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

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 intercourse 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.

tioned the previous treaties with the Indian Nations, and consequently admits their rank among those powers who are capable of making treaties. 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 manner.

"Georgia, herself, has furnished conclusive evidence that her former opinions on this subject concurred with those entertained by her sister States, and by the government of the United States. Various acts of her legislature have been cited in the argument, including the contract of cession made in the year 1802, all tending to prove her acquiescence in the universal conviction that the Indian nations possess a full right to the lands they occupied until that right should be extinguished by the United States, with their consent; that their territory was separated from that of any State within whose chartered limits they might reside, by a boundary line, established by treaties; that within their boundary, they possessed rights with which no State could interfere, and that the whole power of regulating the intercourse with them was vested in the United States. The Cherokee

Nation, then, is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter but with the assent of the Cherokees themselves or in conformity with treaties and with the acts of Congress. The whole intercourse between the United States and this nation is, by our Constitution and laws, vested in the government of the United States. The act of the State of Georgia under which the plaintiff in error was prosecuted is consequently void, and the judgment a nullity." 19

19 In the Dred Scott case, Taney describes the political status of the Indians as follows: "It is true," he says, 'that they formed no part of the local communities and never amalgamated with them in social connections or in government. But although they were uncivilized, they were yet a free and independent people, associated together in nations or tribes, and governed by

The absolute power of the Federal Government over the tribal Indians, derived not only from the Commerce Clause of the Constitution, but from the obvious necessities of the case, has carried with it, as we have seen in the Cherokee Nation v. Georgia, and Worcester v. Georgia cases, an implied prohibition upon the State to exercise authority over them.

In the Kansas Indians,20 decided in 1867, the court, denying to a State the constitutional power to tax the property of Indians not incorporated into its citizen body, say: "If the tribal organization of the Shawnees [the Indians in question] is preserved intact, and recognized by the political department of the Government as existing they are a people distinct from the others, capable of making treaties, separated from the jurisdiction of Kansas, and to be governed exclusively by the Government of the Union. If under the control of Congress from necessity there can be no their own laws. Many of these political communities were situated in territory to which the white race claimed the ultimate right of dominion. But that claim was acknowledged to be subject to the right of the Indians to occupy it as long as they thought proper, and neither the English nor colonial governments claimed or exercised any dominion over the tribe or nation by whom it was occupied, nor claimed the right to the possession of the territory, until the tribe or nation consented to cede it. These Indian governments were regarded and treated as foreign governments, as much so as if an ocean had separated the red man from the white; and their freedom has constantly been acknowledged, from the time of the first emigration to the English colonies to the present day, by the different governments which succeeded each other. Treaties have been negotiated with them, and their alliance sought for in war; and the people who compose these Indian political communities have always been treated as foreigners not living under our government. It is true that the course of events has brought the Indian tribes within the limits of the United States under subjection to the white race; and it has been found necessary, for their sake as well as our own, to regard them as in a state of pupilage, and to legislate to a certain extent over them and the territory they occupy. But they may, without doubt, like the subjects of any other foreign government, be naturalized by the authority of Congress, and become citizens of a State, and of the United States; and if an individual should leave his nation or tribe, and take up his abode among the white population, he would be entitled to all the rights and privileges which would belong to an emigrant from any other foreign people."

20 5 Wall. 737; 18 L. ed. 667.

divided authority." The doctrine in this case was affirmed by the court at the same term in the case of the New York Indians.21

It has been held, however, that the state courts have jurisdic tion over offenses committed by Indians off the reservation and within the State's territorial limits.22

Because of the peculiar quasi-independent status ascribed to the Indian tribes, and the exclusion of their individual members from the general citizen body of the United States, the political departments of the General Government in the control of them have not been held bound by the constitutional limitations which apply to the citizens of the United States.23

§ 143. Naturalization of Indians by Statute.

In 1884, in the case of Elk v. Wilkins,24 the question arose whether an Indian, born a member of one of the Indian tribes within the United States, became a citizen of the United States under the Fourteenth Amendment, by reason of his birth within the United States, and his afterward voluntarily separating himself from his tribe and taking up a residence among white citizens. In declaring that he did not and could not thus become a citizen, the court said: "The alien and dependent condition of the members of the Indian tribes could not be put off at their own will, without the action or assent of the United States. They were never deemed citizens of the United States, except under explicit provisions of treaty or statute to that effect, either declaring a certain tribe, or such members of it as chose to remain behind on the removal of the tribe westward, to be citizens, or authorizing individuals of particular tribes to become citizens on application to a court of the United States for naturalization, and satisfactory proof of fitness for civilized life. . . . Indians born within the territorial limits of the United States, members

215 Wall. 761; 18 L. ed. 708. See post, p. 314, the case of United States v. Rickert, 188 U. S. 432; 23 Sup. Ct. Rep. 478; 47 L. ed. 532.

22 People v. Antonio, 27 Cal. 404; Hunt v. State, 4 Kan. 60; United States v. Yellow Sun, 1 Dill. 271.

23 For a discussion of the reasonableness of this doctrine based upon the necessities of the case, see article in the American Law Review, XV, 21, entitled "The Legal Position of the Indians," by George F. Canfield. 24 112 U. S. 94; 5 Sup. Ct. Rep. 41; 28 L. ed. 643.