same were recognized by international law had been exercised by Great Britain, France and Spain, and that the United the several States of the territory included within their respective boundaries. On p. 584, the Chief Justice expresses the principle adopted by the European nations as follows: "Thus, all the nations of Europe, who have acquired territory on this continent, have asserted in themselves, and have recognized in others, the exclusive right of the discoverer to appropriate the lands occupied by the Indians. Have the | American States rejected or adopted this principle?" In answer to this question the Chief Justice says (pp. 584–587): "By the treaty which concluded the war of our revolution, Great Britain relinquished all claim, not only to the government, but to the 'propriety and territorial rights of the United States,' whose boundaries were fixed in the second article. By this treaty, the powers of government, and the right to soil, which had previously been in Great Britain, passed definitively to these States. We had before taken possession of them, by declaring independence; but neither the declaration of independence, nor the treaty confirming it, could give us more than that which we before possessed, or to which Great Britain was before entitled. It has never been doubted, that either the United States, or the several States, had a clear title to all the lands within the boundary lines described in the treaty, subject only to the Indian right of occupancy, and that the exclusive power to extinguish that right, was vested in that government which might constitutionally exercise it. "Virginia, particularly, within whose chartered limits the land in controversy lay, passed an act, in the year 1779, declaring her 'exclusive right of pre-emption from the Indians, of all the lands within the limits of her own chartered territory, and that no person or persons whatsoever, have, or ever had, a right to purchase any lands within the same, from any Indian nation, except only persons duly authorized to make such purchase; formerly for the use and benefit of the colony, and lately for the Commonwealth.' The act then proceeds to annul all deeds made by Indians to individuals, for the private use of the purchasers. "Without ascribing to this act the power of annulling vested rights, or admitting it to countervail the testimony furnished by the marginal note opposite to the title of the law, forbidding purchases from the Indians, in the revisals of the Virginia statutes, stating that law to be repealed, it may safely be considered as an unequivocal affirmance, on the part of Virginia, of the broad principle which had always been maintained, that the exclusive right to purchase from the Indians resided in the government. "In pursuance of the same idea, Virginia proceeded, at the same session, to open her land office, for the sale of that country which now constitutes Kentucky, a country every acre of which was then claimed and possessed by Indians, who maintained their title with as much persevering courage as was ever manifested by any people. "The States, having within their States had succeeded to all their rights within the territory over which this Government exercised jurisdiction, and "Our late acquisitions from Spain (Florida) are of the same character; and the negotiations which preceded those acquisitions, recognize and elucidate the principle which has been received as the foundation of all European title in America. chartered limits different portions | both nations, was chiefly in the acof territory covered by Indians, tual occupation of Indians. ceded that territory, generally, to "The magnificent purchase of the United States, on conditions Louisiana, was the purchase from expressed in their deeds of ces- France of a country almost ension, which demonstrate the opin-tirely occupied by numerous tribes ion, that they ceded the soil as well of Indians, who are in fact indeas jurisdiction, and that in doing pendent. Yet, any attempt of so, they granted a productive fund others to intrude into that country, to the government of the Union. would be considered as an aggresThe lands in controversy lay within sion which would justify war. the chartered limits of Virginia, and were ceded with the whole country northwest of the river Ohio. This grant contained reservations and stipulations, which could only be made by the owners of the soil; and concluded with a stipulation, that all the lands in the ceded territory, not reserved, should be considered as a common fund, for the use and benefit of such of the United