*Johnson and Graham’s Lessee v. William McIntosh.

Indian grants.

A title to lands, under grant to private individuals, made by Indian tribes or nations north-west of the river Ohio, in 1773 and 1775, cannot be recognised in the courts of the United States.1

Error to the District Court of Illinois. This was an action of ejectment for lands in the state and district of Illinois, claimed by the plaintiffs under a purchase and conveyance from the Piankeshaw Indians, and by the defendant, under a grant from the United States. It came up on a case stated, upon which there was a judgment below for the defendant. The case stated set out the following facts:

1st. That on the 23d of May 1609, James I., king of England, by his letters-patent of that date, under the great seal of England, did erect, form and establish Robert, Earl of Salisbury, and others, his associates, in the letters-patent named, and their successors, into a body corporate and politic, by the name and style of “The Treasurer and Company of Adventurers and Planters of the City of London, for the first Colony of Virginia,” with perpetual succession, and power to make, have and use a common seal; and did give, grant and confirm unto this company, and their successors, *under certain reservations and limitations in the letters patent expressed, “All the lands, countries and territories, situate, lying and being in that part of North America called Virginia, from the point of land called Cape or Point Comfort, all along the sea-coast, to the northward, two hundred miles; and from the said Cape or Point Comfort, all along the sea-coast to the southward, two hundred miles; and all that space and circuit of land lying from the sea-cast of the precinct aforesaid, up into the land throughout from the sea, west and north-west; and also all the islands lying within one hundred miles along the coast of both seas of the precinct aforesaid; with all the soil, grounds, rights, privileges and appurtenances to these territories belonging, and in the letters-patent particularly enumerated:" and did grant to this corporation, and their successors, various powers of government, in the letters-patent particularly expressed.

2d. That the place, called in these letters-patent, Cape or Point Comfort, is the place now called and known by the name of Old Point Comfort, on the Chesapeake bay and Hampton roads; and that immediately after the granting of the letters-patent, the corporation proceeded, under and by virtue of them, to take possession of parts of the territory which they describe, and to form settlements, plant a colony, and exercise the powers of government therein; which colony was called and known by the name of the colony of Virginia.

*2413d. That at the time of granting these letters-patent, and of the discovery of the continent of *North America, by the Europeans, and during the whole intermediate time, the whole of the territory in the letters-patent described, except a small district on James river, where a settlement of Europeans had previously been made, was held, occupied and possessed, in full sovereignty, by various independent tribes or nations of Indians, who were the sovereigns of their respective portions of the territory, and the absolute owners and proprietors of the soil; and who neither acknowledged nor owed any allegiance or obedience to any European sovereign or state whatever: and that in making settlements within this territory, and in all the other parts of North America, where settlements were made, under the authority of the English government, or by its subjects, the right of soil was previously obtained, by purchase or conquest, from the particular Indian tribe or nation by which the soil was claimed and held; or the consent of such tribe or nation was secured.

4th. That in the year 1624, this corporation was dissolved by due course of law, and all its powers, together with its rights of soil and jurisdiction, under the letters-patent in question, were re-vested in the crown of England; whereupon, the colony became a royal government, with the same territorial limits and extent which had been established by the letters-patent, and so continued, until it became a free and independent state; except so far as its limits and extent were altered and curtailed by the treaty of February 10th, 1763, between Great Britain and France, and by the letters-patent granted by the king of England, *for establishing the colonies of Carolina, Maryland and Pennsylvania.

5th. That some time previous to the year 1756, the French government, laying a claim to the country west of the Allegheny or Appalachian mountains, on the Ohio and Mississippi rivers, and their branches, took possession of certain parts of it, with the consent of the several tribes or nations of Indians possessing and owning them; and with the like consent, established several military posts and settlements therein, particularly at Kaskaskias, on the river Kaskaskias, and at Vincennes, on the river Wabash, within the limits of the colony of Virginia, as described and established in and by the letters-patent of May 23d, 1609; and that the government of Great Britain, after complaining of these establishments as encroachments, and remonstrating against them, at length, in the year 1756, took up arms to resist and repel them; which produced a war between those two nations, wherein the Indian tribes inhabiting and holding the countries north-west of the Ohio, and on the Mississippi, above the mouth of the Ohio, were the allies of France, and the Indians known by the name of the Six Nations, or the Iroquois, and their tributaries and allies, were the allies of Great Britain; and that on the 10th of February 1763, this war was terminated by a definitive treaty of peace between Great Britain and France, and their allies, by which it was stipulated and agreed, that the river Mississippi, from its source to the Iberville, should for ever after form the boundary between the dominions of *Great Britain and those of France, in that part of North America, and between their respective allies there.

6th. That the government of Virginia, at and before the commencement of this war, and at all times after it became a royal government, claimed and exercised jurisdiction, with the knowledge and assent of the govern*242ment of Great Britain, in and over the country north-west of the river Ohio, and east of the Mississippi, as being included within the bounds and limits described and established for that colony, by the letters-patent of May 23d, 1609; and that in the year 1749, a grant of 600,000 acres of land, within the country north-west of the Ohio, and as part of Virginia, was made by the government of Great Britain to some of its subjects, by the name and style of the Ohio Company.

7th. That at and before the commencement of the war in 1756, and during its whole continuance, and at the time of the treaty of February 10th, 1763, the Indian tribes or nations, inhabiting the country north and northwest of the Ohio, and east of the Mississippi, as far east as the river falling into the Ohio called the Great Miami, were called and known by the name of the Western Confederacy of Indians, and were the allies of France in the war, but not her subjects, never having been in any manner conquered by her, and held the country in absolute sovereignty, as independent nations, both as to the right of jurisdiction and sovereignty, and the right of soil, except a few military posts, and a small territory around each, *which they had ceded to France, and she held under them, and among which were the aforesaid posts of Kaskaskias and Vincennes; and that these Indians, after the treaty, became the allies of Great Britain, living under her protection as they had before lived under that of France, but were free and independent, owing no allegiance to any foreign power whatever, and holding their lands in absolute property; the territories of the respective tribes being separated from each other, and distinguished by certain natural marks and boundaries, to the Indians well known; and each tribe claiming and exercising separate and absolute ownership, in and over its own territory, both as to the right of sovereignty and jurisdiction, and the right of soil.

8th. That among the tribes of Indians, thus holding and inhabiting the territory north and north-west of the Ohio, east of the Mississippi, and west of the Great Miami, within the limits of Virginia, as described in the letters-patent of May 23d, 1609, were certain independent tribes or nations, called the Illinois or Kaskaskias, and the Piankeshaw or Wabash Indians; the first of which consisted of three several tribes united into one, and called the Kaskaskias, the Pewarias and the Cahoquias; that the Illinois owned, held and inhabited, as their absolute and separate property, a large tract of country, within the last-mentioned limits, and situated on the Mississippi, Illinois and Kaskaskias rivers, and on the Ohio, below the mouth of the Wabash; and the Piankeshaws, another large tract of country, within the same *limits, and as their absolute and separate property, on the Wabash and Ohio rivers; and that these Indians remained in the sole and absolute ownership and possession of the country in question, until the sales made by them, in the manner hereinafter set forth.

9th. That on the termination of the war between Great Britain and France, the Illinois Indians, by the name of the Kaskaskias tribes of Indians, as fully representing all the Illinois tribes then remaining, made a treaty of peace with Great Britain, and a treaty of peace, limits and amity, under her mediation, with the Six Nations, or Iroquois, and their allies, then known and distinguished by the name of the Northern Confederacy of Indians; the Illinois being a part of the confederacy then known and distinguished by *243the name of the Southern Confederacy, and sometimes by that of the Western Confederacy.

10th. That on the 7th of October 1763, the king of Great Britain made and published a proclamation, for the better regulation of the countries ceded to Great Britain by that treaty, which proclamation is referred to, and made part of the case.

11th. That from time immemorial, and always up to the present time, all the Indian tribes, or nations of North America, and especially the Illinois and Piankeshaws, and other tribes holding, possessing and inhabiting the said countries north and north-west of the Ohio, east of the Mississippi, and west of the Great Miami, held their respective lands and territories, each in common, the individuals *of each tribe or nation holding the lands and territories of such tribe, in common with each other, and there being among them no separate property in the soil; and that their sole method of selling, granting and conveying their lands, whether to governments or individuals, always has been, from time immemorial, and now is, for certain chiefs of the tribe selling, to represent the whole tribe, in every part of the transaction; to make the contract, and execute the deed, on behalf of the whole tribe; to receive for it the consideration, whether in money or commodities, or both; and finally, to divide such consideration among the individuals of the tribe: and that the authority of the chiefs, so acting for the whole tribe, is attested by the presence and assent of the individuals composing the tribe, or some of them, and by the receipt by the individuals composing the tribe, of their respective shares of the price, and in no other manner.

12th. That on the 5th of July 1773, certain chiefs of the Illinois Indians, then jointly representing, acting for, and being duly authorized by that tribe, in the manner explained above, did, by their deed-poll, duly executed and delivered, and bearing date on that day, at the post of Kaskaskias, then being a British military post, and at a public counsel there held by them, for and on behalf of the said Illinois nation of Indians, with William Murray, of the Illinois country, merchant, acting for himself and for Moses Franks and Jacob Franks, of London, in Great Britain, David Franks, John Inglis, Bernard Gratz, Michael *Gratz, Alexander Ross, David Sproat and James Milligan, all of Philadelphia, in the province of Pennsylvania; Moses Franks, Andrew Hamilton, William Hamilton and Edmund Milne, of the same place; Joseph Simons, otherwise called Joseph Simon, and Levi Andrew Levi, of the town of Lancaster, in Pennsylvania; Thomas Minshall, of York county, in the same province; Robert Callender and William Thompson, of Cumberland county, in the same province; John Campbell, of Pittsburgh, in the same province; and George Castles and James Ramsay, of the Illinois country; and for a good and valuable consideration in the said deed stated, grant, bargain, sell, alien, lease, enfeoff and confirm to the said William Murray, Moses Franks, Jacob Franks, David Franks, John Inglis, Bernard Gratz, Michael Gratz, Alexander Ross, David Sproat, James Milligan, Andrew Hamilton, William Hamilton, Edmund Milne, Joseph Simons, otherwise called Joseph Simon, Levi Andrew Levi, Thomas Minshall, Robert Callender, William Thompson, John Campbell, George Castles and James Ramsay, their heirs and assigns for ever, in severalty, or to George the Third, then King of Great Britain *244and Ireland, his heirs and successors, for the use, benefit and behoof of the grantees, their heirs and assigns, in severalty, by whichever of those tenures they might most legally hold, all those two several tracts or parcels of land, situated, lying and being within the limits of Virginia, on the east of the Mississippi, north-west of the Ohio, and west of the Great Miami, and thus  butted *and bounded:

Beginning, for one of the said tracts, on the east side of the Mississippi, at the mouth of the Heron creek, called by the French the river of Mary, being about a league below the mouth of the Kaskaskias river, and running thence a northward of east course, in a direct line, back to the Hilly plains, about eight leagues more or less; thence the same course, in a direct line to the Crab Tree plains, about seventeen leagues more or less; thence the same course, in a direct line, to a remarkable place known by the name of the Big Buffalo Hoofs, about seventeen leagues more or less; thence the same course, in a direct line to the Salt Lick creek, about seven leagues more or less; then crossing the Salt Lick creek, about one league below the ancient Shawanese town, in an easterly, or a little to the north of east, course, in a direct line, to the river Ohio, about four leagues more or less; then down the Ohio, by its several courses, until it empties into the Mississippi, about thirty-five leagues more or less; and then up the Mississippi, by its several courses, to the place of the beginning, about thirty-three leagues more or less:

And beginning, for the other tract, on the Mississippi, at a point directly opposite to the mouth of Missouri, and running up the Mississippi, by its several courses, to the mouth of the Illinois, about six leagues more or less; and thence up the Illinois, by its several courses, to Chicagou or Garlic creek, about ninety leagues, more or less; thence nearly a northerly course, in a direct line, to a certain remarkable place, being the ground on which a *battle was fought, about forty or fifty years before that time, between the Pewaria and Renard Indians, about fifty leagues more or less; thence by the same course, in a direct line, to two remarkable hills, close together, in the middle of a large prairie or plain, about fourteen leagues more or less; thence a north of east course, in a direct line, to a remarkable spring, known by the Indians by the name of “Foggy Spring,” about fourteen leagues more or less; thence the same course, in a direct line, to a great mountain, to the north-west of the White Buffalo plain, about fifteen leagues more or less; and thence nearly a south-west course to the place of beginning, about forty leagues more or less:

To have and to hold the said two tracts of land, with all and singular their appurtenances, to the grantees, their heirs and assigns, for ever, in severalty, or to the king, his heirs and successors, to and for the use, benefit or behoof of the grantees, their heirs and assigns, for ever, in severalty: as will more fully appear by the said deed-poll, duly executed under the hands and seals of the grantors, and duly recorded at Kaskaskias, on the 2d of September 1773, in the office of Vicerault Lemerance, a notary-public, duly appointed and authorized. This deed, with the several certificates annexed to or indorsed on it, was set out at length in the case.

13th. That the consideration in this deed expressed, was of the value of $24,000, current money of the United States, and upwards, and was paid and delivered, at the time of the execution of the deed, by William Murray, one *245*of the grantees, in behalf of himself and the other grantees, to the Illinois Indians, who freely accepted it, and divided it among themselves; that the conferences in which the sale of these lands was agreed on and made, and in which it was agreed that the deed should be executed, were publicly held, for the space of a month, at the post of Kaskaskias, and were attended by many individuals of all the tribes of Illinois Indians, besides the chiefs named as grantors in the deed; that the whole transaction was open, public and fair, and the deed fully explained to the grantors and other Indians, by the sworn interpreters of the government, and fully understood by the grantors and other Indians, before it was executed; that the several witnesses to the deed, and the grantees named in it, were such persons, and of such quality and stations, respectively, as they are described to be in the deed, the attestation, and the other indorsements on it; that the grantees did duly authorize William Murray to act for and represent them, in the purchase of the lands, and the acceptance of the deed; and that the two tracts or parcels of land which it describes, and purports to grant, were then parts of the lands held, possessed and inhabited by the Illinois Indians, from time immemorial, in the manner already stated.

14th. That all the persons named as grantees in this deed, were, at the time of its execution, and long before, subjects of the crown of Great Britain, and residents of the several places named in the deed as their places of residence; and that *they entered into the land, under and by virtue of the deed, and became seised as the law requires.

15th. That on the 18th of October 1775, Tabac, and certain other Indians, all being chiefs of the Piankeshaws, and jointly representing, acting for, and duly authorized by that nation, in the manner stated above, did, by their deed-poll, duly executed, and bearing date on the day last mentioned, at the post of Vincennes, otherwise called post St. Vincent, then being a British military post, and at a public council there held by them, for and on behalf of the Piankeshaw Indians, with Louis Viviat, of the Illinois country, acting for himself, and for the Right Honorable John, Earl of Dunmore, then governor of Virginia, the Honorable John Murray, son of the said Earl, Moses Franks and Jacob Franks, of London, in Great Britain, Thomas Johnson, jr., and John Davidson, both of Annapolis, in Maryland, William Russel, Matthew Ridley, Robert Christie, sen., and Robert Christie, jr., of Baltimore town, in the same province, Peter Campbell, of Piscataway, in the same province, William Geddes, of Newtown Chester, in the same province, collector of his majesty’s customs, David Franks and Moses Franks, both of Philadelphia, in Pennsylvania, William Murray and Daniel Murray, of the Illinois country, Nicholas St. Martin and Joseph Page, of the same place, Francis Perthuis, late of Quebec, in Canada, but then of post St. Vincent, and for good and valuable considerations, in the deed-poll mentioned and enumerated, grant, bargain, sell, alien, enfeoff, release, ratify and confirm to the said Louis Viviat, and the other persons last mentioned, their heirs and assigns, equally to be divided, or to George III., then King of Great Britain and Ireland, his heirs and successors, for the use, benefit and behoof of all the above-mentioned grantees, their heirs and assigns, in severalty, by which ever of those tenures they might most legally hold, all those two several tracts of land, in the deed particularly described, situate, lying and being north-west of the Ohio, east of the Mis*246sissippi, and west of the Great Miami, within the limits of Virginia, and on both sides of the Ouabache, otherwise called the Wabash; which two tracts of land are contained respectively within the following metes and bounds, courses and distances, that is to say:

Beginning, for one of the said tracts, at the mouth of a rivulet called Riviere du Chat, or Cat river, where it empties itself into the Ouabache or Wabash, by its several courses, to a place called Point Coupee, about twelve leagues above post St. Vincent, being forty leagues, or thereabouts, in length, on the said river Ouabache, from the place of beginning, with forty leagues in width or breadth, on the east side, and thirty leagues in breadth or width, on the west side of that river, to be continued along from the place of beginning to Point Coupee. And beginning, for the other tract, at the mouth of White river, where it empties into the Ouabache, about twelve leagues below post St. Vincent, and running thence down the Ouabache, by its several courses, until it empties into the Ohio; being from White river to the Ohio, about fifty-three leagues in length, more or less, with forty *leagues in width or breadth on the east side, and thirty in width or breadth, on the west side of the Ouabache, to be continued along from the White river to the Ohio; with all the rights, liberties, privileges, hereditaments and appurtenances, to the said tract belonging:

To have and to hold to the grantees, their heirs and assigns, for ever, in severalty, or to the king, his heirs and successors, for the use, benefit and behoof of the grantees, their heirs and assigns; as will more fully appear by the deed itself, duly executed under the hands and seals of the grantors, and duly recorded at Kaskaskias, on the 5th of December 1775, in the office of Louis Bomer, a notary-public, duly appointed and authorized. This deed, with the several certificates annexed to or indorsed on it, was set out at length.

16th. That the consideration in this deed expressed, was of the value of $31,000, current money of the United States, and upwards, and was paid and delivered, at the time of the execution of the deed, by the grantee, Lewis Viviat, in behalf of himself and the other grantees, to the Piankeshaw Indians, who freely accepted it, and divided it among themselves; that the conferences in which the sale of these two tracts of land was agreed on and made, and in which it was agreed, that the deed should be executed, were publicly held for the space of a month, at the post of Vincennes, or post St. Vincent, and were attended by many individuals of the Piankeshaw nation of Indians, besides the chiefs named as grantors in the deed; that the whole transaction was open, public and fair, and the deed fully explained to the grantors and other Indians, by skillful interpreters, and fully understood by them, before it was executed; that it was executed in the presence of the several witnesses by whom it purports to have been attested, and was attested by them; that the grantees were all subjects of the crown of Great Britain, and were of such quality, station and residence, respectively, as they are described in the deed to be; that the grantees did duly authorize Lewis Viviat to act for, and represent them, in the purchase of these two tracts of land, and in the acceptance of the deed; that these tracts of land were then part of the lands held, possessed and inhabited by the Piankeshaw Indians, from time immemorial, as is stated above; and that the several grantees under this deed entered into the land which it purports to grant, and become seised as the law requires.

*24717th. That on the 6th of May 1776, the colony of Virginia threw off its dependence on the crown and government of Great Britain, and declared itself an independent state and government, with the limits prescribed and established by the letters-patent of May 23d, 1609, as curtailed and restricted by the letters-patent establishing the colonies of Pennsylvania, Maryland and Carolina, and by the treaty of February 10th, 1763, between Great Britain and France; which limits, so curtailed and restricted, the state of Virginia, by its constitution and form of government, declared should be and remain the limits of the state, and should bound its western and northwestern extent.

*18th. That on the 5th of October 1778, the general assembly of Virginia, having taken by arms the posts of Kaskaskias and Vincennes, or St. Vincent, from the British forces, by whom they were then held, and driven those forces from the country north-west of the Ohio, east of the Mississippi, and west of the Great Miami, did, by an act of assembly of that date, entitled, “an act for establishing the county of Illinois, and for the more effectual protection and defence thereof,” erect that country, with certain other portions of territory within the limits of the state, and northwest of the Ohio, into a county, by the name of the county of Illinois.

19th. That on the 20th of December 1783, the state of Virginia, by an act of assembly of that date, authorized their delegates in the congress of the United States, or such of them, to the number of three at least, as should be assembled in congress, on behalf of the state, and by proper deeds or instruments in writing, under their hands and seals, to convey, transfer, assign and make over to the United States, in congress assembled, for the benefit of the said states, all right, title and claim, as well of soil as jurisdiction, which Virginia had to the territory of tract of country within her limits, as defined and prescribed by the letters-patent of May 23d, 1609, and lying to the north-west of Ohio; subject to certain limitations and conditions in the act prescribed and specified; and that on the 1st of March 1784, Thomas Jefferson, Samuel Hardy, Arthur Lee and James Monroe, then being four of the delegates *of Virginia to the congress of the United States, did, by their deed-poll, under their hands and seals, in pursuance and execution of the authority to them given by this act of assembly, convey, transfer, assign and make over to the United States, in congress assembled, for the benefit of the said states, all right, title and claim, as well of soil as jurisdiction, which that state had to the territory north-west of the Ohio, with the reservations, limitations and conditions in the act of assembly prescribed; which cession the United States accepted.

20th. That on the 20th day of July, in the year of our Lord 1818, the United States, by their officers duly authorized for that purpose, did sell, grant and convey to the defendant in this action, William McIntosh, all those several tracts or parcels of land, containing 11,560 acres, and butted, bounded and described, as will fully appear in and by the patent for the said lands, duly executed, which was set out at length.

21st. That the lands described and granted in and by this patent, are situated within the state of Illinois, and are contained within the lines of the last, or second, of the two tracts, described and purporting to be granted and conveyed to Louis Viviat and others, by the deed of October 18th, 1775 and that William McIntosh, the defendant, entered upon these lands, *248under and by virtue of his patent, and became possessed thereof, before the institution of this suit.

22d. That Thomas Johnson, one of the grantees, *in and under the deed of October 18th, 1775, departed this life, on or about the 1st day of October 1819, seised of all his undivided part or share of and in the two several tracts of land, described and purporting to be granted and conveyed to him and others by that deed, having first duly made and published his last will and testament in writing, attested by three credible witnesses, which he left in full force, and by which he devised all his undivided share and part of those two tracts of land, to his son, Joshua Johnson, and his heirs, and his grandson, Thomas J. Graham, and his heirs, and the lessors of the plaintiff in this action, as tenants in common.

23d. That Joshua Johnson and Thomas J. Graham, the devisees, entered into the two tracts of land last above mentioned, under and by virtue of the will, and became thereof seised as the law requires. That Thomas Johnson, the grantee and devisor, during his whole life, and at the time of his death, was an inhabitant and citizen of the state of Maryland; that Joshua Johnson and Thomas J. Graham, the lessors of the plaintiff, now are, and always have been citizens of the same state; that the defendant, William McIntosh, now is, and at and before the time of bringing this action was, a citizen of the state of Illinois; and that the matter in dispute in this action is of the the value of $2000, current money of the United States, and upwards.

24th. And that neither William Murray, nor any other of the grantees under the deed of July the 5th, 1773, nor Louis Viviat, nor any other of the *grantees under the deed of October the 8th, 1775, nor any person for them, or any of them, ever obtained, or had the actual possession, under and by virtue of those deeds, or either of them, of any part of the lands in them, or either of them, described and purporting to be granted; but were prevented by the war of the American revolution, which soon after commenced, and by the disputes and troubles which preceded it, from obtaining such possession; and that since the termination of the war, and before it, they have repeatedly, and at various times, from the year 1781, till the year 1816, petitioned the congress of the United States to acknowledge and confirm their title to those lands, under the purchases and deeds in question, but without success.

