individual Indians. From time to time, however, as we shall see, the United States Government has provided for the dividing up of these tribal lands and their apportionment in severalty among the individual Indians.

The legal status of Indians

From the earliest times the Indians, though treated as subject to the sovereignty first of the foreign colonizing powers, then of the colonies or States, and, finally, of the United States, have been considered not as citizens or subjects, that is, as members of the various bodies politic within whose midst they have lived, but, from the constitutional point of view, as aliens, and their tribes as foreign nations to be dealt with as such, namely, by treaties and agreements rather than by statutes. As alien nations, their members have not, in default of express provision 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 to 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 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 always been subjects of the American States or the United States, and, consequently, foreign States have never been conceded 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 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."

13

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

The only direct references to the Indians in the Constitution are 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,a and that Congress shall have power "to regulate commerce . . . with the Indian tribes." 5 It has, however, been held by the Supreme Court that the General Government has an authority over the Indians not springing from specific grants of power, aside from the general treaty-making power, but from the practical necessity of

3 Rev. Stat., § 2079.

4 Art. I, § 3.

5 Art. I, § 8, cl. 3.

protecting the Indians and the non-existence of a power to do so in the States."

Federal jurisdiction exclusive. Cherokee Nation v. Georgia 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 subpoena 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 Court 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 heretofore 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,

• United States v. Kagama, 118 U. S. 375; 6 Sup. Ct. Rep. 1109; 30 L. ed. 228.

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

be denominated foreign nations. They may, more correctly, perhaps, be denominated domestic dependent 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 its 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 countries, 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."

8

In the great case of Worcester v. Georgia, decided in 1832, the question of the political status of the Indians again came before the Supreme Court for discussion and a doctrine laid down which 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. This action of the State was declared unconstitutional and void, the exclusive authority of the Federal Government being emphatically asserted, "the Cherokee Nation" the court say, is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force. . . . The whole intercourse between this nation is by our Constitution and laws, vested in the Government of the United States."

86 Pet. 515; 8 L. ed. 483. See also The Kansas Indians, 5 Wall. 737; 18 L. ed. 667; The New York Indians, 5 Wall. 761; 18 L. ed. 708.

Naturalization of Indians by statute

9

In 1884, in the case of Elk v. Wilkins, the question arose as to 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 afterwards voluntarily separating himself from his tribe and taking up residence among white citizens. The court held negatively, the statement being made that "the alien and dependent condition of the members of the Indian tribes could not be put off at their own will, without action or assent of the United States."

Since this decision 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 treaty-making power.

10

At various times during past years, Congress has declared, as to particular Indian tribes, that their lands. should be divided and held in severalty by their respective members, and that, thereupon, such Indians should become citizens of the United States, and pass immediately from the exclusive jurisdiction of the Federal Government to that of the States in which they reside. By the General Land in Severalty Law, known as the "Dawes Act," approved February 8, 1887, the President was given the power to apply this process to practically every Indian reservation in the country. The peculiarity of these acts is, it will be observed, that they make citizens of Indians

9112 U. S. 94; 5 Sup. Ct. Rep. 41; 28 L. ed. 643.

10 As to the constitutionality of this legislation, and its effect upon the jurisdiction of the States, see United States v. Kagama, 118 U. S. 375; 6 Sup. Ct. Rep. 1109; 30 L. ed. 228.