With reference to the title possessed by Indians in the lands occupied, or hunted over by them, the principle was from the first applied by the white settlers that by discovery and occupation the title in fee to all the lands thus taken possession of became vested in the sovereign of the State under whose authority the conquest was made.1

This: principle that the original title to all the land within a State is in the sovereign of that State, and that by grant from him all individual titles are obtained, was the feudal one which the crown lawyers of England bad developed; and, after the separation from that country, the American Commonwealths continued to apply the doctrine, substituting, however, of course, the respective States for the English Crown. With the formation of the present Union; and the transfer to it by the several 'states-df their respective claims to public lands, the United States was substituted as the owner of all lands to which private titles 'had not been obtained. This grant to the Federal Govermnent carried with it whatever interest or title the several -States had had in the Indian lands.

1 In earlier years the attempt was made to establish in international law the principle that mere discovery of unoceupied land, or land inhabited by uncivilized tribes, is sufficient to give title to the sovereign by whose subjects the discovery was made. This principle, however, never obtained general recognition, and the present doctrine was established that in order to give a national title which other States are bound to respect, discovery must be followed, within a reasonable time, by effective occupation.

The first discussion in the Supreme Court of the United "States of the title or interest still retained by the Indians in the lands oc-cupied by them, was in the case of Fletcher v. Peck.2 This case involved the question whether the State of Georgia had been seized in fee of certain lands which it had sold, but later resumed postion of. Marshall in his opinion, without attempting any argument, said: " It was doubted whether a State can be seized in fee of lands subject to the Indian title, and whether a decision that they were seized in fee, might not be construed to amount to a decision that their grantee might maintain an ejectment for them, notwithstanding that title. The majority of the court is of opinion that the nature of the Indian title, which is certainly to be respected by all courts, until it be legitimately extinguished, is not such as to be absolutely repugnant to seizin in fee on the part of the State." 3

2 6 Cr. 87; 3 L. ed, 162.

3 .Just ice Johnson disputed from this doctrine, holding that the;fee was in the Indians, and that the interest of the United States consisted in a right of pre-emption. He said: "What, thru, practically, is the interest of the States in the soil of the Indians within their boundaries? Unaffected by particular treaties, it is nothing more than what was assumed at the first settlement of the country, to wit. a right of conquest or of purchase, exclusively of all competitors within certain definite limits. All restrictions upon the right of soil in the Indians amount only to an exclusion of all competitors from their markets; and the limitation upon their sovereignty amounts to the right of governing every person within their limits except If the interest of Georgia was nothing more than a pre-emptive right, how could that be called a fee simple, which was nothing more than a power to acquire a fee simple by purchase, when the proprietors should be 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.

In Johnson v. M'Intosh4 the question of titles to Indian lands was thoroughly examined and a conclusion reached which was substantially the same as that boldly stated without argument by Marshall in the Fletcher v. Peck case. In substance it was held that while the fee to Indian lands is in the United States, and, therefore, that the Indians are not able to grant titles to the same which will be recognized in the courts of the United States, nevertheless these Indians have certain possessory rights from which they may be dispossessed by the United States only with their consent, and upon compensation therefor.

The doctrines thus laid down in 1823 by Marshall in Johnson v. M'Intosh have never been changed, and the practice of the United States government uniformly throughout its history has been in acordance with it. That is to say, where Indians have been dispossessed of their lands their consent, in form at least, has been obtained, and compensation made either in the form of money or other lands. Where tribal relations have been maintained these possessory rights have been held to be vested in the tribes respectively, and not severally in the 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.