Judgment being given for the defendant on the case stated, the plaintiffs brought this writ of error.

February 17th-19th.

The cause was argued by Harper and Webster, for the plaintiffs, and by Winder and Murray, for the defendants.

But as the arguments are so fully stated in the opinion of the court, it is deemed unnecessary to give anything more than the following summary.

On the part of the plaintiffs, it was contended: 1. That upon the facts stated in the case, the Piankeshaw Indians were the owners of the lands in dispute, at the time of executing the deed of October 10th, 1775, and had power to sell. But as the United States had purchased the same lands of the same Indians, both parties claim from the same source. It would seem, therefore, to be unnecessary, and merely speculative, to discuss *the question respecting the sort of title or ownership, which may be *249thought to belong to savage tribes, in the lands on which they live. Probably, however, their title by occupancy is to be respected, as much as that of an individual, obtained by the same right, in a civilized state. The circumstance, that the members of the society held in common, did not affect the strength of their title by occupancy. Grotius, de Jure Belli ac Pacis, lib. 2, c. 2, § 4; lib. 2, c. 24, § 9; Puffend. lib. 4, c. 5, § 1, 3. In the memorial or manifesto of the British government, in 1755, a right of soil in the Indians is admitted. It is also admitted in the treaties of Utrecht and Aix-la-Chapelle. The same opinion has been expressed by this court, Fletcher v. Peck, 6 Cranch 87; and by the supreme court of New York, Jackson v. Wood, 7 Johns. 296. In short, all, or nearly all, the lands in the United States, is holden under purchases from the Indian nations; and the only question in this case must be, whether it be competent to individuals to make such purchases, or whether that be the exclusive prerogative of government.

2. That the British king’s proclamation, of October 7th, 1763, could not affect this right of the Indians to sell; because they were not British subjects, nor in any manner bound by the authority of the British government, legislative or executive. And because, even admitting them to be British subjects, absolutely, or sub modo, they were still proprietors of the soil, and could not be divested of their rights of property, or any of its *incidents, by a mere act of the executive government, such as this proclamation.

3. That the proclamation of 1763 could not restrain the purchasers under these deeds from purchasing; because the lands lay within the limits of the colony of Virginia, of which, or of some other British colony, the purchasers, all being British subjects, were inhabitants. And because the king had not, within the limits of that colonial government, or any other, any power of prerogative legislation; which is confined to countries newly conquered, and remaining in the military possession of the monarch, as supreme chief of the military forces of the nation. The present claim has long been known to the government of the United States, and is mentioned in the Collection of Land Laws, published under public authority. The compiler of those laws supposes this title void, by virtue of the proclamation of 1763. But we have the positive authority of a solemn determination of the court of king’s bench, on this very proclamation, in the celebrated Grenada Case, for asserting that it could have no such effect. ( Campbell v. Hall, Cowp. 204.) This country being a new conquest, and a military possession, the crown might exercise legislative powers, until a local legislature was established. But the establishment of a government, establishes a system of laws, and excludes the power of legislating by proclamation. The proclamation could not have the force of law, within the chartered limits of Virginia. A proclamation, *that no person should purchase land in England or Canada, would be clearly void.

4. That the act of assembly of Virginia, passed in May 1779,(a) cannot *250affect the right of the plaintiffs, and others claiming under these deeds; because, on general principles, and by the constitution of Virginia, the legislature was not competent to take away private, vested rights, or appropriate private property to public use, under the circumstances of this case. And because the act is not *contained in the revisal of 1794, and must, therefore, be considered as repealed; and the repeal re-instates all rights that might have been affected by the act, although the territory, in which the lands in question lie, was ceded to the United States, before the repeal. The act of 1779 was passed, after the sales were made, and it cannot affect titles previously obtained. At the time of the purchases, there was no law of Virginia rendering such purchases void. If, therefore, the purchases were not affected by the proclamation of 1763, nor by the act of 1779, the question of their validity comes to the general inquiry, whether individuals, in Virginia, at the time of this purchase, could legally obtain Indian titles. In New England, titles have certainly been obtained in this mode. But whatever may be said on the more general question, and in reference to other colonies or states, the fact being, that in Virginia, there was no statute existing at the time, against such purchases, mere general considerations would not apply. It may be true, that in almost all the colonies, individual purchases from the Indians were illegal; but they were rendered so by express provisions of the local law. In Virginia, also, it may be true, that such purchases have generally been prohibited; but at the time the purchases now in question were made, there was no prohibitory law in existence. The old colonial laws on the subject had all been repealed. The act of 1779 was a private act, so far as respects this case. It is the same as if it had enacted, that these particular deeds were void. Such acts *bind only those who are parties to them, who submit their case to the legislature.

On the part of the defendants, it was insisted, that the uniform understanding and practice of European nations, and the settled law, as laid down by the tribunals of civilized states, denied the right of the Indians to be considered as independent communities, having a permanent property in the soil, capable of alienation to private individuals. They remained in a state of nature, and have never been admitted into the general society of nations. Penn v. Lord Baltimore, 1 Ves. 445; 2 Ruth. Inst. 29; Locke, Govern*251ment, B. 2, c. 7, § 87-9; c. 12, § 143; c. 9, § 123-30; Jefferson’s Notes 126; Colden’s Hist. Five Nations 2-16; Smith’s Hist. New York 35-41; Montesquieu, Esprit des Loix, liv. 18, c. 11, 12, 13; Smith’s Wealth of Nations, B. 5, c. 1. All the treaties and negotiations between the civilized powers of Europe and of this continent, from the treaty of Utrecht, in 1713, to that of Ghent, in 1814, have uniformly disregarded their supposed right to the territory included within the jurisdictional limits of those powers. 5 Annual Reg. 56, 233; 7 Niles’ Reg. 229. Not only has the practice of all civilized nations been in conformity with this doctrine, but the whole theory of their titles to lands in America, rests upon the hypothesis, that the Indians had no right of soil, as sovereign, independent states. Discovery is the foundation of title, in European nations, and this overlooks all proprietary rights in the natives. Marten’s Law of Nations 67, 60; Vattel, Droit des Gens, lib. 2, c. 7, § 83; lib. 1, c. 18, § 204-5. The sovereignty and *eminent domain thus acquired, necessarily precludes the idea of any other sovereignty existing within the same limits. The subjects of the discovering nation must necessarily be bound by the declared sense of their own government, as to the extent of this sovereignty, and the domain acquired with it. Even if it should be admitted, that the Indians were originally an independent people, they have ceased to be so. A nation that has passed under the dominion of another, is no longer a sovereign state. Vattel, lib. 1, c. 1, § 11. The same treaties and negotiations, before referred to, showed their dependent condition. Or, if it be admitted, that they are now independent and foreign states, the title of the plaintiffs would still be invalid: as grantees from the Indians, they must take according to their laws of property, and as Indians subjects. The law of every dominion affects all persons and property situate within it (Cowp. 204); and the Indians never had any idea of individual property in lands. It cannot be said, that the lands conveyed were disjoined from their dominion; because the grantees could not take the sovereignty and eminent domain to themselves.

Such then, being the nature of the Indian title to lands, the extent of their right of alienation must depend upon the laws of the dominion under which they live. They are subject to the sovereignty of the United States. The subjection proceeds from their residence within our territory *and jurisdiction. It is unnecessary to show that they are not citizens, in the ordinary sense of that term, since they are destitute of the most essential rights which belong to that character. They are of that class who are said by jurists not to be citizens, but perpetual inhabitants, with diminutive rights. Vattel, lib. 1, c. 19, § 213. The statutes of Virginia, and of all the other colonies, and of the United States, treat them as an inferior race of people, without the privileges of citizens, and under the perpetual protection and pupilage of the government. The act of Virginia of 1662, forbade purchases from the Indians, and it does not appear that it was ever repealed. The act of 1779 is rather to be regarded as a declaratory act, founded upon what has always been regarded as the settled law. These statutes seem to define sufficiently the nature of the Indian title to lands; a mere right of usufruct and habitation, without power of alienation. By the law of nature, they had not acquired a fixed property, capable of being transferred. The measure of property acquired by occupancy is determined, according to the law of *252nature, by the extent of men’s wants, and their capacity of using it to supply them. Grotius, lib. 2, c. 11; Barbeyr.; Puffend. lib. 4, c. 4, § 2, 4; 2 Bl. Com. 2; Puffend. lib. 4, c. 6, § 3; Locke on Government, B. 2, c. 5, § 26, 34-40. It is a violation of the rights of others, to exclude them from the use of what we do not want, and they have an occasion for. Upon this principle, the North American Indians could have acquired no proprietary interest in the vast tracts *of territory which they wandered over; and their right to the lands on which they hunted, could not be considered as superior to that which is acquired to the sea by fishing in it. The use in the one case, as well as the other, is not exclusive. Locke, c. 5, § 36-48; Grotius, lib. 2, c. 11, § 2; Montesq. tom. 2, p. 63; Chalmers’ Polit. Annals, 5; 6 Cranch 87. According to every theory of property, the Indians had no individual rights to land; nor had they any, collectively, or in their national capacity; for the lands occupied by each tribe were not used by them in such a manner as to prevent their being appropriated by a people of cultivators. All the proprietary rights of civilized nations on this continent are founded on this principle. The right derived from discovery and conquest can rest on other basis; and all existing titles depend on the fundamental title of the crown by discovery. The title of the crown (as representing the nation) passed to the colonists by charters, which were absolute grants of the soil; and it was a first principle in colonial law, that all titles must be derived from the crown. It is true, that, in some cases, purchases were made by the colonies from the Indians; but this was merely a measure of policy to prevent hostilities; and William Penn’s purchase, which was the most remarkable transaction of this kind, was not deemed to add to the strength of his title. Penn v. Lord Baltimore, 1 Ves. 444; Chalmers’ Polit. Annals 644; Sullivan’s Land Tit. c. 2 ; Smith’s Hist. N. Y. 145, 184. In most of the colonies, the *doctrine was received, that all titles to land must be derived exclusively from the crown, upon the principle that the settlers carried with them, not only all the rights, but all the duties of Englishmen; and particularly the laws of property, so far as they are suitable to their new condition. 1 Bl. Com. 107; 2 P. Wms. 75; 1 Salk. 411, 616. In New England alone, some lands have been held under Indian deeds. But this was an anomaly arising from peculiar local and political causes. Sulliv. Land Tit. 45.

As to the effect of the proclamation of 1763: if the Indians are to be regarded as independent sovereign states, then, by the treaty of peace, they became subject to the prerogative legislation of the crown, as a conquered people, in a territory acquired, jure belli, and ceded at the peace. Cowp. 204; 7 Co. 17 b; 2 Meriv. 143. If, on the contrary, this country be regarded as a royal colony, then the crown had a direct power of legislation; or, at least, the power of prescribing the limits within which grants of land and settlements should be made within the colony. The same practice always prevailed, under the proprietary governments, and has been followed by the government of the United States.

March 10th, 1823.

1

s. p. Mitchel v. United States, 9 Pet. 712; Clark v. Smith, 13 Id. 195; Lattimer v. Poteet, 14 Id. 4; United States v. Rillieux’s Heirs, 14 How. 189; Sparkman v. Porter, 1 Paine 457. And see Smith v. Stevens, 10 Wall. 321; United States v. Cook, 19 Id. 591; Beecher v. Wetherby, 95 U. S. 517, 525.

(a)

This statute is as follows: “An act for declaring and asserting the rights of this commonwealth, concerning purchasing lands from Indian natives. To remove and prevent all doubt concerning purchases of lands from the Indian natives, be it declared by the general assembly, that this commonwealth hath the exclusive right of *250pre-emption from the Indians, of all the lands within the limits of its own chartered territory, as described by the act and constitution of government, in the year 1776. That no person or persons whatsoever, have, or ever had, a right to purchase any lands within the same, from any Indian nation, except only persons duly authorized to make such purchases on the public account, formerly for the use and benefit of the colony, and lately of the commonwealth, and that such exclusive right or pre-emption will and ought to be maintained by this commonwealth, to the utmost of its power. And be it further declared and enacted, that every purchase of lands heretofore made, by, or on behalf of, the crown of England or Great Britain, from any Indian nation or nations, within the before-mentioned limits, doth and ought to inure for ever, to and for the use and benefit of this commonwealth, and to or for no other use or purpose whatsoever; and that all sales and deeds which have been, or shall be, made by any Indian or Indians, or by any Indian nation or nations, for lands within the said limits, to or for the separate use of any person or persons whatsoever, shall be, and the same are, hereby declared utterly void and of no effect.”

Marshall, Ch. J.,

delivered the opinion of the court. — The plaintiffs in this cause claim the land in their declaration mentioned, under two grants, purporting to be made, the first in 1773, and the last in 1775, by the chiefs of certain *Indian tribes, constituting *253the Illinois and the Piankeshaw nations; and the question is, whether this title can be recognised in the courts of the United States? The facts, as stated in the case agreed, show the authority of the chiefs who executed this conveyance, so far as it could be given by their own people; and likewise show, that the particular tribes for whom these chiefs acted were in rightful possession of the land they sold. The inquiry, therefore, is, in a great measure, confined to the power of Indians to give, and of private individuals to receive, a title, which can be sustained in the courts of this country.

As the right of society to prescribe those rules by which property may be acquired and preserved is not, and cannot, be drawn into question; as the title to lands, especially, is, and must be, admitted, to depend entirely on the law of the nation in which they lie; it will be necessary, in pursuing this inquiry, to examine, not simply those principles of abstract justice, which the Creator of all things has impressed on the mind of his creature man, and which are admitted to regulate, in a great degree, the rights of civilized nations, whose perfect independence is acknowledged; but those principles also which our own government has adopted in the particular case, and given us as the rule for our decision.

On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an *ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency. The potentates of the old world found no difficulty in convincing themselves, that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity, in exchange for unlimited independence. But as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle, which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated, as between themselves. This principle was, that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession. The exclusion of all other Europeans, necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and establishing settlements upon it. It was a right with which no Europeans could interfere. It was a right which all asserted for themselves, and to the assertion of which, by others, all assented. Those relations which were to exist between the discoverer and the natives, were to be regulated by themselves. The rights thus acquired being exclusive, no other power could interpose between them.

*In the establishment of these relations, the rights of the original inhabitants were, in no instance, entirely disregarded; but were, necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil, at their own will, to whomsoever they pleased, was denied by the original fundamental principle, *254that discovery gave exclusive title to those who made it. While the different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives. These grants have been understood by all, to convey a title to the grantees, subject only to the Indian right of occupancy.

The history of America, from its discovery to the present day, proves, we think, the universal recognition of these principles. Spain did not rest her title solely on the grant of the Pope. Her discussions respecting boundary, with France, with Great Britain, and with the United States, all show that she placed it on the rights given by discovery. Portugal sustained her claim to the Brazils by the same title. France, also, founded her title to the vast territories she claimed in America on discovery. However *conciliatory her conduct to the natives may have been, she still asserted her right of dominion over a great extent of country, not actually settled by Frenchmen, and her exclusive right to acquire and dispose of the soil which remained in the occupation of Indians. Her monarch claimed all Canada and Acadie, as colonies of France, at a time when the French population was very inconsiderable, and the Indians occupied almost the whole country. He also claimed Louisiana, comprehending the immense territories watered by the Mississippi, and the rivers which empty into it, by the title of discovery. The letters-patent granted to the Sieur Demonts, in 1603, constitute him Lieutenant-General, and the representative of the king, in Acadie, which is described as stretching from the 40th to the 46th degree of north latitude; with authority to extend the power of the French over that country, and its inhabitants, to give laws to the people, to treat with the natives, and enforce the observance of treaties, and to parcel out, and give title to lands, according to his own judgment. The States of Holland also made acquisitions in America, and sustained their right on the common principle adopted by all Europe. They allege, as we are told by Smith, in his History of New York, that Henry Hudson, who sailed, as they say, under the orders of their East India Company, discovered the country from the Delaware to the Hudson, up which he sailed to the 43d degree of north latitude; and this country they claimed under the title acquired by this voyage. *Their first object was commercial, as appears by a grant made to a company of merchants in 1614; but in 1621, the States-General made, as we are told by Mr. Smith, a grant of the country to the West India Company, by the name of New Netherlands. The claim of the Dutch was always contested by the English; not because they questioned the title given by discovery, but because they insisted on being themselves the rightful claimants under that title. Their pretensions were finally decided by the sword.

No one of the powers of Europe gave its full assent to this principle, more unequivocally than England. The documents upon this subject are ample and complete. So early as the year 1496, her monarch granted a commission to the Cabots, to discover countries then unknown to Christian people, and to take possession of them in the name of the king of England. Two years afterwards, Cabot proceeded on this voyage, and discovered the continent of North America, along which he sailed as far south as Virginia. *255To this discovery, the English trace their title. In this first effort made by the English government to acquire territory on this continent, we perceive a complete recognition of the principle which has been mentioned. The right of discovery given by this commission, is confined to countries “ then unknown to all Christian people;" and of these countries, Cabot was empowered to take possession in the name of the king of England. Thus asserting a right to take possession, *notwithstanding the occupancy of the natives, who were heathens, and, at the same time, admitting the prior title of any Christian people who may have made a previous discovery. The same principle continued to be recognised. The charter granted to Sir Humphrey Gilbert, in 1578, authorizes him to discover and take possession of such remote, heathen and barbarous lands, as were not actually possessed by any Christian prince or people. This charter was afterwards renewed to Sir Walter Raleigh, in nearly the same terms.

By the charter of 1606, under which the first permanent English settlement on this continent was made, James I. granted to Sir Thomas Gates and others, those territories in America, lying on the sea-coast, between the 34th and 45th degrees of north latitude, and which either belonged to that monarch, or were not then possessed by any other Christian prince or people. The grantees were divided into two companies, at their own request. The first, or southern colony, was directed to settle between the 34th and 41st degrees of north latitude; and the second, or northern colony, between the 38th and 45th degrees. In 1609, after some expensive and not very successful attempts at settlement had been made, a new and more enlarged charter was given by the crown to the first colony, in which the king granted to the “Treasurer and Company of Adventurers of the city of London for the first colony in Virginia,” in absolute property, the lands extending along the sea-coast four hundred miles, and *into the land throughout from sea to sea. This charter, which is a part of the special verdict in this cause, was annulled, so far as respected the rights of the company, by the judgment of the court of king’s bench, on a writ of quo warranto; but the whole effect allowed to this judgment was, to revest in the crown the powers of government, and the title to the lands within its limits.

At the solicitation of those who held under the grant to the second or northern colony, a new and more enlarged charter was granted to the Duke of Lenox and others, in 1620, who were denominated the Plymouth Company, conveying to them in absolute property all the lands between the 40th and 48th degrees of north latitude. Under this patent, New England has been in a great measure settled. The company conveyed to Henry Rosewell and others, in 1627, that territory which is now Massachusetts; and in 1628, a charter of incorporation, comprehending the powers of government, was granted to the purchasers. Great part of New England was granted by this company, which, at length, divided their remaining lands among themselves; and in 1635, surrendered their charter to the crown. A patent was granted to Gorges, for Maine, which was allotted to him in the division of property. All the grants made by the Plymouth Company, so far as we can learn, have been respected.

In pursuance of the same principle, the king, in 1664, granted to the Duke of York the country of New England, as far south as the Delaware *bay. His royal highness transferred New Jersey to Lord *256Berkeley and Sir George Carteret. In 1663, the crown granted to Lord Clarendon and others, the country lying between the 36th degree of north latitude and the river St. Mathes; and in 1666, the proprietors obtained from the crown a new charter, granting to them that province in the king’s dominions in North America, which lies from 36 degrees 30 minutes north latitude to the 29th degree, and from the Atlantic ocean to the south sea.

Thus has our whole country been granted by the crown, while in the occupation of the Indians. These grants purport to convey the soil as well as the right of dominion to the grantees. In those governments which were denominated royal, where the right to the soil was not vested in individuals, but remained in the crown, or was vested in the colonial government, the king claimed and exercised the light of granting lands, and of dismembering the government, at his will. The grants made out of the two original colonies, after the resumption of their charters by the crown, are examples of this. The governments of New England, New York, New Jersey, Pennsylvania, Maryland, and a part of Carolina, were thus created. In all of them, the soil, at the time the grants were made, was occupied by the Indians. Yet almost every title within those governments is dependent on these grants. In some instances, the soil was conveyed by the crown, unaccompanied by the powers of government, as in the case of the northern neck of Virginia. It has never *been objected to this, nor to any other similar grant, that the title as well as possession was in the Indians when it was made, and that it passed nothing on that account.

These various patents cannot be considered as nullities; nor can they be limited to a mere grant of the powers of government. A charter intended to convey political power only, would never contain words expressly granting the land, the soil and the waters. Some of them purport to convey the soil alone; and in those cases in which the powers of government, as well as the soil, are conveyed to individuals, the crown has always acknowledged itself to be bound by the grant. Though the power to dismember regal governments was asserted and exercised, the power to dismember proprietary governments was not claimed; and in some instances, even after the powers of government were revested in the crown, the title of the proprietors to the soil was respected. Charles II. was extremely anxious to acquire the property of Maine, but the grantees sold it to Massachusetts, and he did not venture to contest the right of that colony to the soil. The Carolinas were originally proprietary governments. In 1721, a revolution was effected by the people, who shook off their obedience to the proprietors, and declared their dependence immediately on the crown. The king, however, purchased the title of those who were disposed to sell. One of them, Lord Carteret, surrendered his interest in the government, but retained his title to the soil. That *title was respected until the revolution, when it was forfeited by the laws of war.

Further proofs of the extent to which this principle has been recognised, will be found in the history of the wars, negotiations and treaties, which the different nations, claiming territory in America, have carried on, and held with each other. The contests between the cabinets of Versailles and Madrid, respecting the territory on the northern coast of the gulf of Mexico, were fierce and bloody; and continued, until the establishment of a Bourbon on the throne of Spain, produced such amicable dispositions in the two *257crowns, as to suspend or terminate them. Between France and Great Britain, whose discoveries as well as settlements were nearly contemporaneous, contests for the country, actually covered by the Indians, began, as soon as their settlements approached each other, and were continued until finally settled in the year 1763, by the treaty of Paris. Each nation had granted, and partially settled the country, denominated by the French, Acadie, and by the English, Nova Scotia. By the 12th article of the treaty of Utrecht, made in 1703, his most Christian Majesty ceded to the Queen of Great Britain, “all Nova Scotia or Acadie, with its ancient boundaries.” A great part of the ceded territory was in the possession of the Indians, and the extent of the cession could not be adjusted by the commissioners to whom it was to be referred. The treaty of Aix-la-Chapelle, which was made *on the principle of the status ante bellum, did not remove this subject of controversy. Commissioners for its adjustment were appointed, whose very able and elaborate, though unsuccessful, arguments, in favor of the title of their respective sovereigns, show how entirely each relied on the title given by discovery to lands remaining in the possession of Indians.

