The enforcement, or rather the attempted enforcement, of this legislative declaration has led the diplomatic branch of our government into many difficulties. With reference to a considerable number of countries these difficulties have in a great measure been obviated by the negotiation with them of naturalization treaties.

Judicial decisions in the United States as to the existence of a right of expatriation in the absence of statutes creating it have not been uniform.8

8 Talbot v. Janson, 3 Dall. 133; 1 L. ed. 540; Inglis v. Sailors' Snug Harbor, 3 Pet. 99; 7 L. ed. 617; M'Ilvaine v. Coxe, 2 Cr. 280; 2 L. ed. 279. See also Moore's Digest of International Law, III, § 433.

CHAPTER XIV

THE LEGAL STATUS OF INDIANS

Indian lands

The legal relations of the Indians to the various governments established by their white conquerors have had reference, broadly speaking: (1) to their rights to the lands occupied by them; and (2) to their political status either as tribes or individuals.

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.

The 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 had 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 of their respective claims to public lands, the United States was substituted as the owner of all the lands to which private titles had not been obtained. This grant to the Federal Government carried with it whatever interest or title the several States had had in the Indian lands.

The first discussion in the Supreme Court of the United

States of the title or interest still retained by the Indians in the lands occupied by them, was in the case of Fletcher v. Peck.1 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 possession of. Marshall in his opinion, without attempting an argument, said: "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 seisin in fee on the part of the State."

In Johnson v. M'Intosh 2 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 Fletcher v. Peck. In substance it was held that although 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 made.

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 accordance 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

16 Cr. 87; 3 L. ed. 162. 28 Wh. 543; 5 L. ed. 681.

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."

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,4 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.