States as have become, or shall become, members of the confederation,' etc., 'according to their usual respective proportions in the general charge and expenditure, and shall be faithfully and bona fide disposed of for that purpose, and for no other use or purpose whatsoever." "The United States, then, have unequivocally acceded to that great and broad rule by which its civilized inhabitants now hold this country. They hold, and assert in themselves, the title by which it was acquired. They maintain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest; and gave also a right to such a degree of sovereignty, as the circumstances of the people would allow them to exercise." "The ceded territory was occupied by numerous and warlike tribes of Indians; but the exclusive right This extract from the opinion of the United States to extinguish expresses the view of the Supreme their title, and to grant the soil, Court, but it is necessary to read the has never, we believe, been doubted. entire opinion in order to obtain "After these States became inde-a clear idea of the principles which pendent, a controversy subsisted were established by the decision in between them and Spain respecting boundary. By the treaty of 1795, this controversy was adjusted, and Spain ceded to the United States the territory in question. son vs. McIntosh was reiterated by This territory, though claimed by Mr. Justice Field. this case. Beecher vs. Wetherby, U. S. Sup. Ct. 1877, 95 U. S. 517, Field, J. The doctrine announced in John that the Indians possessed only a right of occupancy which was subject to the governmental control of the United States. The principles enunciated in this case have frequently been followed in later decisions of the Federal Courts.3 $410. The State of Georgia and the Cherokee Nation; treaties between States and Indians. The principal diference between the Indian tribes and foreign powers which was recognized before the Cherokee Nation cases were de Jackson vs. Porter, U. S. Cir. | gress, all the country described by Ct. N. Y. 1825, 1 Paine, 457, the first section of the Act of THOMPSON, J. Held that the title June 30, 1834 (4 Stat. 729), as Inof an individual to a tract of land dian country; remains such only as under a grant made by Indians prior long as the Indians retain their to the British Treaty of Peace was title to the soil." void. The status of Indians and the effect of a deed given by them was examined at length and the principles of Johnson vs. McIntosh, were followed. Mitchel vs. United States, U. S. Sup. Ct. 1835, 9 Peters, 711, BALDWIN, J. U. S. Sup. Ct. 1841, 15 Peters, 52, WAYNE, J. The status and rights of Indians and of persons dealing with them under treaties and contracts executed prior to the cession of Florida to the United States discussed, at length. Robinson vs. Caldwell, U. S. Cir. Ct. App. 9 Cir. 1895, 29 U. S. App. 468, GILBERT, J. "The absolute title to all lands in the Indian country is vested in the United States, subject only to the Indian right of possession, which the government has the absolute right to extinguish." The effect of the treaties with Great Britain and the Nez Perce Indians in regard to the disputed territory west of the Rocky Mountains discussed. Bates vs. Clark, U. S. Sup. Ct. 1877, 95 U. S. 204, MILLER, J. "In the absence of any different provision by treaty or by Act of Con Seneca Nation vs. Christie, N. Y. Ct. App. 1891, 126 N. Y. 122, ANDREWS, J. (and see reference to this case § 347 of ch. XI; affirming same case 49 Hun. 524, BRADLEY, J.) Writ of error to the Supreme Court dismissed 1896, 162 U. S. 283, FULLER, Ch. J. A full history is given in these opinions of the relations of the Seneca Indians with New York, Massachusetts and the United States. The principles laid down in Johnson vs. McIntosh as to title followed, and the relations of the colonies and States with the Indians also discussed. Fellows vs. Blacksmith, U. S. Sup. Ct. 1856, 19 How. 366, NELson, J., affi'g Blacksmith vs. Fellows, N. Y. Ct. of Appeals, 1852, 7 N. Y. 401, EDMONDS, J. Marsh vs. Brooks, U. S. Sup. Ct., 1850, 8 Howard, 223, and 1852, 14 Howard, 513, CATRON, J. Choctaw and Chickasaw Nations vs. United States, U. S. Ct. Claims, 1899, 34 Ct. Claims, 17, Howry, J. United States vs. Cook, U. S. Sup. Ct. 1873, 19 Wall. 591, WAITE, CH. J. Jackson vs. Porter, U. S. C. C. Dist. N. Y. 1825, 1 Paine, 457, THOMPSON, J. cided, was that the United States owned the land which the Indian tribes occupied, thus exercising jurisdiction over it and the inhabitants, while there is no jurisdiction of any kind