After the termination of this fruitless discussion, the subject was transferred to Europe, and taken up by the cabinets of Versailles and London. This controversy embraced not only the boundaries of New England, Nova Scotia, and that part of Canada which adjoined those colonies, but embraced our whole western country also. France contended not only that the St. Lawrence was to be considered as the centre of Canada, but that the Ohio was within that colony. She founded this claim on discovery, and on having used that river for the transportation of troops, in a war with some southern Indians. This river was comprehended in the chartered limits of Virginia; but though the right of England to a reasonable extent of country, in virtue of her discovery of the sea-coast, and of the settlements she made on it, was not to be questioned, her claim of all the lands to the Pacific ocean, because she had discovered the country washed by the Atlantic, might, without derogating from the principle recognised by all, be deemed extravagant. It interfered, too, with the claims of France, founded on the same principle. She, therefore, sought to strengthen her original title to *the lands in controversy, by insisting that it had been acknowledged by France, in the 15th article of the treaty of Utrecht. The dispute respecting the construction of that article has no tendency to impair the principle, that discovery gave a title to lands still remaining in the possession of the Indians. Whichever title prevailed, it was still a title to lands occupied by the Indians, whose right of occupancy neither controverted, and neither had then extinguished.

These conflicting claims produced a long and bloody war, which was terminated by the conquest of the whole country east of the Mississippi. In the treaty of 1763, France ceded and guarantied to Great Britain, all Nova Scotia or Acadie, and Canada, with their dependencies; and it was agreed, that the boundaries between the territories of the two nations, in America, should be irrevocably fixed by a line drawn from the source of the Mississippi, through the middle of that river and the lakes Maurepas and Ponchartrain, to the sea. This treaty expressly cedes, and has always been understood to cede, the whole country, on the English side of the dividing line, between the two nations, although a great and valuable part of it was *258occupied by the Indians. Great Britain, on her part, surrendered to France all her pretensions to the country west of the Mississippi. It has never been supposed, that she surrendered nothing, although she was not in actual possession of a foot of land. She surrendered all right to acquire the country; and any after-attempt to purchase it from the Indians, would have been considered *and treated as an invasion of the territories of France. By the 20th article of the same treaty, Spain ceded Florida, with its dependencies, and all the country she claimed east or south-east of the Mississippi, to Great Britain. Great part of this territory also was in possession of the Indians. By a secret treaty, which was executed about the same time, France ceded Louisiana to Spain; and Spain has since retroceded the same country to France. At the time both of its cession and retrocession, it was occupied, chiefly, by the Indians. Thus, all the nations of Europe, who have acquired territory on this continent, have asserted in themselves, and have recognised in others, the exclusive right of the discoverer to appropriate the lands occupied by the Indians. Have the American states rejected or adopted this principle?

By the treaty which concluded the war of our revolution, Great Britain relinquished all claim, not only to the government, but to the “propriety and territorial rights of the United States,” whose boundaries were fixed in the second article. By this treaty, the powers of government, and the right to soil, which had previously been in Great Britain, passed definitively to these states. We had before taken possession of them, by declaring independence; but neither the declaration of independence, nor the treaty confirming it, could give us more than that which we before possessed, or to which Great Britain was before entitled. It *has never been doubted, that either the United States, or the several states, had a clear title to all the lands within the boundary lines described in the treaty, subject only to the Indian right of occupancy, and that the exclusive power to extinguish that right, was vested in that government which might constitutionally exercise it.

Virginia, particularly, within whose chartered limits the land in controversy lay, passed an act, in the year 1779, declaring her “exclusive right of pre-emption from the Indians, of all the lands within the limits of her own chartered territory, and that no person or persons whatsoever, have, or ever had, a right to purchase any lands within the same, from any Indian nation, except only persons duly authorized to make such purchase; formerly for the use and benefit of the colony, and lately for the commonwealth.” The act then proceeds to annul all deeds made by Indians to individuals, for the private use of the purchasers. Without ascribing to this act the power of annulling vested rights, or admitting it to countervail the testimony furnished by the marginal note opposite to the title of the law, forbidding purchases from the Indians, in the revisals of the Virginia statutes, stating that law to be repealed, it may safely be considered as an unequivocal affirmance, on the part of Virginia, of the broad principle which had always been maintained, that the exclusive right to purchase from the Indians resided in the government. In pursuance of the same idea, Virginia proceeded, at the same session, to open her *land-office, for the sale of that country which now constitutes Kentucky, a country, every acre of which was then claimed and possessed by Indians, who maintained their title with as much persevering courage as was ever manifested by any people.

*259The states, having within their chartered limits different portions of territory covered by Indians, ceded that territory, generally, to the United States, on conditions expressed in their deeds of cession, which demonstrate the opinion, that they ceded the soil as well as jurisdiction, and that in doing so, they granted a productive fund to the government of the Union. The lands in controversy lay within the chartered limits of Virginia, and were ceded with the whole country north-west of the river Ohio. This grant contained reservations and stipulations, which could only be made by the owners of the soil; and concluded with a stipulation, that “all the lands in the ceded territory, not reserved, should be considered as a common fund, for the use and benefit of such of the United States as have become, or shall become, members of the confederation,” &e., “ according to their usual respective proportions in the general charge and expenditure, and shall be faithfully and bona fide disposed of for that purpose, and for no other use or purpose whatsoever.” The ceded territory was occupied by numerous and warlike tribes of Indians; but the exclusive right of the United States to extinguish their title, and to grant the soil, has never, we believe, been doubted.

*After these states became independent, a controversy subsisted between them and Spain respecting boundary. By the treaty of 1795, this controversy was adjusted, and Spain ceded to the United States the territory in question. This territory, though claimed by both nations, was chiefly in the actual occupation of Indians. The magnificent purchase of Louisiana, was the purchase from France of a country almost entirely occupied by numerous tribes of Indians, who are in fact independent. Yet, any attempt of others to intrude into that country, would be considered as an aggression which would justify war. Our late acquisitions from Spain are of the same character; and the negotiations which preceded those acquisitions, recognise and elucidate the principle which has been received as the foundation of all European title in America.

The United States, then, have unequivocally acceded to that great and broad rule by which its civilized inhabitants now hold this country. They hold, and assert in themselves, the title by which it was acquired. They maintain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest; and gave also a right to such a degree of sovereignty, as the circumstances of the people would allow them to exercise. The power now possessed by the government of the United States to grant lands, resided, while we were colonies, in the crown or its grantees. The validity of the titles given by either has never *been questioned in our courts. It has been exercised uniformly over territory in possession of the Indians. The existence of this power must negative the existence to any right which may conflict with and control it. An absolute title to lands cannot exist, at the same time, in different persons, or in different governments. An absolute, must be an exclusive title, or at least a title which excludes all others not compatible with it. All our institutions recognise the absolute title of the crown, subject only to the Indian right of occupancy, and recognise the absolute title of the crown to extinguish that right. This is incompatible with an absolute and complete title in the Indians.

We will not enter into the controversy, whether agriculturists, merchants *260and manufacturers, have a right, on abstract principles, to expel hunters from the territory they possess, or to contract their limits. Conquest gives a title which the courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim which has been successfully asserted. The British government, which was then our government, and whose rights have passed to the United States, asserted a title to all the lands occupied by Indians, within the chartered limits of the British colonies. It asserted also a limited sovereignty over them, and the exclusive right of extinguishing the titles which occupancy gave to them. These claims have been maintained and established as far west as the river Mississippi, by the sword. The title *to a vast portion of the lands we now hold, orignates in them. It is not for the courts of this country to question the validity of this title, or to sustain one which is incompatible with it.

Although we do not mean to engage in the defence of those principles which Europeans have applied to Indian title, they may, we think, find some excuse, if not justification, in the character and habits of the people whose rights have been wrested from them. The title by conquest is acquired and maintained by force. The conqueror prescribes its limits. Humanity, however, acting on public opinion, has established, as a general rule, that the conquered shall not be wantonly oppressed, and that their condition shall remain as eligible as is compatible with the objects of the conquest. Most usually, they are incorporated with the victorious nation, and become subjects or citizens of the government with which they are connected. The new and old members of the society mingle with each other; the distinction between them is gradually lost, and they make one people. Where this incorporation is practicable, humanity demands, and a wise policy requires, that the rights of the conquered to property should remain unimpaired; that the new subjects should be governed as equitably as the old, and that confidence in their security should gradually banish the painful sense of being separated from their ancient connections, and united by force to strangers. When the conquest is complete, and the conquered inhabitants can be blended with the conquerors, *or safely governed as a distinct people, public opinion, which not even the conqueror can disregard, imposes these restraints upon him ; and he cannot neglect them, without injury to his fame, and hazard to his power.

But the tribes of Indians inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country, was to leave the country a wilderness; to govern them as a distinct people, was impossible, because they were as brave and as high-spirited as they were fierce, and were ready to repel by arms every attempt on their independence. What was the inevitable consequence of this state of things? The Europeans were under the necessity either of abandoning the country, and relinquishing their pompous claims to it, or of enforcing those claims by the sword, and by the adoption of principles adapted to the condition of a people with whom it was impossible to mix, and who could not be governed as a distinct society, or of remaining in their neighborhood, and exposing themselves and their families to the perpetual hazard of being massacred. Frequent and bloody wars, in which the whites were not always the aggressors, unavoida*261bly ensued. European policy, numbers and skill prevailed; as the white population advanced, that of the Indians necessarily receded; the country in the immediate neighborhood of agriculturists became unfit for them; the game fled *into thicker and more unbroken forests, and the Indians followed. The soil, to which the crown originally claimed title, being no longer occupied by its ancient inhabitants, was parcelled out according to the will of the sovereign power, and taken possession of by persons who claimed immediately from the crown, or mediately, through its grantees or deputies.

That law which regulates, and ought to regulate in general, the relations between the conqueror and conquered, was incapable of application to a people under such circumstances. The resort to some new and different rule, better adapted to the actual state of things, was unavoidable. Every rule which can be suggested will be found to be attended with great difficulty. However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear; if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land, and cannot be questioned. So too, with respect to the concomitant principle, that the Indian inhabitants are to be considered merely as occupants, to be protected, indeed, while in peace, in the possession of their lands, but to be deemed incapable of transferring the absolute title to others. However this restriction may be opposed to natural right, and to the usages of civilized nations, yet, if it be indispensable to that system under which the country has been settled, and be *adapted to the actual condition of the two people, it may, perhaps, be supported by reason, and certainly cannot be rejected by courts of justice.

This question is not entirely new in this court. The case of Fletcher v. Peck, grew out of a sale made by the state of Georgia, of a large tract of country within the limits of that state, the grant of which was afterwards resumed. The action was brought by a sub-purchaser, on the contract of sale, and one of the covenants in the deed was, that the state of Georgia was, at the time of sale, seised in fee of the premises. The real question presented by the issue was, whether the seisin in fee was in the state of Georgia, or in the United States. After stating, that this controversy between the several states and the United States had been compromised, the court thought it necessary to notice the Indian title, which, although entitled to the respect of all courts, until it should be legitimately extinguished, was declared not to be such as to be absolutely repugnant to a seisin in fee on the part of the state. This opinion conforms precisely to the principle which has been supposed to be recognised by all European governments, from the first settlement of America. The absolute ultimate title has been considered as acquired by discovery, subject only to the Indian title of occupancy, which title the discoverers possessed the exclusive right of acquiring. Such a right is no more incompatible with a seisin in fee, than a lease for years, and might as effectually bar an ejectment.

Another view has been taken of this question, *which deserves to be considered. The title of the crown, whatever it might be, could be acquired only by a conveyance from the crown. If an individual might *262extinguish the Indian title, for his own benefit, or, in other words, might purchase it, still he could acquire only that title. Admitting their power to change their laws or usages, so far as to allow an individual to separate a portion of their lands from the common stock, and hold it in severalty, still it is a part of their territory, and is held under them, by a title dependent on their laws. The grant derives its efficacy from their will; and, if they choose to resume it, and make a different disposition of the land, the court of the United States cannot interpose for the protection of the title. The person who purchases lands from the Indians, within their territory, incorporates himself with them, so far as respects the property purchased; holds their title under their protection, and subject to their laws. If they annul the grant, we know of no tribunal which can revise and set aside the proceeding. We know of no principle which can distinguish this case from a grant made to a native Indian, authorizing him to hold a particular tract of land in severalty. As such a grant could not separate the Indian from his nation, nor give a title which our courts could distinguish from the title of his tribe, as it might still be conquered from, or ceded by his tribe, we can perceive no legal principle which will authorize a court to say, that different consequences are attached to this purchase, because it was made by a stranger. By the treaties concluded *between the United States and the Indian nations, whose title the plaintiffs claim, the country comprehending the lands in controversy has been ceded to the United States, without any reservation of their title. These nations had been at war with the United States, and had an unquestionable right to annul any grant they had made to American citizens. Their cession of the country, without a reservation of this land, affords a fair presumption, that they considered it as of no validity. They ceded to the United States this very property, after having used it in common with other lands, as their own, from the date of their deeds to the time of cession; and the attempt now made, is to set up their title against that of the United States.

The proclamation issued by the king of Great Britain, in 1763, has been considered, and we think, with reason, as constituting an additional objection to the title of the plaintiffs. By that proclamation, the crown reserved under its own dominion and protection, for the use of the Indians, “all the land and territories lying to the westward of the sources of the rivers which fall into the sea from the west and north-west,” and strictly forbade all British subjects from making any purchases or settlements whatever, or taking possession of the reserved lands. It has been contended, that, in this proclamation, the king transcended his constitutional powers; and the case of Campbell v. Hall (reported by Cowper), is relied on to support this position. *It is supposed to be a principle of universal law, that, if an uninhabited country be discovered by a number of individuals, who acknowledge no connection with, and owe no allegiance to, any government whatever, the country becomes the property of the discoverers, so far at least as they can use it. They acquire a title in common. The title of the whole land is in the whole society. It is to be divided and parcelled out according to the will of the society, expressed by the whole body, or by that organ which is authorized by the whole to express it. If the discovery be made, and possession of the country be taken, under the authority of an existing government, which is acknowledged by the emigrants, it is sup*263posed to be equally well settled, that the discovery is made for the whole nation, that the country becomes a part of the nation, and that the vacant soil is to be disposed of by that organ of the government which has the constitutional power to dispose of the national domains, by that organ in which all vacant territory is vested by law.

According to the theory of the British constitution, all vacant lands are vested in the crown, as representing the nation; and the exclusive power to grant them is admitted to reside in the crown, as a branch of the royal prerogative. It has been already shown, that this principle was as fully recognised in America as in the islands of Great Britain. All the lands we hold were originally granted by the crown; and the establishment of a regal government has never been considered as *impairing its right to grant lands within the chartered limits of such colony. In addition to the proof of this principle, furnished by the immense grants, already mentioned, of lands lying within the chartered limits of Virginia, the continuing right of the crown to grant lands lying within that colony was always admitted. A title might be obtained, either by making an entry with the surveyor of a county, in pursuance of law, or by an order of the governor in council, who was the deputy of the king, or by an immediate grant from the crown. In Virginia, therefore, as well as elsewhere in the British dominions, the complete title of the crown to vacant lands was acknowledged. So far as respected the authority of the crown, no distinction was taken between vacant lands and lands occupied by the Indians. The title, subject only to the right of occupancy by the Indians, was admitted to be in the king, as was his right to grant that title. The lands, then, to which this proclamation referred, were lands which the king had a right to grant, or to reserve for the Indians.

According to the theory of the British constitution, the royal prerogative is very extensive, so far as respects the political relations between Great Britain and foreign nations. The peculiar situation of the Indians, necessarily considered, in some respects, as a dependent, and in some respects, as a distinct people, occupying a country claimed by Great Britain, and yet too powerful and brave not to be dreaded as formidable enemies, required, that means should be adopted for *the preservation of peace; and that their friendship should be secured by quieting their alarms for their property. This was to be effected by restraining the encroachments of the whites; and the power to do this was never, we believe, denied by the colonies to the crown.

In the case of Campbell v. Hall, that part of the proclamation was determined to be illegal, which imposed a tax on a conquered province, after a government had been bestowed upon it. The correctness of this decision cannot be questioned, but its application to the case at bar cannot be admitted. Since the expulsion of the Stuart family, the power of imposing taxes, by proclamation, has never been claimed as a branch of regal prerogative; but the powers of granting, or refusing to grant, vacant lands, and of restraining encroachments on the Indians, have always been asserted and admitted. The authority of this proclamation, so far as it respected this continent, has never been denied, and the titles it gave to lands have always been sustained in our courts.

In the argument of this cause, the counsel for the plaintiffs have relied *264very much on the opinions expressed by men holding offices of trust, and on various proceedings in America, to sustain titles to land derived from the Indians. The collection of claims to lands lying in the western country, made in the 1st volume of the Laws of the United States, has been referred to; but we find nothing in that collection to support the argument. Most of the titles were derived *from persons professing to act under the authority of the government existing at the time; and the two grants under which the plaintiffs claim, are supposed, by the person under whose inspection the collection was made, to be void, because forbidden by the royal proclamation of 1763. It is not unworthy of remark, that the usual mode adopted by the Indians for granting lands to individuals, has been to reserve them in a treaty, or to grant them under the sanction of the commissioners with whom the treaty was negotiated. The practice, in such case, to grant to the crown, for the use of the individual, is some evidence of a general understanding, that the validity even of such a grant depended on its receiving the royal sanction.

The controversy between the colony of Connecticut and the Mohegan Indians, depended on the nature and extent of a grant made by those Indians to the colony; on the nature and extent of the reservations made by the Indians, in their several deeds and treaties, which were alleged to be recognised by the legitimate authority; and on the violation by the colony of rights thus reserved and secured. We do not perceive, in that case, any assertion of the principle, that individuals might obtain a complete and valid title from the Indians.

It has been stated, that in the memorial transmitted from the Cabinet of London to that of Versailles, during the controversy between the two nations, respecting boundary, which took place in 1755, the Indian right to the soil is recognised. *But this recognition was made with reference to their character as Indians, and for the purpose of showing that they were fixed to a particular territory. It was made for the purpose of sustaining the claim of his Britannic majesty to dominion over them.

The opinion of the attorney and solicitor-general, Pratt and Yorke, have been adduced to prove, that, in the opinion of those great law-officers, the Indian grant could convey a title to the soil, without a patent emanating from the crown. The opinion of those persons would certainly be of great authority on such a question, and we were not a little surprised, when it was read, at the doctrine it seemed to advance. An opinion so contrary to the whole practice of the crown, and to the uniform opinions given on all other occasions by its great law-officers, ought to be very explicit, and accompanied by the circumstances under which it was given, and to which it was applied, before we can be assured that it is properly understood. In a pamphlet, written for the purpose of asserting the Indian title, styled “Plain Facts,” the same opinion is quoted, and is said to relate to purchases made in the East Indies. It is, of course, entirely inapplicable to purchases made in America. Chalmers, in whose collection this opinion is found, does not say to whom it applies; but there is reason to believe, that the author of “Plain Facts” is, in this respect, correct. The opinion commences thus: “In respect to such places as have been, or shall be acquired, by treaty or grant, from any of the Indian princes or governments, *your majesty's letters-patent are not necessary." The words *265“princes or governments,” are usually applied to the East Indians, but not to those of North America. We speak of their sachems, their warriors, their chiefmen, their nations or tribes, not of their “princes or governments.” The question on which the opinion was given, too, and to which it relates, was, whether the king’s subjects carry with them the common law, wherever they may form settlements. The opinion is given with a view to this point, and its object must be kept in mind while construing its expressions.

Much reliance is also placed on the fact, that many tracts are now held in the United States, under the Indian title, the validity of which is not questioned. Before the importance attached to this fact is conceded, the circumstances under which such grants were obtained, and such titles are supported, ought to be considered. These lands lie chiefly in the eastern states. It is known that the Plymouth Company made many extensive grants, which, from their ignorance of the country, interfered with each other. It is also known, that Mason, to whom New Hampshire, and Gorges, to whom Maine was granted, found great difficulty in managing such unwieldy property. The country was settled by emigrants, some from Europe, but chiefly from Massachusetts, who took possession of lands they found unoccupied, and secured themselves in that possession by the best means in their power. The disturbances in *England, and the civil war and revolution which followed those disturbances, prevented any interference on the part of the mother country, and the proprietors were unable to maintain their title. In the meantime, Massachusetts claimed the country and governed it. As her claim was adversary to that of the proprietors, she encouraged the settlement of persons made under her authority, and encouraged, likewise, their securing themselves in possession, by purchasing the acquiescence and forbearance of the Indians.

After the restoration of Charles II., Gorges and Mason, when they attempted to establish their title, found themselves opposed by men, who held under Massachusetts, and under the Indians. The title of the proprietors was resisted; and though, in some cases compromises were made, and in some, the opinion of a court was given ultimately in their favor, the juries found uniformly against them. They became wearied with the struggle, and sold their property. The titles held under the Indians, were sanctioned by length of possession; but there is no case, so far as we are informed, of a judicial decision in their favor.

Much reliance has also been placed on a recital contained in the charter of Rhode Island, and on a letter addressed to the governors of the neigh boring colonies, by the king’s command, in which some expressions are inserted, indicating the royal approbation of titles acquired from the Indians.

The charter to Rhode Island recites, “that the said John Clark, and others, had transplanted *themselves into the midst of the Indian nations, and were seised and possessed, by purchase and consent of the said natives, to their full content, of such lands,” &c. And the letter recites, that “Thomas Chifflinch and others, having, in the right of Major Asperton, a just propriety in the Narraghanset country, in New England, by grants from the native princes of that country, and being desirous to improve it into an English colony,” &c., “are yet daily disturbed.” The impression this language might make, if viewed apart from the circum*266stances under which it was employed, will be effaced, when considered in connection with those circumstances.

In the year 1635, the Plymouth Company surrendered their charter to the crown. About the same time, the religious dissensions of Massachusetts expelled from that colony several societies of individuals, one of which settled in Rhode Island, on lands purchased from the Indians. They were not within the chartered limits of Massachusetts, and the English government was too much occupied at home, to bestow its attention on this subject. There existed no authority to arrest their settlement of the country. If they obtained the Indian title, there were none to assert the title of the crown. Under these circumstances, the settlement became considerable. Individuals acquired separate property in lands which they cultivated and improved; a government was established among themselves; and no power existed in America which could rightfully interfere with it.

On the restoration of Charles II., this small society *hastened to acknowledge his authority, and, to solicit his confirmation of their title to the soil, and to jurisdiction over the country. Their solicitations were successful, and a charter was granted to them, containing the recital which has been mentioned. It is obvious, that this transaction can amount to no acknowledgment, that the Indian grant could convey a title paramount to that of the crown, or could, in itself, constitute a complete title. On the contrary, the charter of the crown was considered as indispensable to its completion.

It has never been contended, that the Indian title amounted to nothing. Their right of possession has never been questioned. The claim of government extends to the complete ultimate title, charged with this right of possession, and to the exclusive power of acquiring that right. The object of the crown was, to settle the sea-coast of America; and when a portion of it was settled, without violating the rights of others, by persons professing their loyalty, and soliciting the royal sanction of an act, the consequences of which were ascertained to be beneficial, it would have been as unwise as ungracious, to expel them from their habitations, because they had obtained the Indian title, otherwise than through the agency of government. The very grant of a charter is an assertion of the title of the crown, and its words convey the same idea. The country granted, is said to be “ our island called Rhode Island;" and the charter contains an actual grant of the soil, as well as of the powers of government.

