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 viewpoint, as aliens, and their tribes as foreign nations to be dealt with as such, namely, by treaties and pleased to sell? And if this was anything more than a mere possibility, it certainly was reduced to that state when the State of Georgia ceded to the United States, by the Constitution, both the power of pre-emption and of conquest, retaining for itself only a resulting right dependent on a purchase or conquest to be made by the United States."

4 8 Wh. 543; 5 L. ed. 681.

At the same time, however, that these Indians have thus enjoyed tribal autonomy, and their relations to the States and 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 but 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 ever been subjects of the American States or the United States, and, consequently, foreign States have never been recognized 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 by concession from the States, or, since 1789, from the Federal Government. Hence these rights have been at all limes 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." 5

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.

5 Rev. Stat., § 2079.

From the first settlement of the American colonies the Indians were treated as alien peoples outside of the control of domestic laws. No attempt was made to interfere with their domestic affairs or systems of self-government, except to endeavor to keep out the agents of other European powers who might engage them in foreign alliance. When their lands were desired, they were purchased and not confiscated. Purchases by individuals, however, were not permitted except with governmental permission. Thus, typical is the proclamation of the King of England in 1763 after the ratification of the Articles of Peace with France, in which it was declared: "And we do further declare it to be our royal will and pleasure, for the present, as aforesaid, to reserve under dominion, for the use of the said Indians, all the lands and territory lying to the westward of the sources of the rivers which fall into the sea, from the west and northwest as aforesaid: and we do hereby strictly forbid, in pain of our displeasure, all our loving subjects from making any purchases or settlements whatever, or taking possession of any of the lands above reserved, without our special leave and license for that purpose first obtained. And we do further strictly enjoin and require all persons whatsoever, who have, either wilfully or inadvertently, seated themselves upon any lands within the countries above described, or upon any other lands which, not having been ceded to, or purchased by us, are still reserved to the said Indians, as aforesaid, forthwith to remove themselves from such settlements."

In July. 1775, the first action looking to a national, that is, inter-colonial management of Indian affairs was taken when the Continental Congress resolved "that the securing and preserving the friendship of Indian nations appears to be a subject of the utmost moment to these colonies" and provided for three Indian departments with commissions in each "to treat with the Indians in their respective departments, in the name and on the behalf of the United Colonies, in order to preserve peace and friendship with the said Indians, and to prevent their taking any part in the present commotions."

In the Declaration of Independence the Indian question figures, it being charged against the British King that he had endeavored "to bring on the inhabitants of our frontiers the merciless Indian savages, whose known rule of warfare is an undistinguished deletion of all ages, sexes, and conditions."

In the Articles of Confederation the Congress of the United States was given "the sole and exclusive right and power . . . of regulating the trade and managing all affairs with the Indians, Hot members of any of the States; provided that the legislative right of any State within its own limits be not infringed or violated."

The phrase "not members of any of the States," here used, had reference to those Indians who had separated from their tribes and become mixed in the general citizen populations of the several States. It was intended also to except from national control those Indians who. though still in tribes, had become surrounded by the whites. The exception, indeed, from federal control of these isoladated and surrounded Indian tribes, and their absolute subjection to state authority continued under the Constitution of 1789, and when, in 1802, a general statute was passed for the government of the Indians, it was provided that "nothing in this act shall be construed to present 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." Thus States like New York, Massachusetts, and Maine were permitted to continue to deal according to their discretion with Indian tribes within their borders. "As a dry matter of power," observes Thayer, " Congress might at any time have taken control of them [for as we shall see, the Constitution gives to the Federal Government full authority over the Indians so long as they remain distinct from the citizen bodies of the sev-eral States]. But while Congress was staying its hand, it might happen and has happened in Massachusetts, that the tribal relation had been dissolved." 6

6.l People Without Law. Two articles in the Atlantic Monthly for October and November, 18!»1. The author is much indebted to these articles of thisthe 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