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 er 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.

21

divided authority." The doctrine in this case was affirmed by the court at the same term in the case of the New York Indians.2 It has been held, however, that the state courts have jurisdiction 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.2

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 21 5 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.

of, and owing immediate allegiance to one of the Indian tribes (an alien, though dependent power), although in a geographical sense born in the United States, are no more born in the United States and subject to the jurisdiction thereof' within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of any foreign government born within the domain of that government, or the children, born within the United States, of ambassadors or other public ministers of foreign nations. . . . Such Indians, then, not being citizens by birth, can only become citizens in the second way mentioned in the Fourteenth Amendment, by being naturalized in the United States by or under some treaty or statute." 25

§ 144. Disappearance of Indian Tribal Autonomy.

Since the decision of the Supreme Court in Elk v. Wilkins a number of acts of Congress have been passed which have had the effect of destroying, to a very considerable extent, the autonomous tribal governments of the Indians and of subjecting them to the immediate legislative control of Congress instead of to the treatymaking power. The way had been opened to this change in a "rider" attached to an appropriation bill in 1871 which provided, as has been earlier stated, that "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.'

"26

By an act passed March 3, 1885, the federal courts were for the first time given considerable jurisdiction over crimes committed within the reservations by Indians upon Indians. Section

25 Justices Wood and Harlan dissented.

26 Notwithstanding this act, Congress has continued to deal with the Indians, in many cases, by agreements. That is, their formal consent has been required as a condition precedent to putting into force the legislation proposed. Some question as to the constitutionality of this has been raised, it being alleged that the practice amounts to a delegation by Congress of its legislative power in the premises. It would seem, however, that the objection is not of great weight, as it is conceded that a legislative body may make a statute conditional upon the consent of those to whom it applies, provided such assent affects merely the expediency of the statute (Cooley, Const. Lim., 7th ed., p. 164).

9 of this law provides: "That immediately upon and after the date of the passing of this Act all Indians committing against the person or property of another Indian or other person any of the following crimes; namely, murder, manslaughter, rape, assault with intent to kill, arson, burglary, and larceny, within any Territory of the United States, and either within or without the Indian Reservation, shall be subject therefor to the laws of said territory relating to said crimes, and shall be tried therefor in the same courts and in the same manner, and shall be subject to the same penalties, as are all other persons charged with the commission of said crimes respectively; and said courts are hereby given jurisdiction in all such cases; and all such Indians committing any of the above described crimes against the person or property of another Indian or other person, within the boundaries of any State of the United States, and within the limits of any Indian reservation, shall be subject to the same laws, tried in the same courts and in the same manner, and subject to the same penalties, as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States."

The constitutionality of this act was attacked upon the ground that it was not within the legislative power of Congress thus to interfere with the internal legal affairs of Indians still maintaining tribal governments. The Supreme Court held, however, in United States v. Kagama,27 that whatever political and legal freedom was enjoyed by the Indians was by way of permission or cession from the Federal Government, and was, therefore, subject to curtailment or complete withdrawal by that power. These Indian tribes," it declared, "are the wards of the Nation. They are communities dependent on the United States, dependent largely for their daily food, dependent for their political rights. They owe no allegiance to the States, and receive from them no protection."

66

To this decision the objection was urged, and, it would seem, with considerable force, that since the Indians are no longer permitted to enjoy tribal autonomy, and are no longer treated by the 27 118 U. S. 375; 6 Sup. Ct. Rep. 1109; 30 L. ed. 228.