*The letter was written a few months before the charter was issued, apparently at the request of the agents of the intended colony, for the sole purpose of preventing the trespasses of neighbors, who where disposed to claim some authority over them. The king, being willing himself to ratify and confirm their title, was, of course, inclined to quiet them in their possession. This charter, and this letter, certainly sanction a previous unauthorized purchase from Indians, under the circumstances attending that particular purchase, but are far from supporting the general proposition, that a title acquired from the Indians would be valid against a title acquired from the crown, or without the confirmation of the crown.

The acts of the several colonial assemblies, prohibiting purchases from the Indians, have also been relied on, as proving, that, independent of such prohibitions, Indian deeds would be valid. But, we think, this fact, at most, *267equivocal. While the existence of such purchases would justify their prohibition, even by colonies which considered Indian deeds as previously invalid, the fact that such acts have been generally passed, is strong evidence of the general opinion, that such purchases are opposed by the soundest principles of wisdom and national policy.

After bestowing on this subject a degree of attention which was more required by the magnitude of the interest in litigation, and the able and elaborate arguments of the bar, than by its intrinsic difficulty, the court is decidedly of opinion, that the plaintiffs do not exhibit a title which can *be sustained in the courts of the United States; and that there is no error in the judgment which was rendered against them in the district court of Illinois.

Judgment affirmed, with costs.

Samuel A. Worcester, Plaintiff in Error v. The State of Georgia.

A writ of error was issued to “ the judges of the superior court for the county of Gwinnett in the 6tale of Georgia,” commanding them to send to the supreme court of the United States, the íecord and proceedings in the said superior-court of the county of Gwinnett, between the state of Georgia, plaintiff, and Samuel A. Worcester, defendant, on an indjctment in that court.. The record of the court of Gwinnett was returned, certified by the clerk of the court, and was also authenticated by the seal of the court. It was returned with, and annexed to, a writ of error issued in regalar form, the citation being signed by one of the associate justices'of the supreme court, and served on the governor and attorney-general of the state more than thirty days before the commencement of the term to which the writ of error was returnable.

By the court: The judicial .act, so far as it prescribes the mode of proceeding, appears' to have been literally, pursued. In February 1797, a rule was made on this subject, in the following words: it is-ordered by the court, that the clerk of the court to which any writ of error shall be directed, may make return of the same by.transmitting a true copy of the record, and of ail proceedings in.' the same, under bis hand and the seal of the court.”

This has been done. But the signature of the judge has not been added to that of the clerk. The law does not require it. The rule does not require it.

The plaintiff in error was indicted in the supreme court for the county of Gwinnett in the state of Georgia, “for residing, on the 35th July 1831, in that part of the Cherokee nation attached by the laws of the state of Georgia to that county, without a license or permit from the governor of the state, or from any one authorised to grant it, and without having- taken the oath to support and defend the constitution and laws Of the state of Georgia, and uprightly to demean, himself, as a citizen thereof, contrary to the laws of the said state.” To this indictment he pleaded that he was, on the 15th July 1831, in the Cherokee nation, out of the jurisdiction of the court of Gwinnett county; that he was a citizen of Vermont, and entered the Cherokee nation as a missionary under the authority of the president of the United States, and has not been required' by him to leave it, and that with the permission and approval of the Cherokee nation he was engaged in preaching the gospel: that the state of Georgia ought not to maintain the prosecution, as several treaties had been entered into by the United States with the Cherokee nation, by which that nation was acknowledged to be a sovereign nation, and by which the territory occupied by them was guarantied to them by the United States; and that the laws of Georgia, under which the plaintiff in error was indicted, are repugnant to the treaties, and unconstitutional and void, and also that they are repugnant to the act of congress of March 1802, entitled “ an act to regulate trade and intercourse with, the Indian tribes. T,he superior c'ourt of Gwinnett overruled the plea, and the plaintiff in error was tried and convicted, and sentenced “ to hard labour in the penitentiary for four years.” Held, that this was a case in which the supreme court of the United States had jurisdiction by writ of error, under *516the twenty-fifth section of the “ act to establish the judicial courts of the United States” passed in 1789.

The indictment and plea in this case draw in question the validity of the treaties rnade by the United Stales with the Cherokee Indians: if not so, their construction is certainly drawn in question; and the decision has been, if not •against their validity, “ against the right, privilege or exemption specially set up and claimed under them.” They also draw into question the validity •of a statute of the state of Georgia, on the ground of its being repugnant to the constitution, treaties and laws of the United States, and the decision is in favour of its validity.”

It is too clear for controversy, that the act of congress, by which this court is constituted, has given it the power, and of course imposed on it the duty of exercising jurisdiction in this case. The record,- according to the judiciary act and the rule and practice of the court, is regularly before the court.

The act of the legislature of Georgia, passed 22d December 1830, entitled “ an act to prevent the exercise of assumed and arbitrary power by all persons, under pretext ,of authority from the Cherokee Indians,” &e. enacts that “all white persons, residing within the limits of the Cherokee nation on the 1st day of March next, or at anytime thereafter, without a license or permit from his excellency the governor, or from such agent as his excellency the governor shall authorise to grant such permit or license, and who shall not have taken the oath hereinafter required, shall be guilty of a high misdemeanour, and upon conviction thereof, shall be punished By confinement to the penitentiary at hard labour, for a term not less than four years.” The eleventh section authorises the governor, “ should he deem it necessary for the protection of the mines, or tire enforcement of the laws in force within the Cherokee nation, to raise and organise a guard,” &c. The thirteenth section enacts, “ that the said guard or any member of them, shall be, and they are hereby authorised and empowered tp arrest any person legally charged with or detected in a violation of the laws of this state, and to convey, as soon as practicable, the person so attested, before a justice of the peace, judge of the superior, justice of intetior court of this state, to'be dealt with according to law.” The extraterritorial power of every legislature being limited in its action to its own citizens or subjects, the vety passage of this act is an assertion'of jurisdiction over the Cherokee nation, and of tire rights and powers consequent thereto-

The principle, “ that discovery of pails of the continent of America gave title to the government by whose subjects, or by whose authority it was made, against . all other European governments, which title might be consummated by possession,” acknowledged by all Europeans, because it was the interest of all to acknowledge it; gave to the nation making the discovery, as its inevitable consequence, the sole right of acquiring the soil and of making settlements on it. It was an exclusive principle; which shut out the right of competition among those who had agreed to it; not one which could annul the previous rights of those who had not agreed to it. It regulated the right given by discovery among the European discoverers, but could not affect the rights of those already in possession, either as aboriginal occupants, or as occupants by virtue of a discovery made before the memory of man. It gave the exclusive right to purchase, but did not found that tight on a denial of the right of the possessor to sell.

Therelation between the Europeans and the natives was determined in each case by the particular government which asserted and could maintain this pre*517emptive privilege in the particular place. The United States succeeded to all the claims of Great Britain, both territorial and political, but no attempt, so far as is known, has. been made to enlarge them. So far as they existed merely in theory, or were in their nature only exclusive of the claims of other European nations, they still retain their origihal character, and remain dormant. So far as they have been practically exerted, they exist in fact, are understood by both parties, are asserted by the one, and admitted by the other.

Soon after Great Britain determined on planting colonies in America, the king granted charters to companies of his subjects, who associated for the purpose of carrying the views of the crown into effect, and of .enriching themselves. The first of these charters was made before possession was taken of any part of the country. They purport generally to convey the soil, from the Atlantic to the South Sea. This soil was occupied by numerous and Warlike nations, equally willing and able to defend their possessions. The. extravagant and absurd idea, that the feeble settlements made on the sea coast, or the companies under whom they were made, acquired legitimate power by them to govern the people, or occupy the lands from sea to sea, did not enter the mind of any man. They were well understood to convey the title which, according to the common law of European sovereigns respecting America, they might rightfully convey, and no more. This was the exclusive right of purchasing such lands as the natives were willing to sell. The crown could not be understood to grant, what the crown did not affect to claim, nor was it so understood.

Certain it is, that our history furnishes no example, from the first settlement of our country, of any attempt, ort the part of the crown, to interfere with the internal affairs of the Indians, farther than to keep out the agents of foreign powers, who, as traders or otherwise, might seduce them into foreign alliances. The king purchased their lands when they were willing to sell, at a price they were willing to take; but never coerced a surrender of them. He also purchased their alliance and dependence by subsidies; but never intruded into the interior of their affairs, or interfered with their self government, so far as respected themselves only.

The third article of the treaty of Hopewell acknowledges the Cherokees to be under the protection of the United States of America, and of no other power.

This stipulation is found in Indian tréáties, generally. ‘It was introduced into their treaties with Great Britain; and may probably be found in those with other European powers. Its origin may be traced to the nature of their connexion with those powers; and its true meaning is discerned in their relative situation.

The genera! law of European sovereigns, respecting their claims in America, limited the intercourse of Indians, in a great degree, to the particular potentate, whose' ultimate right of domain was acknowledged by the others. This was the general state of things in time of peace. It was sometimes changed in war. The consequence was, that their supplies were derived chiefly irom that nation, and their trade confined to it. Goods, indispensable to their comfort, in the shape of presents, were received ‘from the same hand. What was of still more importance, the strong hand of government was interposed to. restrain the disorderly and licentious from intrusions into their country, from encroachments on their lands, and from those acts of violence which were often attended by reciprocal murder. The Indians pe/ceived in this protection, only what was beneficial to themselves — an engagement to punish aggressions on them. It involved practically no claim to their lands, no dominion over their persons. *518it merely bound (he nation to the British crown, as a dependent ally, claiming the protection of a powerful friend and neighbour,' and receiving the advantages of that protection, without involving a surrender of their national character.

This is the true meaning of the stipulation, and is undoubtedly the sense in which it was made. Neither the, British government, nor the Cherokees, ever understood it otherwise.

The same stipulation entered into with the United States, is undoubtedly to be construed in the same manner. They receive the Cherokee nation into their favour and protection. The Cherokees acknowledge themselves to be imder the protection of the United States, and of no other power. Protection does not imply the destruction of the protected. The manner in which this stipulation was understood by the American government, is explained by the language and acts of our first president.

So with respect to the words “ hunting grounds.” Hunting was at that time the principal occupation of the Indians, arid-their land was more used for fhat purpose than for any other. It could not, however, be supposed, that any intention, existed of restricting the full use of the lands they reserved.

To the United States, it could be a matter of no concern, whether their whole territory was devoted to hunting grounds,'or whether an occasional village, and an occasional corn field interrupted, and gave some variety to the scene.

These terms had been used in their treaties with Great Britain, and had never been misunderstood. 7 hey had never been supposed to imply a right in the British government to take their lands, or to interfere with their internal government.

The sixth -and seventh articles stipulate for the punishment of the citizens of either country, who may commit offences on or against the citizens of the other. The only inference Jo, be drawn from them is, that the United States considered the Cherokees as' a nation.

The ninth article is in these vvords: “ for the benefit and comfort of the Indians, and for the prevention of injuries or oppressions on the part of the citizens or Indians, the United States, in congress assembled, shall have the sole and exclusive right of regulating the trade with the Indians, and managing all their affairs, as they think proper.” To construe the expression “managing all their affairs,” into a surrender of self government would be a perversion of their necessary meaning, and a departure from the construction which has been uniformly put on them. The great subject of the article is the Indian trade. The influence it gave made it desirable that congress should possess it. The commissioners brought, forward the claim, with the profession' that their motive was, “ the benefit and comfort of the Indians, and the prevention of injuries or oppressians.” This may be true, as respects the regulation of their trade, and as respects the regulation of all affairs connected with their trade; but cannot be true, as respects the management of all their affairs.’ The' most important of these, is the cession of their lands, and securlty against intruders on them. . Is it credible, that they could have considered themselves as surrendering to the United States, the right to dictate their future cessions, and the terms on which they should be made; or to compel their submission to the violence of disorderly and licentious intruders? It is equally inconceivable that they could have supposed themselves, by a phrase thus slipped into an article, on another and more interesting subject, to have divested themselves of the right of self'government on subjects not connected with trade. Such a measure could not be *519« for their benefit and- comfort,” or for “ the prevention of injuries and oppression.” Such a construction would be inconsistent with the spirit 6f this and of all subsequent treaties; especially of those articles which recognise the right of the Cherokees to declare hostilities, and to make war. It would convert á treaty of peace covertly into an.act annihilating the political existence of one of the parties. Had such a result been intended, it would have been openly avowed.

This treaty contains a few terms capable of being used in a sense which could not have been intended at the time, apd which is inconsistent with the practical construction which has always been put on them; but its essential articles treat the Cherokees as a.nation capable of maintaining the relations of peace -and war; and ascertain the boundaries between them and the United States.

The treaty of Holston, negotiated with the Cherokees in July 1791; explicitly recognising the national character of the Cherokees, and their right of self-government; thus guarantying their lands; assuming the duty of protection; and of course pledging the faith of the United States for that protection; has been frequently renewed, and is now in full force.

To the general pledge of protection have been added several specific pledges, deemed valuable by the Indians. Some of these restrain the citizens of the United States from encroachments on the Cherokee country, and Drovide for the punishment of intruders.

The treaties and laws of the United States contemplate the Indian territory as completely separated from that of the states;, and provide that all intercourse with them shall be carried on exclusively by the government of the union. •

The Indian nations had always been considered as distinct, independent political ' communities, retaining their original natural rights, as the undisputed possessors of the soil, from time immemorial; with the single exception of that imposed by irresistible powér, which excluded them from intercourse with any other European potentate than the first discoverer of the coast of the particplar region claimed: and this was a restriction which those European potentates imposed on themselves, as well as on the Indians. The very term “ nation,” so generally applied to them, means “ a people distinct from others.” The constitution, by declaring treaties already made, .as Well as those to be made, to be the supreme law of the land, has adopted and sanctioned the previous treaties with the Indian nations, and, consequently, admits their rank among those powers who are capable of making treaties. The words “ treaty” and “ nation” are words of our own language, selected in our diplomatic and legislative proceedings, by ourselves, having each a definite and well understood meaning. We have applied them to Indians,' as we have applied them to the other natións of the earth. They are applied, to all in the same sense.

Georgia, herself, has furnished conclusive evidence .that her former opinions on this subject concurred with those entertained by her sister states, and by the government of the United States. Vaiious acts of her legislature have been cited in the argument, including the contract of cession made in the year 1802, . all tending to prove her acquiescence in the universal conviction that the Indian nations possessed a.full right to the lands they occupied, until that right should be extinguished by the United States with their consent; that their territory was separated from that of any state within whose chartered limits they might reside, by a boundary line, established by treaties: that, witlrin their boundary, they possessed rights with which no state could interfere: and that the whole power of regulating the intercourse with them was vested in the United States.

*520Ia opposition to the original right, possessed by the undisputed occupants of every country, to this recognition of that right, which is evidenced by our history in every change through which we have passed, are placed the charters granted by the monarch of a distant and distinct region, parcelling out a territory in possession of others, whom he could not remove, and did not attempt to remove, and the cession made of his claims, by the treaty of peace. The actual state of. things at the time, and all history since, explain these charters; and the king of Great Britain, at the treaty of peace, could cede only what belonged to his crown. These newly asserted titles can derive no aid from the articles so often repeated in Indian treaties, extending to them, first, the protection of Great Britain, and afterwards that of the United States. These articles are associated with others,,recognising their title to self-government. The very fact of repeated treaties with them recognises it; and the settled doctrine of the law of nations is, that a weaker power does not surrender its independence — rits light to .self-government, by associating with a stronger, and taking its protection. A weak state, in order to providé for its safety, may place itself under the protection of one more powerful, without stripping itself of the right of government, and ceasing to be a state. Examples of this kind are not wanting in Europe. “ Tributary and feudatory states,” says Vattel, “ do not thereby cease to be sovereign and independent states, so long as self-government and sovereign and independent authority are leit in the administiation of the state.” At the present day, more than one state may be considered as holding its right of self-government under the guarantee and protection of one or more allies.

The Cherokee nation, then, is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws ,of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of congress. The whole intercourse between the United States and this nation, is, by our constitution and laws, vested in the government of the United States.

The act of the state of Georgia, under which the plaintiff in error was prosecuted, is consequently void, and the judgment a nullity.

The acts of the legislatuie of Georgia interfere forcibly with the relations established between the United States and the Cherokee nation, the regulation of which, according to the settled principles of our constitution, is committed exclusively to the government of the union.

They are in direct hostility with treaties, repeated in a succession of years, which mark out the boundary that separates the Cherokee country from Georgia; guaranty to them all the land within their boundary; solemnly pledge the faith of the United States to restrain their citizens from trespassing on it; and recognise the pre-existing power of the nation to govern itself.

They are in equal hostility with the acts of congress for regulating this intercourse and giving effect to the treaties.

The forcible seizure and abduction of the plaintiff in error, who was residing in the nation, with its permission, and by authority of the president of the United States, is also a violation of the acts which authorise the chief magistrate to exercise this authority.

Will these powerful considerations avail the plaintiff in error? We think they will. He was seized and forcibly carried away, while under guardianship of treaties guarantying the country in which he resided and taking it under the protection of the United States. He was seized while performing, under the *521sanction of the chief magistrate of the union, those duties which the humane policy adopted" by congress had recommended. He was apprehended, tried, and condemned, under colour of a law which has been shown to be repugnant to .the constitution, laws, and treaties of the United States. Had a judgment, liable to the same objections, been rendered for property, none would question the jurisdiction of this court. Xt cannot be less clear when the judgment affects personal liberty,and inflicts disgraceful punishment; if punishment could disgrace when inflicted on innocence. The plaintiff in error is not less interested'in the operation of this unconstitutional law than if it affected his property. He is not less entitled to the protection of tile constitution, laws, and treaties of hi3. country.

THIS was a writ of error to the superior court for the county of Gwinnett, in the staté of Georgia.

On the 22d December 1S30, the legislature of the state of Georgia passed the following act:

“An-act to prevent the exercise of assumed and arbitrary-power, by all persons, under pretext ol authority from the Cherokee Indians and their laws, and to prevent white persons from residing within that part of the chartered limits óf Georgia, occupied by the Cherokee .Indians, and to provide a guard for the protection of the gold mines, and to enforce the laws of the state within the aforesaid territory.

“ Be it enacted by the senate and house of representatives of the state of Georgia in general assembly met, and it is hereby enacted by the authority of the same, that, after the 1st day of February 1831, it shall not be lavvful for any person or persons, under colour or pretence of authority from said Cherokee tribe, or as headmen, chiefs' or warriors of said tribe, to cause or procure by any means the assembling of any council or other pretended legislative body of the said Indians or others living among them, for the purpose of legislating (or for any other purpose whatever). And persons offending against the provisions of this section shall be guilty of a high misdemeanour, and subject to indictment therefor, and, on. conviction, shall be-punished by confinement at hard labour in the penitentiary for the space of four years.

“ Sec. 2. And be it further enacted by the authority aforesaid, that, after the time aforesaid, it shall not be lawful for any person or persons, under pretext of authority from the Cherokee tribe, or as representatives', chiefs, headmen or warriors of said tribe, to meet or assemble as a council, assembly, *522convention, or in any other capacity, for the purpose of making laws, orders or regulations for said tribe. And all persons offending against the provisions offfhis section, shall be guilty of a high misdemeanour, and subject to an indictment, and, on conviction thereof, shall undergo an imprisonment in the penitentiary at hard labour for the space of four years.

“Sec. 3. 'And be it further enacted by the authority aforesaid, that, after .the time aforesaid, it shall not be lawful for any person or persons, under -colour or by authority of the Cherokee tribe, or any of its laws or- regulations, to hold any court or tribunal whatever, for the purpose of hearing and determining causes, either civil or criminal; or to give any judgment in such causes, or to issue, or cause to issue, any process against the person or property of any of said tribe. And all persons offending against the provisions of this.section shall be guilty of a high misdemeanour, and subject to indictment, and, on conviction thereof, shall be imprisoned in the penitentiary at hard labour for the space of four years.

“Sec. 4. And be'it further enacted by the authority aforesaid, that, after the time aforesaid, it shall not be lawful for any person or persons, as a ministerial officer, or in any other capacity, to execute any precept, command or process issued by any-eourt or tribunal in the Cherokee tribe, on the persons or property of any of said tribe. And all persons offending against the provisions of this section, shall be guilty of a trespass, and subject to indictment, and, on conviction thereof, shall be punished by fine.and imprisonment in the jail or in the penitentiary, not longer than four years; at the discretion of the . court.

’■‘.Sec. 5. And be it further enacted by the authority aforesaid, that, after the time aforesaid, it shall not be lawful for any person or persons to confiscate, or attempt to confiscate, or otherwise to cause a forfeiture of the property or estate of any Indian of said tribe, in consequence of his enrolling himself and family for emigration, or offering to enrol for emigration, or any other act of said Indian, in furtherance of his intention to emigrate. And persons offending against the provisions of this section shall be guilty of high misdemeanour, and, on conviction, shall undergo an imprisonment in the penitentiary at hard labour for the space of four years.

*523“ Sec. 6. And be it further enacted by the authority aforesaid, that noné of the provisions of this act shall be so construed as to prevent said tribe, its headmen, chiefs or other representatives, from meeting any agent or commissioner, on the part of this state or the United States, for any purpose whatever.

“ Sec. 7. And be it further enacted by the authority aforesaid, that all white persons residiilg'within the limits of the Cherokee nation, on'the 1st day of Ma!rch next, or at a v time thereafter, without a license or permit from his excellency the governor, or from such agent as his excellency the governor shall authorise to grant such permit or license, and who shall not have taken the oath hereinafter required, shall be guilty of a high misdemeanour, and, upon conviction thereof, shall be punished by confinement-to the penitentiary at hard labour for a term not less than four years: provided, that the provisions of this section shall not be so construed as to extend to any authorised agent or agents of the government of the United States or of this state, or to any person or persons who may rent any of those improvements which have been abandoned by Indians who have emigrated west of the Mississippi: provided, nothing contained in this section shall be so construed as to extend to white females, and all male children under twenty-one years of age.

“ Sec. 8.. And be it further enacted by the authority aforesaid, that all- white persons, citizens of the state of Georgia, who have procured a license in writing from his excellency the governor, or from such agent as his excellency the governor shall authorise to grant such permit or license, to reside within the limits of the Cherokee nation, and who have taken the following oath, viz. “I, A..B., do solemnly swear (or affirm, as the case may be) that I will support and defend the constitution and láws of the state of Georgia, and uprightly demean myself as a citizen thereof, so help me God,” shall be, and the same are hereby declared, exempt and free from the operation of the seventh section of this) act.

“ Sec. 9. And be it further enacted, that his excellency the governor be, aqd he is hereby, authorized to grant licenses to reside within the limits of the Cherokee nation, according to the provisions of the eighth section of this act.

“ Sec. 10. And be it further enacted .by the authority afore*524said, that no person shall collect or. claim any toll from any person, for passing any turnpike gate or toll bridge, by authority of any act or law of the Cherokee tribe, or any chief or headman or men of the same.

“Sec. 11. And be it further enacted by the authority aforesaid, that his excellency the governor be, and he is hereby, empowered, should he deem it necessary, either for the pro - tection of the mines, or for the enforcement of the laws of fofce within the Cherokee nation, to,raise and organize a guard, to be employed on foot, or mounted, as occasion may require, which shall not consist of more than sixty persons, whie! guard shall be under the command of the commissioner or agent appointed by the governor, to protect the mines, with power to dismiss from the. service any member of said guard, on paying the wages due for services rendered, for disorderly conduct, and make appointments to fill the vacancies occasioned by such dismissal.

