizen populations of the several States. It was intended also to except from national control those Indians who, though still in tribes, had become surrounded by the whites. The exception, indeed, from federal control of these isolated and surrounded Indian tribes, and their absolute subjection to state authority continued under the Constitution of 1789, and when, in 1802, a general statute was passed for the government of the Indians, it was provided 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." Thus States like New York, Massachusetts, and Maine were permitted to continue to deal according to their discretion with Indian tribes within their borders. "As a dry matter of power," observes Thayer, "Congress might at any time have taken control of them [for as we shall see, the Constitution gives to the Federal Government full authority over the Indians so long as they remain distinct from the citizen bodies of the several States]. But while Congress was staying its hand, it might happen and has happened in Massachusetts, that the tribal relation had been dissolved." 6

A People Without Law. Two articles in the Atlantic Monthly for October and November, 1891. The author is much indebted to these articles of this

§ 139. Federal Power over Indians.

The only direct references to the Indians in the present Constitution are in the provisions that "Indians not taxed" shall not be counted in determining the number of representatives in Congress to which a State is to be entitled, and that Congress shall have power to regulate commerce with the Indian tribes." 8

The powers conferred upon the General Government by the Commerce Clause will be discussed in another chapter. It may here be observed, however, that the federal authority over commerce with the Indians is much broader than that over commerce between the States. As Prentice and Egan observe: "The purpose with which this power [commerce with the Indians] was given to Congress was not merely to prevent burdensome, conflicting or discriminating state legislation, but to prevent fraud and injustice upon the frontier, to protect an uncivilized people from wrongs by unscrupulous whites, and to guard the white population from the danger of savage outbreaks. A grant made with such a purpose must convey a different power from one whose purpose was to insure the freedom of commerce. Congress has, in the case of Indians, prohibited trade in certain articles, it has limited the right to trade to persons licensed under federal laws, and in many ways asserted a greater control than would be possible over other branches of commerce." 9

"Commerce with foreign nations and among several States is that commerce which involves transportation across state lines, and is put within federal control to avoid discriminating, conflicting, and burdensome state legislation. Commerce with the Indian tribes frequently involves no such transportation. It may be carried on wholly within the limits of a single State.

this case

In

the power of Congress is not determined by

eminent jurist. The reference to Massachusetts has in mind the law of that State enacted in 1869 whereby every Indian in that State was made a citizen of the State.

7 Art. I, Sec. 3.

8 Art. I, Sec. 8, Cl. 3.

9 The Commerce Clause of the Federal Constitution, p. 342.

the locality of the traffic, but extends wherever intercourse with Indian tribes, or with any member of an Indian tribe, is found, although it may originate and end within the limits of a single State. The jurisdiction is, therefore, personal rather than economic in its nature." 10

In United States v. Holliday" the court held that Congress had the power to forbid the sale of liquor to an Indian in charge of an agent, in a State and outside of an Indian reservation. The opinion declared: "The locality of the traffic [with Indians] can have nothing to do with this power. The right to exercise it with reference to any Indian tribe, or any person who is a member of such tribe, is absolute, without reference to the locality of the traffic, or the locality of the tribe, or of the member of the tribe with whom it is carried on."

And in United States v. 43 Gallons of Whiskey12 was upheld the power of Congress to exclude spirituous liquors not only from existing Indian country but from that which had ceased to be so by reason of its cession to the United States, but was adjacent to the Indian settlements. The same regulation, the court declared, could be provided by the treaty-making power.

It has been held by the Supreme Court that the General Government has an authority over the Indians not springing from these specific grants of power, but from the practical necessity of protecting the Indians and the non-existence of a power to do so in the States. Thus in United States v. Kagama13 the courts refused to derive the power of the United States to enact a criminal code for the Indians from its power to regulate commerce with them, but rested it upon the broader basis that has been mentioned. The Indian tribes, the court declared in that case, I owe no allegiance to the States and receive from them no protection. Because of the local ill feeling the people of the States where they are found are often their deadliest enemies. From their very weakness and helplessness, so largely due to the dealing of the Fed

10 Prentice & Egan, Op. cit., p. 346.

11 3 Wall. 407: 18 L. ed. 182.

12 93 U. S. 188; 23 L. ed. 846.

13 118 U. S. 375; 6 Sup. Ct. Rep. 1109; 30 L. ed. 228.

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