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,7 decided in 1831. This case came before the court on a motion on behalf of the Cherokee Nation of Indians for a subpœna 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,

6 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.

against their will. The action is taken at the discretion of the President and the result is citizenship.11

11 For cases sustaining this legislation, and declaring generally the extent of the legislative authority of Congress over the Indians, see Cherokee Nation v. Southern Kansas Ry. Co., 135 U. S. 641; 10 Sup. Ct. Rep. 965; 34 L. ed. 295; Stephens v. Cherokee Nation, 174 U. S. 445, 19 Sup. Ct. Rep. 722; 43 L. ed. 1041; Cherokee Nation v. Hitchcock, 187 U. S. 294; 23 Sup. Ct. Rep. 115; 47 L. ed. 183; Lone Wolf v. Hitchcock, 187 U. S. 553; 23 Sup. Ct. Rep. 216; 47 L. ed. 299; United States v. Rickert, 188 U. S. 432; 23 Sup. Ct. Rep. 478; 47 L. ed. 532; In re Hoff, 197 U. S. 488; 25 Sup. Ct. Rep. 506; 49 L. ed. 848; Tiger v. Western Investment Co., 31 Sup. Ct. Rep. 378; Hallowell v. United States, 31 Sup. Ct. Rep. 587.

CHAPTER XV

THE ADMISSION OF NEW STATES

The admission of new States

The process of admitting new States to the American. Union is a comparatively simple one and but few constitutional questions have arisen in connection with it. The constitutional clause governing the subject reads as follows: "New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the jurisdiction of any other State; or any State be formed by the junction of two or more States or parts of States, without the consent of the legislatures of the States concerned as well as of the Congress." It will thus be seen that nothing is said as to the conditions that must be met by a given Territory before it may claim, or Congress be obligated to grant, admission to the Union as a State. The whole matter is left absolutely to the discretion of Congress. There can be no question that at the time of the adoption of the Constitution the idea was generally held that all non-State territory held or to be held by the United States was to be regarded as material from which new States were to be created as soon as population and material development should warrant. But no attempt was made to force the hand of Congress under circumstances that could not be

1 1 Art. IV, § 3.