“Sec. 12. And be it further enaeted by the authority aforesaid,' that each person who may belong to said guard, shall receive for his compensation at the rate of fifteen dollars per mbnth when on foot, and at the rate of twenty dollars per month when mounted, for every month that such person is engaged in actual service; and, in the event, that the commissioner or agent, herein referred to, should die, resign, or fail to perform the duties herein required of him, his excellency the governor is hereby authorised and required to appoint, in his stead, some other fit and proper person to, the command of1 said guard; and the commissioner or agent, having the command of the guard aforesaid, for the better discipline thereof, shall appoint three sergeants, who shall receive at the rate of twenty dollars per month while serving on foot, and twenty-five dollars per month, when mounted, as compensation whilst in actual service..

“ Sec. 13. And be it further enacted by the authority, aforesaid, that the said guard, or any merriber of them, shall be, and they are hereby, authorised and empowered to arrest any person legally charged with,-or detected in, a violation of the laws of this state, and to convey, as soon as' practicable, the person so arrested before a justice of the peace, judge of the superior or justice of inferior court of this state, to be dealt. *525with according to law; and the.pay and support of said guard be provided out of the fund already appropriated for the protection of the gold mines.”

.The legislature of Georgia, on the 19th December 1829, passed the following act:

“ An act to add the territory lying within the chartered limits of- Georgia, and now in the occupancy of the Cherokee Indians, to the counties of Carroll, De Kalb, Gwinnett, Hall, and Habersham, and to extend the laws of this state over the same,, and to annul all laws and ordinances made by the Cherokee nation of Indians, and to provide for the compensation of officers serving legal process in said territory, and to regulate the testimony of Indians, and to repeal the ninth section of the act of 1828 upon this subject.

“ Sec. 1. Beit enacted by the senate and house of representatives of the state of Georgia in general assembly met, and it is hereby enacted by the authority of the same, that fr.om and after the passing of this act, all that part of the unlocated territory within the limits of this state, and which lies between the Alabama line and the old path leading from the Buzzard Roost on the Chattahoochee, to Sally Hughes’s, on the High-tower river; thence to Thomas Pelet’s, on the old federal road; thence with said road to the Alabarda line be, and the same is hereby added to, and shall become a part of, the county of Carroll.

“ Sec. 2. And be it further enacted, that all that part of said territory lying and being north of the last mentioned line, and south'of the road running from Charles Gait’s ferry, on the Chattahoochee river, to Dick Roe’s, to where it intersects with the path aforesaid, be, and the same is hereby added to, and shall become a part of, the county of De Kalb.

“ Sec. 3. And be it further enacted, that all that part, of the said territory lying north of the last mentioned line, and south of a line commencing at the mouth of Baldridge’s creek; thence up said creek to its source; from thence to where the federal road crosses the Hightower.; thence with said road to the Tennessee line, be, and the same is hereby added to, and shall become part of, the county of Gwinnett.

“ Sec. 4. And be it further enacted, that all that part of the said territory lying, north of said last mentioned line, and south *526of a line to commence on the Chestatee river, at the mouth of Yoholo creek; thence up said creek to the top of the Blue ridge; thence to the head watérs of Notley river; thence down said river to the boundary line of Georgia, be, and. the same is hereby added to, and shall become , a part of, the county of Hall.

“ Sec. 5. And be it further enacted, that all that part of said territory lying north of said last mentionfed line, within the limits of this state, be, and the same is hereby added to, and shall become a part of, 'the county of Habersham.

“• Sec. 6. And be it further enacted, that all the laws, both civil and criminal, of this state, be, and the same are hereby extended over said portions of territory, respectively; and all persons whatever,"'residing within the same, shall, after the 1st day of June next, be subject and liable to the operation of said laws, in the same .manner as other citizens of this state,‘or the citizens of said counties, respectively; and. all writs and processes whatever, issued by the courts or officers of said courts, shall extend over, and operate on, the portions of territory hereby added to the same, respectively.

“ S.ec. 7. And be it further enacted, that after the 1st day of June next, all laws, ordinances, orders and regulations, of any kind whatever, made, passed or enacted, by the Cherokee Indians, either in general council or in any other way whatever, or by any authority whatever of said tribe, be, and the same are hereby declared to be,, null and void, and of no effect as if the same had never existed; and in all cases.of indictment or civil suits, it shall not be lawful for the defendant to justify under any of said laws, ordinances, orders or regulations; nor shall the courts of this state permit the same to be given in evidence on the trial of any suit whatever.

“ Sec. 8. And be it further enacted, that it shall not be lawful for any person or body of persons, by. arbitrary power or by virtue of any pretended ride, ordinance, law or custom of said Cherokee natipn, to prevent by .threats, menaces or other means, or endeavour to prevent, any Indian of said nation, residing within the chartered limits of this state, from enrolling as an emigrant, or/actually emigrating or removing from said nation; nor shall it be lawful for any person or body of persons, by arbitrary power or by virtue of any pretended rule, *527ordinance, law or custom of said nation, to punish, in any manner, or to molest either the person or property, or to abridge the rights or privileges of any Indian, for enrolling his or her name as an emigrant, or for emigrating or intending to emigrate, from said nation.

“Sec. 9. And be it further enacted, that any person or body of persons offending against the provisions' of the foregoing section, shall be guilty of a high misdemeanour, subject to indictment, and on conviction shall be punished by confinement in the common jail of any county of this state, or by confinement at hard labour in the penitentiary, fop a term not exceeding four years, at the discretion of the court.

“ Sec. 10. And be it further enacted, that it shall not be lawful for any person or hody of persons, by arbitrary power, or under colour of any pretended rule, ordinance, law or custom of said nation, to prevent or offer to prevent, or deter any Indian headman, chief or warrior of said nation, residing within the chartered limits of this state, from selling or ceding to the United States, for the use of Georgia, the whole or any part of said territory, or to prevent or offer to prevent, any Indian, headman, chief or warrior of said nation, residing as aforesaid, from meeting in council or treaty any commissioner or commissioners on the part of the United States, for any purpose whatever.

“Sec. 11. And be it further enacted, that any person or body of persons offending against the provisions of the foregoing sections, shall be guilty of a high misdemeanour, subject to indictment, and. on convictio'n shall be confined at hard labour in the penitentiary for not less than four nor longer than six years, at the discretion of the court.

“ Sec. 12. And be it further enacted, that it shall not be lawful for any person or body of persons, by arbitrary force, or under colour of any pretended rules, ordinances, law or custom of said nation, to také the life of any Indian residing as aforesaid, for enlisting as an emigrant; attempting to emigrate"; ceding, or attempting to cede, as aforesaid, the whole or any part of the Said territory; or meeting or attempting to meet, in treaty or in council, as aforesaid, any commissioner or commissioners aforesaid; and any person or body of persons offending against the provisions of this section, shall be guilty of *528murder, subject to indictment, and, on conviction, shall suffer death by hanging.

“ Sec. 13. And be it further enacted, that, should any of the foregoing offences be committed under colour of any pretended rules, ordinances, custom or law of said nation, all persons acting therein, either as individuals or as pretended executive, ministerial or judicial officers, shall be deemed and considered as principals, and subject to the pains and penalties hereinbefore described.

“ Sec. 14. And be it further enacted, that for all demands which may come within the jurisdiction of a magistrate’s court, suit may be brought for the same in the nearest district of the county to which the territory is hereby annexed; and all officers serving any legal process on any person living on any portion of the territory herein named, shall be entitled to recover the sum of five cents for every mile he may ride to serve the same, after crossing the present limits of the said counties, in addition to the fees already allowed bylaw; and in case any of the said officers should be resisted in the execution of any legal process issued by any court or magistrate, justice of the inferior court, or judge of the superior court' of any of said counties, he is hereby authorised to call out a sufficient number of the militia of said counties to aid and protect him in the execution of this duty.

“ Sec. 15, And be it further enacted, that-no Indian or descendant of any Indian, residing within the Creek or Cherokee nations of Indians, shall be deemed a competent witness in any. court of this state’ to which a white .person may be a party, except such white person resides within the said nation.”

In September 1831, the grand jurors for the county of Gwinnett in the state of Georgia, presented to the superior court of the county the following indictment:

“ Georgia, Gwinnett county: — The grand jurors, sworn, chosen and selected for the county of Gwinnett, in the name and behalf of the citizens of Georgia, charge and accuse Elizur Butler, Samuel. A. Worcester, James Trott, "Samuel Mays, - Surry Eaton, Austin Copeland, and Edward D. Losure, white persons‘of said county, with the offence of ‘ residing within the limits of the Cherokee nation without a license:’ For that the said Elizur Butler, Samuel A. Wor*529cester, James Trott, Samuel Mays, Surry Eaton, Austin Copeland and Edward D. Losure, white persons, as aforesaid, on the 15th day of July 1831, did reside in that part of the Cherokee nation attached by the laws of said state to the said county, and in the county aforesaid, without a license or permit from his excelléncy the governor of said state, or from any agent authorised by hi's excellency the governor aforesaid to grant such permit or license, and without having taken the oath to support; and defend the constitution and laws of the state of Georgia, and uprightly to demean themselves as citizens thereof, contrary to the laws of said state, the good order, peace and dignity thereof. ”

To this indictment, the plaintiff in error pleaded specially, as follows:

“ And the said Samuel A. Worcester, in his own proper person, comes and says, that this court ought not to take further cognizance of the action and prosecution aforesaid, because, he says, that, on the 15th day of July in the year 1831, he was, and still is, a resident in the Cherokee nation; and that the said supposed crime, or crimes, and each of them, were committed, if committed at all, at the town of New Echota, in the said Cherokee nation, out of the jurisdiction of this court, arid not in the county Gwinnett, or elsewhere within the jurisdiction of this court. And this defendant saith, that he is a citizen of the state of Vermont, one of the United States of America, and that he entered the aforesaid Cherokee nation in the capacity of a duly authorised missionary of the American Board of Commissioners for Foreign Missions, under the authority of the president of the United States, and has not since been required by him to leave it: that he was, at the time of his arrest, engaged in preaching the gospel to the Cherokee Indians, and in translating the sacred Scriptures into their language, with the permission and approval of the said Cherokee nation, and in accordance with the humane policy of the government of the United Stales, for the civilization and improvement of the Indians; and that his residence there, for this purpose, is the residence charged in the aforesaid indictment: and this defendant further saith, that this prosecution the state of Georgia ought not to have or maintain, because, he saith,■ that several treaties have, from time to time, been entered *530into between the -United States and the Cherokee nation of Indians, to wit: at Hopewell, on the 28th day of November 1785; at Holston, on the 2d day of July 1791; at Philadelphia, on the 26th day of June 1794; at Tellico, on the 2d day Of October 1798; at Tellico, on the 24th day of October 1804; at Tellico, on the 25th day of October 1805; at . Tellico, on the 27th day of October 1805; at ’Washington city, on'the 7th day of January 1805; at Washington city, on the 22d day of March 1816; at the Chickasaw Council House, on the 14th day of September 1816; at the Cherokee Agency, on the 8th day of July 1817, and at Washington city, on the 27th day of February 1819: all which treaties have been duly ratified by the senate of the United States of America; and, by which treaties the United States of America acknowledge the. said Cherokee nation to be a sovereign nation, authorised to govern themselves, and all persons who have settled within their territory, free from any right of legislative interference by the several states composing the United States of America, in reference to acts done within their own territory; and, by which treaties, the whole of the territory now occupied by the Cherokee nation, on the east of the Mississippi, has been solemnly guarantied to them; all of which treaties aré existing treaties at this day, and in full force. By these treaties, and particularly by the treaties of Hopewell and Holston, the aforesaid territory is acknowledged to lie without the jurisdiction of the'several states composing the union of the United States; and, it is thereby specially stipulated, that the citizens of the United States shall not. enter the aforesaid territory, even on a visit, without a passport from the governor of a state, or from some one duly authorised thereto by'the president of the United States: all of which will more fully and at large appear, by reference to the aforesaid treaties. And this defendant saith, that the several acts charged in the bill of indictment, were done, or omitted to be done, if at all, within the said territory so recognized as belonging to the said nation, and so, as aforesaid, held by them, under .the guarantee of the United States: that, for those acts, the defendant is not amenable to the laws of Georgia, nor to the jurisdiction of the courts of the said state; and that-the laws of the state of Georgia, which profess to add the said territory to the several adjacent counties of the said state, and to. extend the laws of Georgia over the said ter*531ritory, and persons inhabiting the same; and, in particular, the act on which this indictment against this defendant is grounded, to wit: ‘ an act entitled an act to prevent the exercise of assumed and arbitrary power, by all persons, under pretext of authority from the Cherokee Indians, and their laws, and to prevent white persons from residing within that part of the chartered limits of Georgia, occupied by the Cherokee Indians, and to provide a guard for the protection of the gold mines, and to enforce the laws of the state within the aforesaid territory,’ are repugnant to the aforesaid treaties; Which, according to the constitution of the United States, compose a part of the supreme law of the land; and that these laws of Georgia are, therefore, Unconstitutional, void, and of no effect: that the said laws of Georgia are also unconstitutional and void, because they impair the obligation of the various contracts formed by and between, the aforesaid Cherokee nation and the said United States of America, as above recited: also, that the said laws of Georgia are unconstitutional and void, because they interfere with, and attempt to regulate and control the intercourse with the said Cherokee nation, which, by the said constitution, belongs exclusively to the congress of the United States; and because the said laws are repugnant to' the statute of the United States, passed on the-day of March 1802, entitled ‘ an act to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers:’ and that, therefore, this court has no jurisdiction to cause this defendant to make further or other answer to the said bill of indictment, or further to try and punish this defendant for the said supposed offence or offences alleged in the bill of indictment, or any of them: and, therefore, this defendant prays judgment whether he shall be held bound to answer further to said indictment.”

This plea was overruled by the court; and the jurisdiction of the superior court of the county of Gwinnett was sustained by the judgment of the court.

The defendant was then arraigned, and pleaded “ not guilty:” and the case came on for trial on the 15th of September 1831, when the jury found the defendants in the indictment guilty. On the same day the court pronounced sentence on the parties so convicted, as follows:

*532“The State v. B. F. Thompson and others. Indictment for residing in the Cherokee nation without license. Verdict, Guilty; ”

“ The State v. Elizur Butler, Samuel A. Worcester and others. Indictment for residing in the Cherokee nation without license. Verdict, Guilty.”

“ The defendants, in both of the above cases, shall be kept in close custody by the sheriff of this county, until they can be transported to the penitentiary of this state, and the keeper thereof is hereby directed to receive them, and each of them, into his custody, and keep them, and each of them, at hard labour in said ■ penitentiary, for and during the term of four years.”

A writ of error was issued on the application of the plaintiff in error, dn the 27th of October 1831, whi.ch, with the following proceedings thereon, was returned to this court. .

“United States of America, ss. — The president of the United States to the honourable the judges of the superior court for the county of Gwinnett, in the state of Georgia, greeting:

“ Because in the record and proceedings, as also in the rendition of the judgment of a plea which is in the said superior court, for the county of Gwinnett, before you, or some of you, between the state of Georgia, plaintiff, and Samuel A. Worcester, defendant, on an indictment, being the highest court of law in said state in which a decision could be had in said suit, a manifest error hath happened, to the great damage of the said'Samuel A. Worcester, as by his complaint appears. We being willing that error, if any hath been, should be duly corrected, and full and speedy justice done to the parties aforesaid in this behalf, do command you, if judgment be therein given, that then under your seal distinctly and openly, you send the record and proceedings aforesaid, with all things concerning the same, to the supreme court of the United States, together with this writ, so that you have the same at Washington on the second Monday of January next, ih the said supreme court, to be then and there held; that the record and proceedings aforesaid being inspected, the said supreme court may cause further-to be done therein, to correct that error, what of right, and according to the laws and custom of the United States, should be done.

*533“ Witness, the honourable John Márshall, chief justice of the said supreme court, the first Monday of August in the year of o.ur Lord one thousand eight hundred and thirty-one.

Wm. Thos. Carroll,

Clerk of the Supreme Court of the United States.

“ Allowed by Henry- Baldwin.

“.United States of America to the state of Georgia, greeting:

“ You are hereby cited and admonished to be, and appear at a supreme court of the United States, to be holden at Washington, on the second Monday of January next, pursuant to a writ of error filed in the clerk’s office of the superior court for the county of Gwinnett, in the state of Georgia, wherein ■Samuel A. Worcester is plaintiff in error, and the state of Georgia is defendant -in error, to show cause, if any there be, why judgment rendered against the said Samuel A. Worcester, as in the said writ of error mentioned, should not be corrected, and why speedy iustice should not be done to the parties in that behalf.

“ Witness, the honourable Henry Baldwin, one of the justices of the supreme court of the United States, this 27th day of October, in the year of our Lord one thousand eight hundred and thirty-one. Henry Baldwin.

“ State of Georgia, county of Gwinnett, set — On this 26th day of November, in the year of our Lord eighteen hundred and thirty-one, William Potter personally appeared before the subscriber, John Mills, a justice of the peace in and for said county, and being duly sworn on the holy evangelists of Almighty God, deposeth and saith, that on the 24th day of November instant, he delivered a true copy of the within citation to his excellency, Wilson Lumpkin, governor of the state of Georgia, and another true copy thereof he delivered, on the 22d day of November, instant, to Charles J. Jenkins, Esq. attorney-general of the state aforesaid, showing to the said governor and attorney-general, respectively, at the times of delivery herein stated, the within citation. Wm. Potter.

“ Sworn to and subscribed before me, the day and year above written. John Mills, J. .P.”

This writ of error was returned to the supreme court with *534copies of all the proceedings.'in the supreme court of the county of Gwinnett, as stated, and accompanied with certificates of the clerk- of that court in the following terms:

“ Georgia, Gwinnett county. ■ I, John G. Park, clerk of the superior court of the county of Gwinnett, and state aforesaid, do certify that the annexed and foregoing is a full and complete exemplification of the proceedings and judgments had. in said Court against Samuel A.. Worcester, one of the defendants in the case therein mentioned, as they remain, of record, in the said superior court.

“ Given under my-hand, and seal of the court, this 28th day of November 1831. John G. Park, Clerk.

“ I also certify, that the original bond, of which a-copy is annexed (the bond was in the usual form), and also a copy of the annexed writ of error; were duly deposited and filed in-the clerk’s office of said court, on the 10th day of November in the year, of our Lord eighteen hundred and thirty-one.

“ Given under my fiand and seal aforesaid, the day and date above written. John G. Park, Clerk.”.

The case of Elizur Butler, plaintiff in error v. The State of Georgia, was brought before the supreme court in the same 'manner.

The case was argued for the plaintiffs in error by Mr Sergeant and Mr Wirt, with who,m also was Mr Elisha W. Chester.

The following positions were laid down and supported by Mr Sergeant and Mr Wirt.

1. .That the court had jurisdiction of the question brought-before them by the writ of error; and the jurisdiction extended equally to criminal and to-civil cases.

• 2. That the writ of error was duly issued, arid duly returned, so as to bring the question regularly before the court, under the constitution and laws of the United States; and oblige the court to take cognizance of if.

3. * That the statute of Georgia under which the plaintiffs in error were indicted and convicted, was unconstitutional and void. Because:

*5351. By the constitution of the United States, the establishment and regulation of intercourse wi.th the Indians belonged, exclusively, to the government of the United States.

2. The power thus given, exclusively, to the government of the United States ha'd been exercised by .treaties and by acts of congress, now in force, and applying directly to the case of the Cherokees; and that no state could interfere, without a manifest violation of such treaties and laws, which by the constitution were the supreme law of the land.

3. The statute of Georgia assumed the power to change these regulations and laws; to prohibit that which they permitted; and to make that criminal which they declared innocent or méritorious; and to subject to condemnation and punishment, free citizens of the United States who.had committed no offence.

4. That- the indictment, conviction, and sentence being founded upon a statute of Georgia, which was. unconstitutional and void; were themselves also void and of no effect, and ought to be reversed.

These several positions were supported, enforced and illustrated by argument and authority.

The following authorities were referred to:

2 Laws U. S. 65, sect. 25; Judiciary Act of 1789; Miller v. Nicols, 4 Wheat. 311; Craig v. State of Missouri, 4 Peters, 400, 429; Fisher v. Cockerell, 5 Peters, 248; Ex parte Kearny, 7 Wheat. 38; Cohens v. Virginia,. 6 Wheat. 264; Martin v. Hunter, 1 Wheat. 304, 315, 361; 1 Laws U. S. 488, 470, 472, 482, 484, 486, 453; Blunt’s Historical Sketch, 106, 107; Treaties with the Cherokees, 28th Nov. 1785, 2d July 1791, 26th July 1794, 2d Oct. 1798; 3 Laws U., S. 27, 125, 284, 303, 344, 460; 12 Journ. Congress, 82; Blunt’s Hist. Sketch, 113, 110, 111, 114; Federalist, No. 42; 1 Laws U. S. 454; Holland v. Pack, Peck’s Rep. 151; Johnson v. M’Intosh, 8 Wheat. 548; Cherokee Nation v. State of Georgia, 5 Peters, 1, 16, 27, 31, 48; Ware v. Hylton, 3 Dall. 199; Hughes v. Edwards, 9 Wheat. 489; Fisher v. Hamden, 1 Paine, 55; Hamilton v. Eaton, North Carolina Cases; 79; M’Cullough v. State of Maryland, 4 Wheat. 316; 2 Laws U. S. 121; 3 Laws U. S. 460; 6 Laws U. S. 750; Gibbon v. Ogden, 9 Wheat. 1.

*536Mr Chief Justice Marshall

delivered the opinion of the Court.

This cause, in every point of view in which it can be placed, is of the deepest interest.

The defendant is a state, a member of the union, which has exercised the powers of government over a people who deny its jurisdiction, and are under the protection of the United States.

The plaintiff is a citizen of the state of Vermont, condemned to hard labour for four' years in the penitentiary of Georgia; under colour of an act which he alleges to be repugnant to the constitution, laws, and treaties of the United States.

The legislative power of a state, the controlling power of the constitution and laws of the United States, the rights, if they have any; the political existence of a once numerous and powerful people, the personal liberty of a citizen, are all involved in the subject now to be considered.

It behoves this court, in every case, more especially in this, to examine into its jurisdiction with scrutinizing eyes; before it proceeds to the exercise of a power which is controverted.

The first step in the performance of this duty is the inquiry whether the record is properly before the court.

It is certified by the clerk of the court, which pronounced the judgment of condemnation under which the plaintiff in error is imprisoned; and is also authenticated by the seal of the court. . It is returned with, and annexed to, a writ of error issued in regular form, the citation being signed by one of the associate justices of the supreme court, and served on thegovr ernor and attorney-general of the state, more than thirty days before the commencement of the term to which the writ of error was returnable.

The judicial act (sec. 22, 25, 2 Laws U. S. 64, 65), so far as it prescribes the mode of proceeding, appears to have been literally pursued.

In February 1797, a rule (6 Wheat Rules) was made on this subject, in the following words: “It is ordered by the court, that the clerk of’the court to which any writ of error shall be directed, may make return of the same by transmitting a true *537copy of the record, and of all proceedings in the same, under his hand and the seal of the court.”

This.has been done. But the signature of the judge has not been added to that of the clerk. . The law does not require it. The rule doés not require it.

