Page:Harvard Law Review Volume 2.djvu/187

 IND/AAS AND THE LA W.

169

Nation v. Georgia, 5 Peters, i, and in the case of Worcester v. State of Georgia, 6 Peters, 536. These opinions are exhaustive ; and in the separate opinion of Mr. Justice Baldwin in the former is a very valuable risumi of the treaties and statutes concerning the Indian tribes previous to and during the confederation.

" In the first of the above cases it was held that these tribes were neither states nor nations, had only some of the attributes of sovereignty, and could not be so far recognized in that capacity as to sustain a suit in the Supreme Court of the United States. In the second case it was said that they were not subject to the jurisdiction asserted over them by the State of Georgia, which, because they were within its limits, where they had been for ages, had attempted to extend her laws and the jurisdiction of her courts over them."

This recognition, however, of Indian tribes as bodies politic, in the nature of independent states, never conceded their title to the soil, but only a permissive occupancy. From the first, the title to land in Indian occupancy has always and consistently been main- tained in the government. This fundamental doctrine has recently been clearly stated by Mr. Justice Field, in delivering the opinion of the same court in the case of Buttz v. Northern Pacific RaiU road Co. (119 U. S. 55, 66), in determining the effect of a gov- ernment grant to the railroad company of lands in the occupancy of Indians, followed by the surrender of the Indian right of occu- pancy to the government. He says : —

"At the time the act of July 2d, 1864, was passed, the title of the Indian tribes was not extinguished But that fact did not pre- vent the grant of Congress from operating to pass the fee of the land to the company. The fee was in the United States. The Ind- ians had merely a right of occupancy, a right to use the land sub- ject to the dominion and control of the government. The grant conveyed the fee subject to this right of occupancy. The rail- road company took the property with this incumbrance. The right of the Indians, it is true, could not be interfered with or de- termined except by the United States. No private individual could invade it, and the manner, time, and conditions of its extin- guishment were matters solely for the consideration of the govern- ment, and are not open to contestation in the judicial tribunals. As we said in Beecher v. Wetherby : * It is to be presumed that in