Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol I).djvu/175

 CH. XVI.] § 152. There is great reason to doubt the accuracy of this statement in a legal view. We have already seen, that the European nations, by whom America was colonized, treated the subject in a very different manner. They claimed an absolute dominion over the whole territories afterwards occupied by them, not in virtue of any conquest of, or cession by the Indian natives; but as a right acquired by discovery. Some of them, indeed, obtained a sort of confirmatory grant from the papal authority. — But as between themselves they treated the dominion and title of territory as resulting from priority of discovery; and that European power, which had first discovered the country, and set up marks of possession, was deemed to have gained the right, though it had not yet formed a regular colony there. We have also seen, that the title of the Indians was not treated as a right of propriety and dominion; but as a mere right of occupancy. As infidels, heathen, and savages, they were not allowed to possess the prerogatives belonging to absolute, sovereign and independent nations. The territory, over which they wandered, and which they used for their temporary and fugitive purposes, was, in respect to