In the case of Martin v. Hunter’s Lessee, 1 Wheat. 304, 361, an exception was taken to the return of the refusal of the state court to enter a prior judgment of reversal by this court; because it was .not made by the judge of the state court to which the' writ was directed: but the exception was overruled, and . the return was held sufficient. In Buel v. Van Ness, 8 Wheat. 312, also a writ of error to a state court, the record was authenticated in the same manner. No exception was taken to it. These were civil cases. But it has been truly said at the bar, that, in regard to this process, the law makes no distinction between a criminal and civil case. The same return is required in both. If the sanction of the court cpuld be necessary for the establishment of this position, it has been, silently given.

M’Culloch v. The State of Maryland, 4 Wheat. 316, was a qui tam action, brought to recover a penalty, and the record was authenticated by the seal of the court and the signature of the clerk, without that of a judge; Brown et al. v. The State of Maryland, was an indictment for a fine and forfeiture. The record in this case, too, was authenticated by the seal of the court and the certificate of the clerk. The practice is both ways.

The record, then, according to the judiciary act, and the rule and. the practice of the court, is regularly before us. The more important inquiry is, does it exhibit a case cognizable by this tribunal ?

The indictment charges the plaintiff in error, and others, being white persons, with the offence of “ residing within the limits of the Cherokee nation without a license,” and “without having takén the oath to support and defend the' constitution and laws of the state of Georgia.”

The defendant in the state court appeared in proper person, and filed the following plea:

“ And the said Samuel A. Worcester, in his own proper person, comes and says, that this court ought not to take fur*538ther cognizance of the action and. prosecution aforesaid, because, he says, that, on the 15th day of July in the year 1831, he .was, and still is, a resident in the Cherokee nation; and that the said supposed crime or crimes, and each of them, were committed, if'committed at all, at the town of New Echota, in the said Cherokee nation, out of the jurisdiction of this court, and not'in the county Gwinnett, or elsewhere, within the jurisdiction of this'court: and this defendant saith, that he is a citizen of the state of Vermont, one of the United States of America, atid that he entered the'aforesaid. Cherokee nation in the capacity of a duly authorised missionary of the American Board of Commissioners for Foreign Missions, under the authority of the president of the United. States, and has not since been required by him to leave it: that he was, at the time of his arrest, engaged in preaching the gospel to the Cherokee Indians, and in translating the sacred scriptures into their language, with the permission and approval .of the said Cherokee nation, and in accordance with the humane policy of the government of the United States for the civilization and improvement of the Indians; and that his residence there, for this purpose, is the residence charged, in the aforesaid indictment: and this defendant further saith, that this prosecution the state of Georgia ought not to haye or maintain, because, he saith, that several treaties have, from time tó time, been entered into between the United States and the Cherokee nation of Indians,- to wit, at Hopewell, on the 28th day of November 1785; at Holston, on the 2d day of July 1791; at Philadelphia, on the 26th day of June 1794; at Tellico, on the 2d day of October 1798; at Tellico, On the 24th day of October 1804; at Tellico, on the 25th day of October 1805; at Tellico, dn the 27th day of October 1805'; at Washington city, on the 7th day of January 1805; at Washington city, on the 22d day of. March 1816; at the Chickasaw Council House, on the 14th day of September 1816; at the Cherokee Agency, on the 8th day of July 1817; and at Washington city, on the 27th day of February 1819: all which trealiés have been duly ratified by the senate of the United States of America; and, by which treaties, the United Stales of .America'.asknowlédge the 3aid Cherokee nation to be a sovereign nation, authorised io govern themselves, and all persons- who have- settled within their territory, free from any right of legislative interference by the several states composing *539the United States of America, in reference to acts done within their own territory; and, by which treaties, the whole .of the territory -now occcupied by the Cherokee nation, on the east of the Mississippi, has been solemnly guarantied to them; all of which treaties are existing treaties at this day, and in full force. By these treaties,and particularly by the treaties of Hopewell and Holston, the aforesaid territory is acknowledged to lie without the jurisdiction of the several states composing the union of the United States; and, it is thereby specially stipulated, that the citizens of the United States shall not enter the aforesaid territory, even on a visit, without a passport from the governor of -a state, or from some one duly authorised thereto, by the president of the United States: all of which will more fully and at large appear, by reference to the aforesaid treaties. And this defendant saith, that the several acts charged in the bill of indictment were done, or omitted to be done, if at all, within the said territory so recognized as belonging to the said nation, and so, as aforesaid,, held by them, under the guarantee of the United States: that, for those acts, the defendant is. not amenable to the laws of Georgia, nor to the jurisdiction-of the courts of the said state; and that the laws of the state of Georgia, which profess to add the said territory to the several adjacent counties of the said state, and to extend the laws of Georgia over the said territory, and persons inhabiting the same; and, in particular, the act on which this indictment against this defendant is grounded, to wit, {an act entitled an act to prevent the exercise of assumed and arbitrary power, by all persons, under pretext of authority frond the Cherokee Indians, and their laws, and to prevent white persons from residing within that part of the chartered limits of -Georgia occupied by the Cherokee Indians, and to provide a guard for the protection of the gold mines, and to enforce the laws of. the state within the. aforesaid'territor.y/ are repugnant to the aforesaid treaties; which, according to the. constitution of the United States, compose a part of the supreme law of the land; and that these laws of Georgia are, therefore, unconstitutional, void, and of no effect; that the said laws of Georgia are also unconstitutional and void, because they impair the obligation of the vaiious. contracts formed by and between the aforesaid Cherokee nation and the said United States of America, *540as above recited: also, that the said laws of Georgia are unconstitutional and void, because they interfere with; «and attempt to regulate and control the intercourse with the said Cherokee nation,, which, by the said constitution, belongs exclusively to the congress .of the United States; and because the said laws are repugnant to the st'atute'of the United States, passed on the A— day of- March 1802, entitled ‘ an act to regulate trade and intercourse with the Indian tribes, and to preserve peace on.the frontiers:’ and that, therefore, this court has no jurisdiction to cause this defendant to make further or other answer to the said bill of indictment, or further,to try and punish this defendant for the said supposed offence or offences alleged in the bill of indictment, or any of them: and, therefore, this defendant prays judgment whether he shall be held bound to answer further to said indictment. ”

This plea was overruled by the court.. And the prisoner, being arraigned, plead not guilty. The jury found a verdict against him, and the court sentenced him to hard labour, in the penitentiary, for .the term of four years.

By overruling this plea, the court decided that the matter it contained was not a bar to the action. The plea, therefore, must be examined, for the purpose of determining whether it makes a case' which brings.the party within the provisions of the twenty-fifth section of the “act to establish the judicial courts of the United States.”

The plea avers, that the residence, charged in the indictment, was under the authority of the president of the United States, and with the permission and approval of the Cherokee nation. That the treaties, subsisting between the United States and the Cherokees, acknowledge their right as a sovereign nation to govern, themselves and all persons who have settled within their-territory, free from any right of legislative interference by the several states composing the United States of America. • That the act under "which the prosecution was instituted is repugnant to the said treaties, and is, therefore, unconstitutional and void. That the said act is, also, unconstitutional; because it interferes-with, and'attempts to regulate and control, the intercourse with the Cherokee nation, which, belongs, exclusively, to congress;- and, because, also, it is re-, pugpant to the statute of the United States, entitled “ an act to *541regulate trade arid intercourse with the Indian tribes, and to preserve peace on the frontiers.”

Let the averments of this plea be compared with the twenty-fifth section of the judicial act.

That section enumerates the cases in which the final judgment or decree of a state court may be revised in the supreme court of tixe United States. These'are, ei where is drawn in question the validity of a treaty, or statute of, or an authority exercised under, the United States, and the decision is against their validity; dr where is drawn in question the validity of a statute of, or an authority exercised under any state, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favour of such their validity; or where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption, specially set up or claimed by either party under such clause of the .said constitution, treaty, statute or commission.”

The indictment and plea in this case draw in question, we think, the validity of the treaties ma'de by the-United States with the Cherokee Indians; if not so, their construction is certainly drawn. in. question; and the decision has been, if not against their validity,. “ against the right, privilege or exemption, specially set up and claimed under them.” They also draw into question the validity of a statute of the state of Georgia, “ on the ground of its being repugnant to the constitution, treaties and laws of the United States, and the decision is in favour of its validity.”

It is, then, we think, too clear for controversy, that the act of congress, by which this court is constituted, has given it the power, and of course imposed on it the, duty, of exercising jurisdiction in this case. This duty, however unpleasant, cannot be avoided. Those who fill the judicial department have no discretion in selecting the subjects to be- brought before them. We must examine the defence set up in this plea. We must inquire and decide whether the act of the legislature of Georgia, under which ihe plaintiff in error has been prosecuted and condemned, be consistent with, or repugnant to, the constitution, laws and treaties of the -United States.

*542It has. been said at the bar, that the acts of the legislature of ''Georgia seize On the whole Cherokee country, parcel it out .among the neighbouring counties of the state,extend her code over the whole country, abolish its institutions and its laws, ánd annihilate its- political existence.

If this.be the general effect of the system, let us inquire into the effect of the particular statute and section on which the indictment is founded.

It enacts that “ all white persons, residing within the limits of the Cherokee nation on the 1st day of March next, or at any time thereafter, without a license or permit from his excellency the governor, or from such agent as his excellency the governpr shall authorise to grant such permit or license, and who shall not have taken the oath hereinafter required, shall be guilty of a high misdemeanour, and, upon conviction thereof, shall be punished by confinement to the. penitentiary, at hard labour, for a term not less than four years.”

The eleventh section authorises the governor, should he deem it necessary for the protection of the mines,, or the enforcement of the laws in force within the Chérokee nation, to raise and organise a guard,” &c.

The thirteenth section enacts, “ that the said guard or any member of them,-shall be, and they are hereby authorised and empowered to arrest any. person legally charged with or detected in a violation of the laws of this state, and to convey, as soon as practicable, the person so arrested, before a justice of the peace, judge of the superior, or justice of inferior court of this state, to be dealt with according to law.” .

The extra-territorial power of every legislature being limited ,in its action, to its own citizens or subjects, the very passage of this act is an assertion of jurisdiction over the Cherokee nation, and of the rights and powers consequent on jurisdiction.

The first step, then, in the inquiry, which the constitution and laws impose on this court, is an examination of the fight-fulness of this, claim.

America, separated from Europe by a wide ocean, was inhabited by a distinct people, divided into separate nations, independent of each other and of the rest of the world, háv'íng ihstitutions of their own, and governing themselves by their *543own laws. It is difficult to comprehend the proposition; that the inhabitants of either quarter of the globe could have rightful original ■ claims of dominion over the inhabitants of the other, or over the lands they occupied; or that the discovery of either by the other should give the discoverer rights in the country.discovered, which annulled the nre-ekisting rights of its.ancient possessors.

After lying concealed for a series of ages, the enterprise of Europe, guided by nautical science, conducted some of her adventurous sons into this western world. They found it in possession of a people who had made small progress in agriculture or manufactures, and .whose general employment was-war, hunting, arid fishing.

Did these adventurers, by sailing along the coast; and occasionally landing on it, acquire for the several governments tó whom they belonged, or. by whom they were commissioned, a rightful property in the soil) from the Atlantic to the Pacific; or rightful dominion over the numerous people who occupied it? Or has nature, or the great Creator of all things, conferred these rights over hunters and fishermen, on agriculturists and manufacturers?

But power, war, conquest, give rights, which, after.possession, are conceded by the world; and which can never be controverted by those on whom they descend. We proceed, then, to the actual state of things, having glanced at their origin; because holding it in our recollection might shed some light on existing pretensions.

The great maritime powers of Europe discovered and visited different parts of this continent at nearly the same time. The object was too immense for any one of them to grasp the whole; and the claimants were too powerful to submit to the exclusive or unreasonable pretensions of any single potentate. To avoid bloody conflicts,'which mightterminate disastrously to all; it was necessary for the nations of Europe to establish somej>.rinciple which all would acknowledge, and which should decide their.respective rights as. between themselves. This principle, suggested by the actual state of things, was, “ that discovery gave title- to the government by whose subjects or by whose authority it was made, against all other European *544governments, which title might be consummated by possession.’’ 8 Wheat. 573.

This principle, acknowledged by all Europeans, because it was the interest of all to acknowledge it, gave to the nation making the discovery, as its inevitable consequence, the sole right of acquiring the soil and of making settlements on it. It was an exclusive principle which shut out the right of competition among those who had agreed to it¿ not one which could annul the previous rights of those who had not agreed to it. It regulated the right given by discovery among the European discoverers; but could not affect the rights of those already in possession, either as aboriginal occupants, or as occupants by virtue of a discovery made before the memory of. man. It gave the exclusive right to purchase, but did not found that right on a denial of the right of the possessor to sell.

The relation between the Europeans and the natives was determined in each case by the particular government which asserted and could maintain this pre-emptive privilege in the particular place. The United States succeeded to all the .claims of Great Britain, both territorial and political; but no attempt, so far. as is known', has been made to enlarge them. So far as they existed merely in theory, or were in their .nature only exclusive of the claims of other Europeap nations, they still retain their original character, and remain dormant. • So far as they have been practically exerted, they exist in fact, are understood by both parties, are asserted by the one, .and admitted by the other.

Soon after Great Britain determined on planting colonies in America, the king granted charters to companies of his subjects who associated for the purpose of carrying the views of the crown into effect, and of enriching th.emselves. The first of these charters was made before possession was taken of any part of the country. They purport, generally, to convey the soil, from the Atlantic to the South Sea. This soil was occupied b£ numerous and warlike nations, equally willing and able to defend their possessions. The extravagant and absurd idea, that the feeble settlements made on the sea coast, or the companies under whom they were made, acquired legitimate power by them to govern the people, or occupy the lands from *545sea to sea,-did not enter the mind of any msfh. They were well understood to convey the title which, according to the' common law of European sovereigns respecting America, they might rightfully convey, and no more. . This was the exclusive right of purchasing such lands as. the natives were willing to sell. The crown could not be understood to grant what the crown did not affect to claim; nor was it so understood.

The power, of making war is conferred by these charters on the colonies, but defensive war alone seems to have been contemplated. In the first- charter to the first and second colonies, they are empowered, “for their several defences, to encounter, expulse, repel, and resist, all persons who shall, without-license,” attempt to inhabit “within the said precincts and limits of the said several colonies, or that shall enterprise or attempt at any time hereafter the least detriment or annoyance of the said several colonies or plantations. ”

The charter to Connecticut concludes- a general power to make defensive war with these terms: “ and upon just causes to' invade and destroy the natives or other enemies -of the said colony.”

The same power, in the same- words, is conferred on the government of Rhode Island.

This power to repel, invasion, and, upon just cause, to invade and destroy the natives, authorizes offensive as well as defensive war, but only “on just cause.” The very terms imply the existence of a country to be invaded, and of an enemy who has given just cause of war.

The charter to William Penn contains the following recital: “and because, in so remote a country, near so many barbarous nations, the incursions, as well of the savages themselves, as of other enemies, pirates, and robbers, may probably be feared, therefore we have given,” &c.. The instrument then confers the power of war.

These barbarous nations, whose incursions weré feared, and to repel whose incursions the power to make war was given, .were surely not considered as the subjects of Penn, or occupying his lands during his pleasure. .

The same clause is introduced into the charter to Lord Baltimore.

*546The charter to Georgia professes to be granted for the charitable purpose of enabling poor subjects to gain a comfortable subsistence by cultivating lands in the American provinces, “at present waste and desolate.” It recites: “and whereas our provinces in North America have been frequently ravaged by Indian enemies, more especially that' of South Carolina, which, in the late war by the neighbouring savages, was laid waste by fire and sword', -and great numbers of the English inhabitants miserably massacred; and our loving Subjects, who now. inhabit there, by reason of the smallness of their numbers, will, in case of any new war, be exposed to.tbe.like calamities, inasmuch as' their whole southern frontier contiuueth unsettled, and lieth open to the said savages.”

These motives for planting the new colony are incompatible with the lofty ideas of granting the soil, and all its inhabitants from sea to sea'. They demonstrate the truth, that these grants asserted a title against Europeans only, and were considered as blank pápér so far as the rights of the natives were concerned. The power of war is given only for defence, not for conquest.

The .charters contain passages showing one of their objects to be the civilization of the Indians, and their conversion to Christianity — -objects, to be accomplished by conciliatory conduct and good example; not by extermination.

•' The. actual state of things, and the practice of European nations, on so much.of the American continent as lies between the Mississippi and the Atlantic, .explain, their claims, and the charters they granted. Their pretensions unavoidabty-interfered with each other; though the .discovery of one was admitted by all to exclude the claim of any other, the extent of that discovery was the subject of unceasing contest.. Bloody conflicts arose between them, which gave importance and security to the neighbouring*nations. Fierce and warlike in their character,'théy might be formidable enemies, or. effective friends. Instead of rousing-their resentments, by asserting claims to their lands, or to dominion over their persons, their alliance was sought by flattering professions, and purchased by rich presents. The English, the French, and the Spaniards, were equally competitors for their friendship and their aid. Not well acquainted with the exact meaning of *547words, nor supposing it to be material whether they were called the subjects, or the children of the':r father in Europe; lavish in professions of duty and affection, in return for the rich presents they received; so long as their, aotugj independence was untouched, and their right to self government acknowledged, they were willing to profess dependence on the power which furnished supplies of which they were in.absolute need, and restrained dangerous intruders from entering their country: and this-was probably the sense in which the term was understood.by them.

Certain it is, that our history furnishes no example, from the first settlement of our country, of any attempt on the part of the crown to interfere with the internal affairs of the Indians, .farther' than to keep out the agents of foreign powers, who, as traders' or otherwise, might seduce them into foreign alliances. The king purchased their lands when they wére willing to-sell, at a price they were' willing to take; but never coerced a surrender of them. He also purchased their alliance and dependence by subsidies; but never intruded into the interior of their affairs, or interfered with their self government, so. far as respected themselves only.

The general views of Great Britain, with regard to the Indians, were detailed by Mr Stuart, superintendent, of Indian affairs, in a speech delivered at Mobile, in presence of several persons of distinction, soon after the peace'of 1763. Towards the conclusionhe says, “lastly, I inform yóuthatit is the king’s order :to all his governors and subjects, to treat Indians with. justice and humanity, and to forbear all encroachments on the territories allotted to them; accordingly, all individuals are prohibited from purchasing any of your lands; but, as,you know that, as your white brethren cannot feed you when you visit them unless you give them ground to plant, it is expected that you wiil cede lands to the king for that purpose. But, whenever you shall be pleased to surrender any of your territories to his majesty, it must be done, for the futhre, at a public meeting of your nation, when the governors of the provinces, or the superintendent shall be present, and obtain the consent of all your people. The boundaries of your hunting grounds will be accurately fixed, and no settlement permitted to be made upon them. As you may be assured that all treaties. *548with your people'will be faithfully kept, so it is expected that you, also, will be careful strictly to observé them.” ,

The proclamation issued by the king of Great Britain, in 1763, soon after the rátification of the articles of peace, forbids the governors of any of the colonies to grant warrants of survey, or .pass patents upon any lands whatever, which, hot having been ceded to,, or purchased by, us (the king), as aforesaid, aré reserved to the said Indians, or any of them.-

The proclamation proceeds: “and-we do further declare it to be our royal will and pleasure, for the present, as aforesaid, to reserve, under our sovereignty, protection, and dominion, for the use of the said Indians, all the lands and territories lying to the westward of the sources of the rivers which .fall into the sea, from the west and northwest as aforesaid: and we do hereby strictly forbid, on pain of our displeasure, all our loving subjects from making any purchases or 'settlements whatever, or taking possession of any of the lands above reserved, without our special leave and license for that purpose first obtained.

“ And we do’ further strictly enjoin-and require all persons whatever, who have, either wilfully or inadvertently, seated themselves upon any lands within the countries above described, or upon any other lands which, not having been ceded to, or purchased; by us; are still reserved to the said Indians, as aforesaid, forthwith to remove themselves from such settlements.”

"A proclamation, issued by Governor Gage,' in 1772, contains the following passage: “ whereas many persons, contrary to the positive orders of, the king, upon this subject, have undertaken to make settlements beyond the boundaries fixed by the treaties made with the Indian nations, which boundaries ought to serve as. a' barrier between, the whites and the sa:d nations; • particularly on the Ouabache.” The proclamation orders such persons to quit those countries without delay.

Such was - the policy of Great Britain towards the Indian nations inhabiting the territory from which she excluded all other Europeans; such her claims, and such her practical exposition of the charters she had granted: she considered them as nations capable of maintaining the relations of peace and .war; of governing themselves, under her protection; and she *549made treaties with them, the obligation of which she acknowledged.

This was the settled state' of things when the war of. our revolution commenced. The- influence of Our enemy was established;- her resources enabled her to keep up that influence; and the colonists had much cause for the apprehension that the Indian-nations would, as the’allies of ¡Great Britain] add their arms to hers. This, as was to be expected, became an object of great solicitude to congress, Far from advancing a claim to their lands, or asserting any right of dominion over them, congress resolved “ that the securing and preserving the friendship of the Indian nations appears to be- a-subject.of the utmost moment to these colonies.”

The. early journals of congress exhibit the most ánxious desire to conciliate the Indian nations. Three Indian departments were established; and commissioners appointed in each, “ to treat with the. Indians.in their respective departments,'in the name and on the behalf -of the United Colonies, in order to preserve peace and friendship with the said Indians, and to prevent their taking-any part in-the present commotions.”

The most strenuous exertions were made to procure those supplies on which Indian friendships were supposed to depend; and every thing which .might excite hostility was avoided..

The first treaty was made .with the Delawares, in September 1778.

The language-of equality in which it is drawn, evinces the-temper with which the negotiation was undertaken,, and the opinion which then prevailed in the United States.

“ 1. That all offences or acts of hostilities, by one or either-.of the contracting parties against the other, be mutually forgiven, and buried in -the depth of oblivion,- never more to be. had in. remembrance.

“ 2. That a perpetual peace and friendship shall, from henceforth, take place and subsist between the contracting parties aforesaid, through all succéeding generations:'and if .either of the parties are-.engaged in a just and necessary war, with .any other nation.,or nations, that then each shall assist the other, in due proportion’to their abilities, till their enemies are brought to reasonable terms of accommodation,” &c.

3. The third article stipulates, among other, things, a free *550passage for the American troops through the Delaware nation'- and engages that they shall be furnished with provisions and other necessaries at their value.

“ 4. For the better security of the peace and friendship now entered into by the contracting parties against all 'infractions of the. Same by the citizens of either party, to the prejudice of the other, neither party shall proceed to the infliction of pun-' ishments on the citizens of the other, otherwise than by securing the offender or offenders, by imprisonment, or any other competent means, till a fair and impartial trial can be hád by judges or juries of both parties, as near as can be to the laws, customs and usages of the contracting parties, and natural justice,” &c.

•5. The fifth article regulates the trade between the contracting parties, in a manner entirely equal.

6. The sixth article is entitled to peculiar attention, as it contains a disclaimer of designs which were, at that time, ascribed to the United Sta .es, by their enemies, and from the imputation of 'which- congress was then peculiarly anxious to free the government. It is in- these words; “Whereas the enemies of the United' States have endeavoured, by every artifice in their power, to possess the .Indians in general with án opinion that it is the design of the states aforesaid to extirpate the Indians, and take possession of their country: to obviate such false suggestion the Unitéd States do engage to guaranty to the aforesaid nation of Delawares, and.their heirs, all their territorial rights, in the fullest and most ample manner, as it hath been bounded by former treaties, as long as.the said Delaware nation sháll abide by, and hold fast the chain of friendship now entered into.”

