Page:Harvard Law Review Volume 2.djvu/186

168 this period our courts constantly asserted our title to the soil by right of discovery, and extended that claim, territorially, as fast as the progress of colonization and emigration carried the advancing line of white settlement westward. (See 3 Kent's Commentaries, 378-400; Note on the Sources of American Colonial Law, 17 Abbott's New Cases, 486-491.) But at the same time the Executive dealt with such tribes under the forms with which it dealt with foreign nations, and defined their rights by treaties supposed to be subject) the rules governing treaties between equal sovereign states. The basis upon which such treaties were made is very lucidly indicated by Mr. Justice Miller, in delivering the opinion of the Supreme Court of the United States in the case of the United States v. Kagama (118 U. S. 375, 381), as follows:—

"The relation of the Indian tribes living within the borders of the United States, both before and since the Revolution, to the people of the United States has always been an anomalous one and of a complex character.

"Following the policy of the European government in the discovery of America toward the Indians who were found here, the colonies before the Revolution, and the States and the United States since, have recognized in the Indians a possessory right to the soil over which they roamed and hunted and established occasional villages. But they asserted an ultimate title in the land itself, by which the Indian tribes were forbidden to sell or transfer it to other nations or peoples without the consent of this paramount authority. When a tribe wished to dispose of its land, or any part of it, or the State or the United States wished to purchase it, a treaty with the tribe was the only mode in which this could be done. The United States recognized no right in private persons, or in other nations, to make such a purchase, by treaty or otherwise. With the Indians themselves these relations are equally difficult to define. They were, and always have been, regarded as having a semi-independent position when they preserved their tribal relations; not as States, not as nations, not as possessed of the full attributes of sovereignty, but as a separate people, with the power of regulating their internal and social relations, and thus far not brought under the laws of the Union, or of the State within whose limits they resided.

"Perhaps the best stalement of their position is found in the two opinions of this court by C. J. Marshall in the case of the cherokee