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§ 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

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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. . . In the power of Congress is not determined by

this case

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, "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.

113 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.

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.

142 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.

16

Georgia.

Cherokee Nation v.

The exclusiveness of this federal jurisdiction, and, consequently, 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, decided in 1831. This case came before the court on a motion on behalf of the Cherokee Nation of Indians for a subpona 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.

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