The parties further agree, -that other tribes, friendly to the interest of the United States, may be invited to form a state, whereof the Delaware nation shall be the heads, and have a representation in congress.'

This treaty, in its language, and in its provisions, is formed, as near as may be, on the model of treaties between the crowned heads ,of Europe.

.The sixth article shows how congress then treated the injurious calumny of cherishing designs' unfriendly to the political amd civil rights of the Indians.-

*551During the war of the revolution, the Cherokees took part with the British. After its termination, -the United States, though desirous of peace, did not feel its necessity so strongly as while the war continued. Their political situation being changed, they might very well think it advisable to assume.a higher tone, and to- impress on the Cherokees the same respect for congress which was before felt for the king of Great Britain. This may account for the language of the treaty of Hopewell. There is the more reason for supposing that the Cherokee chiefs were not very critical judges of the language, from the fact that every one makes his mark; no chief was capable of signing his name. It is probable-the .treaty was interpreted to them.

•The-treaty is introduced with the declaration, that “the commissioners plenipotentiary of the United States give peace to all the Cherokees, and receive them into the favour and protection of the United States of America, on the following conditions.”

When the United States gave peace, did they not.also receive it? Were not both'parties desirous.of it? If we-consult the history of the day, does it not inform us that the United States were at least as anxious to obtain it as. the Cherokees? We may ask, further: did the Cherokees come to the .seat of the. American government to solicit peace; or, did the American commissioners go to them to Obtain it? The treaty was made at Hopewell, not at New York. The word “ give,” then, has no real importance attached tó it,

The first and second articles stipulate for. the mutual restoration of prisoners, and are of course equal.

The third article acknowledges the Cherokees to be under the protection of the United States of America, and of no other power.

This stipulation is found in Indian treaties, generally. It was introduced into their treaties with Great Britain; and may probably be found in those with other European powers-. Its origin may be traced to the nature of their connexion with those powers; and its true meaning is discerned in their relative situation.

The general law of European . sovereigns, respecting their claims in America, limited, the intercourse of Indians, in a *552great degree, to the particular potentate whose ultimate right pf domain was acknowledged by the others. This was the general state of things in time of peace. It was sometimes changed in war. The consequence was, that their supplies were derived chiefly from that nation, and their trade confined to it. Goods, indispensable to their comfort* in the shape of presents, were received from the same hand. What was of still more importance, the strong hand of government was interposed to restrain the disorderly and licentious from intrusions info their country, from encroachments on their lands, and from those acts of violence which were often attended by reciprocal murder. The Indians perceived in this protection only what was beneficial to themselves — an engagement to punish aggressions on them. It involved, practically, ho claim to their lands, no dominion over their persons. It merely bound the nation to the British crown, as. a dependent ally, claiming the protection óf a powerful friend and neighbour, and receiving the advantages of that protection, without involving a sunsnder of their national character.

This is the true meaning of the stipulation, and is undoubtedly the sense in which it was made. ■ Neither the British government, nor the Cherokees, ever understood it otherwise.

The same stipulation entered, into with the United States, is undoubtedly to be construed in the same manner. They receive the Cherokee nation into their favour and protection. The Cherokees acknowledge themselves to be under the protection of the United States, and of no other power. Protection does not imply the destruction of the protected. The manner in which this stipulation was understood by the American government, is explained by the language and acts of our first president.

The fourth article draws the boundary between the Indians ahd the citizens of the United States. But, in describing this boundary, the term “ allotted” and the term " hunting ground1’ are used.

Is it reasonable to suppose, that the Indians, who could not write, and most probably could not read, who Certainly were not critical judges of our language, should distinguish the word “allotted” from the words “marked out.” The actual subject of contract was the dividing line between the two nations; *553and their attention may very well be supposed to have been confined to that subject. ■ When, in fact,, they were ceding lands to. the United States, and describing the extent of their cession, it may very well be supposed that they might not understand the term employed, as indicating that, instead of granting, they were receiving lands. If the term would admit of no other signification, which is not conceded, its being misderstood is so apparent, results so necessarily from the whole transaction; that it must, we think, be taken in the sense in which it was most obviously used.

So with respect to the words “ hunting grounds. ” Hunting. was at that time the principal occupation of the Indians, and their land was mere used for that purpose than for any other. It could not,, however, be supposed, that any intention existed! of restricting the full use of the lands they reserved.

To the United States, it could be a matter of no concern, whether their whole territory was devoted to hunting grounds, or whether an occasional village, and an occasional corn field, interrupted, and gave some variety to the scene.

These, terms had been used in their treaties with Great Britain, and had never been misunderstood. They had never been supposed to imply a right in the British government to take their lands, or to interfere with their internal government.

The fifth article withdraws the protection of the United States from any citizen who has settled, or shall settle, on the ■lands allotted to the Indians, for their hunting grounds; and stipulates .that, if he shall not remove within six months the Indians may punish him.

The sixth and seventh articles stipulate for the punishment of the citizens of either country, who may commit offences on or ágainst the citizens of the other. The only inference to be drawn from them is, that the United States considered the Cherokees as a nation.

The ninth article is in these words: “for the benefit and comfort of the Indians, and for the prevention of injuries or oppressions on the part of the citizens or Indians, the United States, in congress assembled, shall have the sole and exclusive right of regulating the trade with the Indians, and managing .all their; affairs, as they think proper.”

To construe the expression “managing all their affairs,” *554into a surrender of self-government, would be, we think, a perversion of their necessary meaning, and a departure frofn the construction which has been uniformly put on them. The great subject of the article is the Indian trade. The influence it gave, made it desirable that congress should possess it, . The commissioners brought forward the claim, with the profession that their motive was “the benefit and comfort of the Indians, and the prevention of injuries or oppressions. ” This may be true, as respects the regulation of their' trade, and' as respects the regulation of all affairs connected with their trade, but cannot .be true, as respects the management of all their affairs. The most important of these, aré the cession of their lands, and security against intruders on them. I's it credible, that they should have considered themselves as surrendering to the United States the right to dictate their future eessions, and the terms on which they should be made?, or to compel their submission to the violence of disorderly and licentious intruders ? It is equally inconceivable that they could have supposed themselves, by a phrase thus slipped into an article, on another and most interesting subject, to have divested themselves of the right of' self-government on subjects not connected with trade. .Such a measure could not be for their benefit and comfort,” or for “the prevention of injuries and oppression.” Such a construction would be inconsistent with the spirit of this and of all subseqúenMreaties; especially of those articles which recognise the right of the Cherokees to declare hostilities, and to make war. It would convert a treaty of peace covertly» into an act, annihilating the political existence of one of the parties.'' Had such a result been intended, it would have been openly avowed. • •

This treaty contains a few terms capable of being used in a sense which could not have been intended at the time, and which is inconsistent with the practical construction which has always been put on them; but its essential articles treat the Cherokees as a nation capable of maintaining the relations of peace and war; and ascertain the boundaries between them and the United States.

The treaty of Hopewell seems not to hav¿ established a solid-peace. To accommodate the differences still existing between the state of Georgia and the Cherokee nation, the treaty of *555Holston was negotiated in July 1791. The existing constitution of the United States had been then adopted, and the government, having more intrinsic capacity to enforce its just claims, was perhaps less mindful of high sounding expressions, denoting superiority. We hear no more of giving peace to the Cherokees. The mutual desire of establishing permanent peace and friendship, and of removing all causes of war, is honestly avowed, and, in pursuance of this desire, the first article declares, that there shall be perpetual peace and friendship between all the citizens of the United States óf America, and all the individuals composing the Cherokee nation.

The second article repeats the important acknowledgement, that the Cherokee nation is under the protection of the United' States of America, and of no other sovereign whosoever.

The meaning of this has been already explained. The Indian nations were, from their situation, necessarily dependent on some foreign potentate for the supply of their essential wants, and for their protection from lawless and injurious intrusions into theit country. That power was naturally termed their protector. They had been arranged under the protection of Great Britain: but the extinguishment of the British power in their neighbourhood, and the establishment of that of the United States in its place, led naturally to the declaration, on the part óf the Cherokees, that they were under the protection of the United. States, and of no other power. They assumed the relation with the United States, which had before subsisted with Great Britain.

This relation -was that of a nation claiming and receiving the protection of one more powerful: not that of individuals abandoning their national character, ¿nd submitting as subjects to the laws of a master.

The third article contains a perfectly equal stipulation for the surrender of prisoners.

The fourth article declares, that “the boundary between the United States and the Cherokee nation shall be as follows: beginning,” &c.' We hear no more, of “allotments” or of hunting grounds.” A boundary is described, between nation and nation, by mutual consent. The national character óf each; the abjility of each to establish this boundary, is acknowledged by the other. To preclude for ever all disputés, it is agreed *556thatitshall .be plainly marked by commissioners, to be appointed by each party; and, in order to extinguish for ever all claim of the Cherokees to the ceded lands, an additional consideration is to be paid by the United States. For'this additional consideration the Cherokees release all right to the ceded -land, for ever.

By the fifth article, the Cherokees allow the United States a road through their country, and the navigation of the Tennessee river. The acceptance of these cessions is an acknowledgement of the right of the Cherokees to make or withhold them.

By the sixth article, it is agreed, on the part of the Cherokees, that the United States shall have the sole and exclusive, right of regulating-their trade. No claim'is made to the management of all their affairs, This stipulation has already been explained. The observation may be repeated, that the stipulation is itself, an admission of their right to make or refuse it.

By the seventh article the United States solemnly guaranty to the Cherokee nation all their lands not hereby ceded.

The eighth article relinquishes to the Cherokees any citizens of the United States who may settle on their lands; and the ninth forbids any citizen of the United States to hunt on theif lands, or to enter their country without a passport.

The remaining articles are equal, and contain stipulations which could be made only with a nation admitted to be capa-, ble of governing itself.

This treaty, thus explicitly recognizing the national character of the Cherokees, and their right of.self government; thus guarantying their lands; assuming the duty of protection, and of course pledging the faith of the United States for that protection; has been frequently renewed, and is now in full force.

To the general pledge of protection .have been added several specific pledges, deemed valuable by the Indians. Some of these restrain the citizens of the United • States from encroachments on the Cherokee country, and provide for thh punishment of intruders.

From the commencement of our government, congress has passed acts to regulate trade and intercourse with the InN'c vvhieh treat them as nations, respect théir rights, and m: ..ifest *557a firm purpose to afford that protection which treaties stipulate. All these acts, and' especially that of 1802, which is still in force, manifestly consider the several Indian nations as distinct political communities, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within those boundaries, which is not only acknowledged, but guarantied by the United States.

In 1819, congress passed an act for promoting those humane designs of civilizing.the neighbouring Indians, which had Jong been cherished by the executive. It. enacts, “ that, for the purpose of providing against the further decline and final ex-tinctionof the Indian tribes adjoining to the frontier settlements of the United States, and' for introducing among them th'e habits and arts of civilization, the president of- the United States shall be, and he is hereby authorized, in every case where he shall judge improvement in the habits and condition Of such Indians practicable, and that the means of instruction can be introducéd with their own Consent, to émploy capable persons, of good moral character, to instruct them in the mode of agriculture suited to their situation; and for teaching their children in reading, writing and arithmetic; and for performing such other duties as may be enjoined, according to such instructions and rules as the president may give and prescribe for the regulation of .their conduct in the discharge of their duties.”

This act avowedly contemplates the preservation of the Indian nations as an object sought by the United States, and proposes to effect this object by civilizing and converting them from hunters into agriculturists. Though the Cherokees had already made considerable progress in this improvement, it cannot be doubted that the general words of the act comprehend them. Their advance in the “ habits and arts of civilization,” rather encouraged perseverance in the laudable exertions still farther to meliorate their condition. This act furnishes strong additional evidence of a settled purpose to fix the Indians-in their country by giving them security at home.

The treaties and laws of the United States contemplate the. Indian - territory as completely separated from that of the states; and provide that all intercourse with them shall be carried, on exclusively by the government of the uniofl.

*558Is this the rightful exercise of power, or is it usurpation?

While these states were colonies, this power, in its utmost extent, was admitted to reside in the crown. When our revolutionaiy struggle commenced, congress was composed of an assemblage of deputies acting under specific powers granted by the legislatures, or conventions of the several colonies. It was a great popular movement, not perfectly organized; por were the respective powers of those who were entrusted with •the management of affairs accurately defined. The necessities •of.our situation produced a general conviction that those measures which concerned all, must be transacted by a body in. which the representatives of all were assembled, and which could command the confidence of all: congress, therefore, was considered as invested with all the powei ^ of war and p'eace, and congress dissolved our connexion with the mother .county, and declared these United Colonies to be independent states. Without any written definition of powers, they employed diplomatic agents to represent the United States at the several courts of Europe; offered to negotiate treaties with them, and did actually negotiate treaties with France. From the same . necessity, and on the same principles, congress assumed the management of Indian affairs; first in the name of these United Colonies; and, afterwards, in the name of the United States. Early attempts were made at negotiation, and to regulate trade with them. These not proving successful, war was carried on under the direction, and with the forces of the United States, and the efforts to make peace, by treaty, were earnest and incessant. The Confederation found congress in the exercise of the same powers of peace and war," in our relations with Indian nations, as with those of Europe.

Such was the state of things when- the confederation was adopted. That instrument surrendéred the powers of peace and war to congress, and prohibited them to the states, respectively, unless a'staie be actually invaded, “ or shall have received certain advice of a resolution being fonfied by some, nation-of Indians to invade such state, and the danger is so imminent as not .to admit-of delay till the United States in congress assembled can'be consulted.77 This instrument also gave the United States ■in congress assémbled the sole and exclusive right of “ regulating the trade and managing all the affairs with the Indians, not *559members of any of the states: provided, that the legislative power of any state within its own limits be hot infringed or violated. ”

The ambiguous phrases which follow thé grant of power to the United States, were so construed by'the states of North Carolina and Georgia as to annul the power itself. The discontents and confusion resulting from these conflicting claims, produced representations to congress, which were referred to a committee, who matde their report in 1787. The report-does not assent to the construction of ’the two states, but recommends an' accommodation, by liberal cessions of territory, or by an admission, on their part, of the powers claimed by congress. The correct exposition of this article is rendered unnecessary by the adoption of our existing constitution. That instrument confers on congress the powers of war and peace; of making treaties, and of regulating commerce with foreign nations, and among the several states, and with the Indian tribes. These powers comprehend all that is required for the regulation of our intercourse with the Indians. They are not limited by any restrictions on their free actions. The shackles imposed on this power, in the confederation, are discarded.

The Indian nations had always been considered as distinct, independent political communities, retaining their ^original natural rights, as the undisputed possessors of the soil,-from time immemorial, with the single exception of that imposed by irresistible power, which excluded them from intercourse with any other European potentate than the first discoverer of the-coast of the particular region claimed: and this, was a restriction which those European potentates imposed on themselves, as well as on the Indians. The very term “ nation,” so generally applied to them, means “ a people distinct from others.” The constitution, by declaring treaties already made, as well, as those to be made, to be the supreme law of the land, has adopted and sanctioned the previous treaties with the Indian nations, and consequently admits their rank among those powers who are capable of making treaties. The words “ treaty” and “ nation” are words of our own language, selected in our diplomatic and legislative proceedings, by ourselves, having each a definite and well understood meaning- We *560have applied them to Indians, as we have applied them to .the other nations of the earth. They are applied to all in the same sense.

Georgia, herself, has furnished conclusive evidence that her former opinions on tips subject concurred with those enter-. tained by hter sister states, and by the government of the United States. Various acts of her legislature have been cited in the argument, including the contract of cession made in the year 1802, all tending to prove her acquiescence in the' universal conviction that the Indian nations possessed a full right to the lands they occupied, until that right should be-extinguished by the United States, with their consent: that their- territory Was separated from that of any state within whose chartered limits they might reside, by a boundary line, established by treaties: that, within their boundary, they possessed rights with which no state could interfere: and that the whole power of regulating the intercourse with them, was vested in the United States. A review of these acts, on the part of Georgia, Would occupy too much time, and is the less necessary, because they have been accurately detailed in the argument at the bar. Her newseriesmf laws, manifesting her abandonment of these opinions, appears to have commenced in December 1828.

In opposition to this original right, possessed by the-undisputed occupants of every country; to this recognition of that right, which is evidenced by our history, in every change through which-we have passed; is placed the charters granted by the monarch of a distant and distinct.region, parcelling out a territory in possession of others whom he could not remove and did not attempt to remove, and the cession made of his claims by the treaty of peace.

The actual state of things at the time, and all history since, explain these charters; and the king of Great Britain, at the treaty of peace; could cede only what belonged to his crown: These newly assexted titles can derive no aid from the articles so often repeated in Indian treaties; extending to them, first,, the protection of Gréat Britain, and afterwards that of the United States. Thesé articles are associated with others, recognizing their title to self government. The very fact of repeated treaties with them recognizes it; and the settled doc*561trine of the law of nations is, that a weaker power does not 'surrender its independence — its right to self government, by associating with a stronger, and taking its protection. A weak state, in order to provide for its safety, may place itself under the protection of one more powerful, without stripping itself of the right of government, and ceasing to be a state. Exam-, pies of this kind are not wanting in Europe, “ Tributary and feudatory states,” says Vittel,.“ do not thereby cease to be .sovereign and independent states, so long as self government and sovereign and independent authority are left.in the administration, of the state.” At the present day, more than one state may be considered as holding its right of self government under the guarantee and protection of one or more allies.

The Cherokee nation, then, is a distinct community occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and-with the acts of congress. Thé' whole intercourse between the United States and this nation, is, by oúr constitution' and laws, vested in the-government of the United States.

The act of the state of Georgia, under which the plaintiff in .error was prosecuted, is consequently void, and the. judgment a nullity. Can this court, revise, and reverse it?

If the objection to the system of legislation, lately adopted by the legislature of Georgia, in relation to the Cherokee nation, was confined to its extra-territorial operation, the objection, though complete,-so far as respected mere right, would give'this court no power over the subject. But it.goes much further. If the review which has been taken be correct, and we think it is, the acts of Georgia are repugnant to the constitution, laws, and treaties of the United States.

They interfere forcibly with-the relations, established between the United States and the Cherokee nation, the regulation of which, according to the settled principles of our constitution, are committed exclusively to the government of the union.

They are in direct hostility with .treaties, repeated in a. succession of years, which mark out the boundary that separates *562the Cherokee country from Georgia; guaranty to them all the land within their boundary; solemnly pledge the faith of the United States to restrain their citizens from trespassing on it; and recognize the pre-existing power of the nation to govern itself.'

They are in equal hostility with the acts of congress for regulating this intercourse, and giving effect to the treaties.

The forcible seizure and abduction of the plaintiff in error, who was residing in the nation wi.th its permission, and by authority of the president of the United States, is also a violation of the acts which authorise the chief magistrate to exercise ■this authority.

Will, these powerful considerations avail the plaintiff in error? We think they will. He was seized, and forcibly carried away, while under guardianship of treaties guarantying the country in which he resided, and taking it under the protection of the United States. He was seized while performing, under the sanction of the chief magistrate of the union, those duties which the humane policy adopted by congress had recommended. He was apprehended, tried, and condemned, under colour of a law which has been shown to be repugnant to the constitution, laws, and treaties of the United States. Had a judgment, liable to the same objections, been rendered for property, none would question the jurisdiction of this court-It cannot be less clear when the judgment affects personal liberty, .and inflicts disgraceful punishment, if punishment could disgrace when inflicted' on innocence. The plaintiff in error is not'less interested in the operation of this unconstitutional law than if it affected his property. He is not less entitled to the protection of the constitution, laws, and treaties of his country.

This point has been elaborately argued and, after deliberate consideration, decided, in the case of Cohens v. The Commonwealth of Virginia, 6 Wheat. 264.

. It is the opinion of this court that the judgment of the superior court for the county of Gwinnett, in the state of Geor-r gia, condemning Samuel A. Worcester to hard labour, in the ■penitentiary of the state of Georgia, for four years, was pronounced by that court ünder colour of a law which is void, as being repugnant to the constitution, treaties, and laws of the *563United States, and ought, therefore, to be reversed and annulled.'

Mr Justice' M’Lean.

As this case involves principles of the highest importance, and may lead to consequenpes which shall have ap enduring influence on the institutions of this country; and as there are some points in the case on which I wish to state, distinctly, my opinion, I embrace the privilege of doing so.

With the decision, just given, I concur.

The plaintiff in error was indicted under a law of Georgia, <£ for residing in that part of the Cherokee nation attached, by the laws of said state, to the county of Gwinnett, without a license or permit from his excellency the governor of the state, or from any agent authorised by his excellency the governor to grant such permit or license, and without having taken the oath to support and defend the constitution and laws of the state of Georgia, and uprightly to demean himself as a citizen thereof.”

On this indictment the defendant was arrested, and, on being arraigned before the superior court for Gwinnett county, he filed, in substance, the following,plea:

He admits that, on the 15th of July 1831, he was, and still continued to be, a resident in the Cherokee nation, and that the crime, if any were committed, was committed at the town of New Echota, in said nation, out of the jurisdiction of the court. That he is a citizen of Vermont, and that he entered the Indian country in the capacity of a duly authorised missionary of the American Board of Commissioners for Foreign Missions, under the authority of the president of the United States, and has not since been required by him to leave it. That he .was, at the time of his arrest, engaged in preaching the gospel to the Cherokee Indians, and in translating the sacred Scriptures into their language, with the permission and approval of the Cherokee nation, and in accordance with the humane policy of the government of the United States, for the improvement of the Indians.

He then states, as a bar to .the prosecution, certain treaties made between the United States and the Cherokee Indians, by *564which the possession of the territory, they now inhabit was solemnly guarantied to them; and also a certain act of congress, passed in March 1802, entitled “ aa act to regulate trade and intercourse with the Indian tribes.” He also alleges, that this, subject, by the constitution .of the United States, is.exclusively vested in congress;- arid that the law of Georgia, being repugnant to the constitution of the United States, to the treaties referred to, and to the act of congress specified-, is void, and cannot-be enforced against him.-

This plea was overruled by the court, and the defendant pleaded not guilty.

The jury returned a verdict of guilty; and the defendant was sentenced, by the court, to be kept in close custody, by the-sheriff of the county, until he could be transported to the penitentiary of the. state, and the keeper thereof was directed to receive, him into'custody, and keep him at hard labour in the penitentiary, during the term of four years.

Another individual was included in the same indictment, and joined in the plea to the jurisdiction of the court, and was also included in the sentence; but his name is not adverted to, because the principles of the case are fully presented in the above statement.

To reverse this judgment, a writ, of error Was obtained, which, having been returned, with the record of the proceedings, is now before this court.

The first question which it becomes necessary to examine, is, whether the record- has been duly certified, so as to bring the proceedings regularly before this tribunal.

A writ of error was allowed, in this case, by one of the justices of this court, and the requisite security'taken. A citation was also issued, in the form prescribed, to the state of Georgia, a true, copy of which, as appears by the oath of William Patten, was delivered to the governor, on the 24th day of November last; and another true copy was delivered, on the 22d day of the same month, to the attorney-general of the state.

The recofd was returned by the clerk, under the seal of the court, who certifies that it is a full and complete exemplifica.tion of the proceedings and judgment had' in the case; and he’ *565further certifies, that the original bond, and a copy of the writ of error, were duly deposited and filed in the clerk’s office erf said court, qn the 10th day of November last.

