Page:Haaland v. Brackeen.pdf/98

16 laws would take care of criminal offenses, the provisions’ proponents did not reply that state laws were disabled on this point—they instead noted that citizens might go beyond the limits of States and commit crimes. See 3 Annals of Cong. 751. And notably, Congress’ early statutes did not purport to regulate Indians either on or off Indian lands—they instead regulated and penalized only U. S. citizens who were trading with Indians or committing acts on Indian lands that threatened the peace with the tribes.

Those statutory lines reflected the early dynamic of federal-Indian relations, with Indian affairs counting as both a matter of quasi-foreign affairs and of state jurisdiction. For example, the early Trade and Intercourse Acts only demanded satisfaction from Indian tribes if an Indian went onto a State’s land and committed a crime. E.g., 1 Stat. 472–473. Under that regime, the Federal Government asserted no authority over the acts of Indians who lived on tribal lands—much less over Indians who lived off tribal lands and within a State’s sole jurisdiction.

That general jurisdictional line held until 1817, when Congress first enacted a statute to impose penalties on anyone who committed a crime against a U. S. citizen while on Indian lands. See 3 Stat. 383. But Justice McLean, riding circuit, held that statute unconstitutional in 1834—at least as it applied to Indian lands located within the territorial limits of a State. See United States v. Bailey, 24 F. Cas. 937 (No. 14,495) (CC Tenn.). As Justice McLean explained, “[t]hat the federal government is one of limited powers, is a principle so obvious as not to admit of controversy.” Id., at 938. Yet the Indian lands at issue were not located within a federal territory, and there had not been “any cession of jurisdiction by the state of Tennessee.” Id., at 939. Nor was the criminal statute in any way related to