over any of the territory or inhabitants of foreign powers. When, however, controversies arose between the Cherokee Nation and the State of Georgia because the State attempted to enforce its State laws as to lands wholly within its own boundaries, but also within the territory over which the Cherokee Nation claimed exclusive jurisdiction pursuant to treaty stipulations, direct questions were raised as to the extent of the treaty-making power of the United States, and how far treaty stipulations made with Indian tribes were paramount to State legislation.1 The history of this controversy, which the Supreme Court was called upon to adjudicate during the administration of President Jackson is long and interesting; a full account of it will be found in Von Holst's Constitutional History, as well as in other detailed histories of the United States; President Jackson sympathized with the position taken by the State; and as Chief Justice Marshall took exactly the opposite view and expressed it very emphatically, personal feelings undoubtedly existed, which, while they did not affect the decision, were probably involved in the consideration of the questions which were submitted to the court, and in the action taken thereafter by the Executive Department of the Government.3 It is another strange fact that although the States of the Union could not exercise any treaty-making power with foreign states, or enter into compacts with each other, some of them did enter into treaties with Indian tribes within their own borders. The occasions were too few to establish legal precedents of importance as they are interesting, however, from an historical point of view some of them are referred to in the notes. The United States appears to have assented to these peculiar transactions.1 $410. 1 These cases are discussed at length under the next two sections. 2 Chap. XI, vol. I. 4 Treaty between State of New York and the Mobawk Indians made March 29, 1797, with the sanction of the United States of Amer7 U. S. Stat. at L. p. 61. Articles of agreement between 8 See note 1 under § 413, p. 211, ica. post. § 411. Cherokee Nation vs. State of Georgia, 1831; status of Cherokee Nation in 1831.-The first point that was raised in the controversy was whether or not the Cherokees constituted a foreign State in the sense of that term as used in the Constitution. It was admitted that the tribes did not form a State of the Union, and the opinion declared the condition of the Indians, in their relation to the United States, to be, perhaps, unlike that of any other people in existence; in general, nations not owing a common allegiance are foreign to each other, and the term of foreign nation is strictly applicable by either to the other; the relations of the Indians to the United States are marked by peculiar and cardinal distinctions which exist nowhere else. After reiterating the doctrine of occupation, practically as he had already announced it in Johnson vs. McIntosh, the Chief Justice declared that they can, perhaps, be denominated as domestic, dependent nations, occupying territory to which the United States asserts a title independent of their will, which must take effect in point of possession when their possession ceases; meanwhile they are in a state of pupilage; their relation to the United States resembles that of a ward to his guardian. After a further consideration of the subject, the opinion of the Court was that an Indian tribe or nation within the United States was not a foreign State in the sense of the Constitution, and could not, therefore, maintain an action in the Courts of the United States against one of the States. The question before the Court was solely that of jurisdiction and whether the Cherokee Nation could bring an action against the State of Georgia in the Federal Courts on questions based on State legislation in contravention of a treaty the State of Georgia and the Creek Nation, January 8, 1821. 7 U. S. Stat. at L. p. 217. Treaties between the Seneca and Tuscarora Indians and Thomas Ludlow Ogden and Joseph Fellows, made under the authority of the United States, January 15, 1838, for the sale of lands. 7 U. S. Stat. at L. p. 557, and p. 559. § 411. 1 The Cherokee Nation vs. State of Georgia, U. S. Sup. Ct. 1831, 5 Peters, 1, MARSHALL, Ch. J. As to the present status of the Cherokee Nation see Cherokee Nation vs. Southern Kansas Railway Co., U. S. Sup. Ct., 1890, 135 U. S. 641, HARLAN, J., and other cases in notes under § 416, p., 220, post. 28 Wheaton, 543; for extracts from opinion see note under § 409, pp. 204, et seq., ante. |