Is it necessary, in such a case, that the record should be certified by the'judge who held the court?

In the case of Martin v. Hunter’s Lessee, which was' a writ .of error to the .court of appeals of Virginia, it was objected that the return to the writ of error was defective, because the record was not so certified; but the 'court, in that case, said, «the forms of process, and the modes of proceeding in the exercise of jurisdiction, are, with few exceptions, left -by the legislature to be regulated and changed as this court may, in its discretion, deem, expedient.” By a rule of this court,the return óf a copy of a record of the proper court, annexed to the writ of error, is declared to be a sufficient compliance with the mandate of the writ. The record, in this case, is duly certified by the clerk of the court of appeals, and annexed to the writ of error. The objection, therefore, which has been urged to the sufficiency of the return, cannot prevail.” — 1 Wheat. 304.

In 9 Wheat. 526, in the case of Stewart v. Ingle and others, which was a writ of error to the circuit court for the district of Columbia, a certiorari was issued, upon a suggestion of diminution in the record, which, was'returned by the clerk with another record; whereupon, a motion was made for a new certiorari,:on the ground that the return ought to Iiave been made, by the judge of the court below, and not by the clerk; The writ of certiorari, it is known, like the writ of error, is, directed to the court.

Mr Justice Washington, after consultation with the judges, stated that, according to the rules and practice of the court, a return made by the clerk was-a sufficient return.

To ascertain what has been the general course of practice on this subject, an examination has been made into the manner in which recqrds have been certified from state courts' to this' court; and it appears that, -in the year 1817, six' causes w.ere certified, in obedience to writs óf error, by the clerk, under the seal of the court. In the year 1819, two were¡ so certiffied, one of them being the case of M’Cullough v. The State of Maryland.

*566In the year 1821, three eases werq so certified; and in the year 1823, there was one. In 1827, there were five, and in the ensuing year, seven.

In the year 1830, there were eight causes so certified, in five of which,, a state was a party on the record. There were three causes thus certified in the year 1831, and five in the present year.

Uuring the above periods, there were only fifteen causes from state courts, where the records were certified by the court or the presiding judge, and one of these was the case of Cohens v. The State of Virginia.

This court adopted the following rule on this subject in 1797:

“ It is ordered by the court, that the clerk of the court to which any writ of error shall be directed, may make, the return of the same, by transmitting a true copy of the record, and of all proceedings in t ie cause, under his hand, and the seal, of the court.”

The [lower of the court to adopt this rule, cannot be questioned: and it seems to have regulated the practice ever since its adoption. In some cases, the certificate of the court, or the presiding judge, has been affixed to the record; but this court has decided, where the question has been raised, that such certificate is unnecessary.

So far as the authentication of the record is concerned, it is impossible to make a distinction between á civil and a criminal case. What may be sufficient to authenticate the proceedings in a civil case, must be equally so in a. criminal one. The verity of the record is of as much importance in the one case as the other..

.This is a question of practice; and it would seem that, if any one point in the practice of this court can be considered as settled, this one must be so considered.

In the progress of the investigation, the next inquiry which seems naturally to arise, is, whether this is a case in which a writ of error may be issued.

By the twenty-fifth section of the judiciary act. of 1789, it is provided, “that a final judgment or decree in any suit in the. highest court, of law or equity of a state, in which a decision in thé suit could be had, where is drawn in question the valid*567ity of a treaty, or statute of, or an authority exercised under, the United States, and the decision is against their validity; or-where is drawn in question the validity of a statute of, or an authority exercised under, any state, on the ground of their being repugnant to the. constitution, treaties, or laws; of the United States, and the decision is in favour of such their validity; or- where is drawn in question the construction of any clause of the constitution, or of a treaty or statute of, or commission held under, the United States, and the decision is against the title, right, privilege, or exemption, specially set up or claimed by either party, under such clause of the said constitution, treaty, statute, or commission, may be re-examined, and reversed or affirmed, in the supreme court of the United States.”

Doubts have been expressed whether a writ of error to a state court is not limited to civil cases. These doubts could not have arisen from reading the above section. Is not a cri. minal case, as much a suit as a civil case. What is a suit, but a prosecution; and can any one suppose that it was the intention of congress, in using the word suit, to make a distinction between a civil prosecution and a criminal one.

It is more important that jurisdiction should be given to this court in criminal than in civil cases, under the twenty-fifth section of the judiciary act. Would it nót be inconsistent,, both with the spirit and letter of this law, to revise the judgment of a state court, in a matter of controversy respecting, damages, where the decision is against a right asserted under the constitution or a law of the United States; but to deny the jurisdiction, in a case where the property, the character, the liberty and.life of a citizen may be destroyed, though protected by the solemn guarantees of the constitution?

But this is not an open question; it has long since been settled by the solemn adjudications of this court. The above' cónstruction, therefore, is sustained both on principle and. authority; The. provisions of the section apply as well to criminal as to civil cases, where the constitution, treaties, or laws of-the United States come in conflict with the laws of a state; and the latter is sustained by the decision of the court.

It has been said, that this court ean have no power to arrest *568the proceedings of a state tribunal in the enforcement of the criminal laws of the state. This is undoubtedly, true, so long as a state court, in the execution of its penal laws, shall not infringe upon the constiiution of the United States, or some treaty or law of the union.

Suppose a state should make it penal' for an officer of the United States to discharge his duties within it's jurisdiction! as, for instance, a land officer,- an officer of the customs, or a postmaster, and punish the offender by confinement in the penitentiary: could not the supreme court "of the United States .interpose their power, and arrest or reverse the state proceedings ? Cases of this kind are so' palpable, that they need only to be stated to gain the assent of every judicious mind. And would not this be an interference with the administration of the criminal laws of a státe ?

This court have repeatedly decided, that they havé no appellate jurisdiction in criminal cases from the circuit courts of the United States: writs of error and appeals are given, from those courts only in civil cases. But, even in those -courts, where the judges áre divided on any point, in a criminal case, the .point may be brought before thitf court, under a general provision in cases o.f division of opinion.

Jurisdiction is taken in the cáse' under consideration exclusively by the provisions of the twenty-fifth section of the law which has been quoted. These provisions, as .has been remarked, apply, indiscriminately, to criminal and civil cases, wherever,a right is claimed under the constitution, treaties, or laws of the United States, and the decision, by the state court, is against such right. In the present case, the decision- was against thé -right expressly set up by the defendant, and it was' made by the highest judicial tribunal of Georgia.

To give jurisdiction .in such a case, this court need look no further than to ascertain whether the right; thus asserted, was decided against by the state court. The case is clear of difficulty on this point.

The name of the state of Georgia is used in this .case, because such was the designation given to the cause jn the state court. No one ever supposed, that the state, in its sovereign capacity, in such a case, is a party to the cause. The form of *569the prosecution here must.be the same as it was in the state court; but so far as the name of the state is used, it is matter of form. Under a rule of this court, notice was given to the governor and attorney-general of the state, because it is a part of their duty to see that the laws -of the state are executed.

In prosecutions for violations of the penal laws of the union, the name of the United States is used in .the same manner. Whether the prosecution be under a federal or state law, the defendant has a right to question the constitutionality of the’ law.

Can any doubt exist as to the power of congress to pass the law, under which jurisdiction is taken in this case? Since its passage, in 17S9, it has been the law of the land; and has been sanctioned by an uninterrupted course of decisions in this court, and acquiesced in by the state tribunals, with perhaps a solitary exception: and whenever the attention of the national legislature has been called to the subject, their sanction has been given to the law by so large a majority as to approach almost to unanimity.

Of the policy of this act there can be as little doubt as of the right of congress to pass it.

The constitution of the United States was formed, not, in my opinion, as some have contended, by the people of the United States, .nor, as others, by the states; but by a combined power, exereised by the people, through their delegates, limited in their sanctions, to the respective states.

Had the constitution emanated from the people, and the states had been referred to,, merely as convenient districts, by which the public expression could be ascertained, the popular vote throughout the union would have been the only rule for the adoption of the constitution. This course was not pursued; and in this fact, it clearly appears that our fundamental law was not formed, exclusively, by the popular suffrage of. the people.

The vote of the people was limited to the respective states in which they resided. So that it appears there was an expression of popular suffrage and state sanction, most happily united, in the adoption of the constitution of the union.

Whatever differences of opinion may exist, as to the means *570by which the constitution was adopted, there would seem to be no ground for any difference as to certain powers conferred by it.

Three co-ordinate branches of the government were established; the executive, legislative, and judicial. These branches are essential to the existence of any free'.government, and that they should possess powers, in their respective spheres, coextensive with each other.

If the executive have not'powers which will enable him to execute the functions of his office, the system is essentially defective; as those .duties must, in such case, be discharged by One of the other branches. This would destroy that balance which is admitted to be essential to the existence of free government, by thé wisest and most enlightened statesmen of the present day.

It is not less important that the legislative power should be •exercised by the appropriate branch of the government, than that the executive duties should devolve upon the proper fuñe-. tionary. And if the judicial power fall Short of giving effect to' the laws of the union, the existence of. the federal government is at an end,

It is in vain,- and worse than in vain, that the national legislature enact laws, if thdse laws are to remain upon the statute book as monuments of the imbecility of the national power. It is in vain that the executive is' called to superintend the execution of the laws, if he have no power to aid in their enforcement.

• Such weakness and folly are, in no degree; chargeable to the distinguished men through whose instrumentality-th,e coRestitution was formed. The power^ given, it is true, an-limited;' and no powers,, which are not expressly given, can bp exercised by the- federal government: but, where given, they are supreme. Within the sphere allotted to them, the co-ordinate branches of the general government revolve, un-. obstructed by any legitimate-exercise of power by the state governments. , The powers exclusively- given to' the federal government are limitations" upon the state authorities. But, with, the exception pf these limitations, the states are supreme; átíd their sovereignty can be no more invaded by the action of -the general government, than the action of the state ;governmentp m arrest or .obstruct the course of the national power.

*571It has been asserted that the federal government is foreign to the state governments; and that it must consequently be hostile -to them. Such an opinion could not have resulted from a thorough investigation of the great principles which lie at the foundation of our system. The federal government is neither foreign to the state governments, nor is it hostile tp them. It proceeds from the same people, and is as much under their control as the state governments.

Where, by the constitution, the power of legislation is exclusively vested in congress, they legislate for the people of the union, and their acts are as binding as are the constitutional enactments of a state legislature on the people of the state. If this were not so, the federal government would existonly in name. Instead of being the proudest monument of human wisdom and patriotism, it would be the frail memorial of the ignorance and mental imbecility of its framers.

In the discharge of his constitutional duties, the federal executive acts upon the people of the union, the same as a governor of a state, in the performance of his duties, acts upon the people of the state. And the judicial power of the United States acts in the same mánner on the people. It rests qpon the same basis as the other departments of the government. The powers of each are derived from the same source, and are.conferred by the same instrument. They have the same limitations and extent.

The supreme court of a state, when required to give effect to a statute of the state, will examine its constitution, which they are sworn to maintain, to see if the. legislative act be repugnant to it; and if a repugnancy exist, the statute must yield to the paramount law.

The same principle-, governs the supreme tribunal of the union. No one can deny, that the constitution of the United States is the supreme law of the land; and consequently, no act of any state legislature, or of congress, which is repugnant to it, can be of any validity.

Now if an act of a state legislature be repugnant to the constitution of the state, the state court will declare it void; and if such act be repugnant to the constitution of the union, or a law made under that constitution, which is declared to be the supreme law of the land, is it not equally void? And, under *572such circumstances, if this court should shrink from a discharge of their duty, in giving effect-to the supreme lasv of the land, would they not violate their oaths, prove traitors to the constitution, and forfeit all just claim, to the public conñdencé?

It is sometimes objected, if the federal judiciary may declare an act of a state legislature void, because it is repugnant to the constitution of the United States, it places the legislation of a state within the power of this court. And might not the same argument be urged with equal force against the exercise of a similar power, by the supreme court of a state. Such an argument must end in the destruction of all constitutions, and the will of the legislature, like the acts of the parliament of Greát Britain, must be the supreme, and only law of the land.

It is impossible to guard an investiture of power so that it may not, in some form, be abused: an argument, therefore, against, the exercise of power', because it is liable to abuse, would go to the destruction of all governments.

The powers of this court are expressly, not constructively, given by the constitution; and within this delegation of power, this court are the supreme court of the people of the United States, and they are bound to discharge their duties, under the same responsibilities as the supreme court of a state; and are equally, within.their powers, the supreme court of the people of each state.

When this court are required to enforce the laws of any state, they are governed by those laws. So closely do they adhere to this rule, that during the present term, a judgment of a circuit court of the United States, made in pursuance of decisions of this court, has been reversed and annulled, because .it did not conform to the decisions of the state court, in giving a construction to a local law. But while this court conforms its decisions to those of the state courts, on all questions arising •under the statutes and constitutions of the' respective states, they are bound to revise and correct those decisions, if they annul, either the constitution of the United States, or the laws made under it.

It appears,-then, that on all questions arising under the laws of a state, the decisions of the courts of such state form a rule for the decisions of this court, and that on all questions arising under the laws of the United States, the decisions of this court *573form a rule for the decisions of the state courts. Is there any thing unreasonable in this? Have not the federal, as well as the state courts, been constituted by the people? Why then should one tribunal more than the other, be deemed hostile to the interests of the people.

In the second section of the third article of the constitution, it is- declared, that “ the judicial power shall extend to all cases, in law and equity, arising under the constitution, the laws of the United States, and treaties made, or which shall be made, tinder their authority.

Having shown that a writ' of error will l¡e in this case, and that the record has been duly certified, the next inquiry that arises is, what are the acts of the United States which relate to the Cherokee Indians and the acts óf Georgia.; • and were these acts of the United States sanctioned by the federal constitution?

Among the enumerated powers of congress, contained in the eighth section of the first article of the constitution, it is dedared u that congress shall have power to regulate commerce with foreign nations, and among the Indian tribes.” By the articles of confederation, which were adopted on the 9th day of July 1778, it was provided “ that the United States, in congress assembled, shall also have the sole and exclusive riglff and power of regulating the alloy and value of coih struck, by their own authority, or by that of the respective states; fixing-the. standard of weights and measures throughout the United States; regulating the trade and management of all affairs with the Indians, not members of any of the states: Provided, that the legislative right of any state, within its own limits, be not infringed or violated.”

As early as June 1775, and before the adoption of the articles of confederation, congress took into their consideration the subject of Indian affairs. The Indian country was divided into three dépaijtmerrts, and the .superintendence of each was committed to commissioners, who were authorised to hold treaties with the Indians, make disbursements of money for their use, and to discharge various.duties, designed to preserve peace and cultivate a friendly feeling with them towards the colo.nies. No person was permitted to trade with them with*574out alicense from one or more of' the commissioners of the respective departments.

In April 1776, it was “ resolved, that the commissioners of Indian affairs in the middlé department, or any one of them, be desired to employ, for reasonable salaries, a minister of the gospel, to reside among the Delaware Indians, and'instruct them in the Christian religion; a school master, to teach their youth reading, writing, and arithmetic; also, a blacksmith, to do the work of the Indians..” • The general intercourse with the Indians continued to be managed under the superintendence of the continental congress.

Qn the 28th of November 1785, the treaty of Hopewell was formed, which was the first treaty made with the Cherokee Indians. The commissioners! of the United States were required to give notice to the executives of Virginia, North Carolina,.South Carolina and Georgia, in order that each might appoint one or more persons to attend the treaty, but they seem to have had no power to act ort the occasion.

In this treaty it is stipulated, that “• the commissioners plenipotentiary of the United States in congress assembled, give peace to all the Cherokees, and receive them into the favour and protection of the United States of America, on the following conditions:”

1. The Cherokees to restore all prisoner's- and property taken during the war.

2. The United States to restore to the Cherokees all prisoners.

3. The 'Cherokees acknowledge themselyes to be under the protection of the United States, and of no other sovereign whatsoever.

4. The boundary line between the Cherokees and the citizens of the United States was-agreed .to as designated.

5. If any person, riot being an Indian, intrude upon the land “ allotted” to the Indians, or, being settled on it, shall refuse to remove within six months after the ratification of the treaty, he forfeits the protection of the United States, and the Indians were at liberty to punish him as they might think proper.

6. The Indians are bound to deliver up to the United States any Indian who shall commit robbery, or other capital crime, on a white person living within their protection.

*575. 7. If the same offence be committed on an Indian by a citizen of the United States, he is to be punished.

8. .It is understood that the punishment of the innocent, under the idea of retaliation, is unjust, and shall not be practised on either side, except where there is a manifest violation of this treaty; and then it shall be preceded, first, by a demand of justice; and, if refused, then by a declaration of hostilities.

“That the Indians may have full confidence in the justice of the United States respecting their interests, they shall have a right to send a deputy of their choice, whenever they think fit, to. congress.”■

The treaty of Holston-was entered into with the same people, on the 2d day of July 1791.

This was a treaty of peace, in which the -Cherpkees again placed themselves under-the protection of the United States, and engaged to hold no treaty with any foreign power, individual state, or with individuals of any state. Prisoners were agreed to be delivered up on both sides; a new Indian boundary was fixed; and -a cession- of land made to the United States on the payment of a stipulated consideration.

A free, unmolested road, wás agreed to be given through the Indian lands, and the free navigation of the Tennessee river. It was agreed that the United States should have the exclusive right of regulating their trade, and a solemn guarantee of their land, not ceded, was made. A similar provision, was made, as to the punishment of offenders, and as to all-persons who might enter the Indian territory, as was contained in thé treaty of Hopew.ell. Also, that reprisal or retaliation shall not be committed, until satisfaction shall have been demanded of the aggressor.

On the 7th day of August 1786, an ordinance, for the regulation of Indian affairs was adopted, which repealed the former system.

In 1794 another treaty was made with the Cherokees, the object of which Was to carry into effect the treaty of Holston.And on the plains of Tellico, on the 2d of October 1798, the CheroKees, in another treaty, agreed to give a right of way, in a certain direction, over their lands. Other engagements were also entered into, which need not be referred to.

Yarious other treaties were made by the United States with *576the Cherokee Indians, by which, among other arrangements, cessions of territory were procured and boundaries agreed on.

. In a'treaty made in 1817, a distinct wish is expressed by the Cherokees, to assume a more regular form of government, in which they are encouraged by the United States. By a treaty held at Washington, on the 27th day of February 1819, a reservation of land is made by the Cherokees for a school fund, which was to be surveyed and sold by the United States for that purpose. And it was agreed, that all white persons, who had intruded on the Indian lands, should be removed.

To give effect to various'treaties with this people, the power of the executive has frequently been exercised; and atone time General Washington expressed a firm determination to resort to. military force to remove intruders from the Indian territories.

On the 30th of March 1802, congress passed an act to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers.

In this act it is provided, that any citizen or resident in the United States, who shall enter into the Indian lands to hunt, or for 'any other purpose, .without a license, shall be subject to a fine and imprisonment. And if any person shall attempt to survey, or actually survey, the Indian lands, he shall be liable to. forfeit a sum not exceeding one thousand .dollars, and be imprisoned not exceeding twelve months. No person is permitted to reside as a trader within the Indian boundaries, without a license or permit. All persons are prohibited, under a heavy penalty, from purchasing the Indian lands; and all such purchases are declared to be void. And it is made lawful for the military force of the United States to arrest offenders against the provisions of the act.

By the seventeenth section, it is provided, that the act shall not be so. construed as to “prevent any trade or intercourse with Indians living on lands surrounded by settlements of the citizens of the'United States; and being within the ordinary jurisdiction of any of the individual states; or the unmolested use of a road, from Washington district to Mero district, or to prevent the citizens of Tennessee from keeping in repair said road.” Nor was the act to be so construed as to prevent per.sons from travelling from Knoxville to Price’s settlement, *577provided they shall .travel in the tract or path which is usually travelled, and the Indians do not object; but if they object, then all travel on this road to be prohibited, after proclamation by the president, under the penalties provided in the act'.

Several acts, having the same object in view, were passed prior to this one; but as they were repealed either before, or by the act of. 1802, their provisions need not be specially noticed.

The acts of the state of Georgia, which the plaintiff in error complains of, as being repugnant to the constitution, treaties, and laws of the United States, are found in two statutes.

The first act was passed the 12th of December 1829; and is entitled “ an act to add the territory lying within the chartered limits of Georgia, and now in the occupancy of the Cherokee Indians, to the counties of Carroll, Dekalb, Gyvinnett and Habersham; and to extend the laws"of the state over ithe same, and to annul all laws made by the Cherokee nation of Indians, and to provide for the compensation of officers serving legal process in said territory, and to regulate the testimony of Indians, and to repeal the ninth section of the act of 1828 on this subject.”

This act annexes the territory of the Indians, within the' limits of Georgia, to the counties named in the title; and extends the jurisdiction of the state over it. It annuls the laws, ordinances, orders and regulations, of any kind, made by the Cherokees, either in council or in any other way, and they are not permitted to be given in evidence in the courts of the state. By this law, no Indian, or the descendant of an Indian, residing within the Creek or Cherokee nation of Indians, shall be deemed a competent witness in any court of the state, to which a white person may be a party, except such white person reside within the nation. Offences under the act a, be punished by confinement in the penitentiary, in some cases not less than four nor more than six years, and in others not exceeding four years.

The second act was passed on the 22d day of December 1830, and is entitled “an act to prevent the exercise of assumed and arbitrary power,- by all persons, on pretext of authority from the Cherokee Indians arid their laws; and to prevent white persons from residing within that part of the *578chartered limits of Georgia, Occupied by the Cherokee Indians; and to provide a guard for the protection of the gold mines, and to enforce the laws of the state within the aforesaid territory.”

By the first section of this act, it is made a penitentiary offence, after the 1st day of February 1831, for any person or persons, under colour or pretence of authority from the said Cherokee tribe, or as headmen, chiefs or warriors of said tribe, to cause or procure, by any means, the assembling of any council or other pretended legislative body of the said Indians; for the purpose of legislating, &c.

They are prohibited from making laws, holding courts of justice, or executing process. And all white persons, after the 1st of March 1831, who shall reside within the limits of the Cherokee nation, without a license or permit from his excellency the governor, or from such agent as his excellency the governor shall authorize to grant such' permit or license, or who shall not have taken the oath hereinafter required, shall be guilty of a high misdemeanour; and, upon conviction thereof, shall be punished by confinement to the penitentiary at hard labour, for a term not less than four years. From this punishment, agents of the United States are excepted, white females, and male children under twenty-one years of age.

Persons who have obtained license, are required to take the following oath: “ 1, A. B., do solemnly swear, that I will support and defend the constitution and laws of the state of Georgia, and uprightly demean myself as a citizen thereof. So help me God.”

The governor is authorized to organize a guard, which shall not consist of more than sixty persons, to protect the mines in the Indian territory, and the guard is authorized to arrest all offenders, under the act.

It is apparent that these laws are repugnant to the treaties with the Cherokee Indians which have been referred to, and to the law of 1802. This repugnance is made so clear by an exhibition of the respective acts, that no force of demonstration can make it more palpable.

By the treaties and laws of the' United States, rights are guarantied to the Cherokees, both as it respects their territory and internal polity. By the laws of Georgia these rights are *579abolished; and not only abolished, but an ignominious punishment is inflicted on the Indians and others; for the exercise of them. The important question then arises, which shall stand, the laws of the United States, or the laws of Georgia? No rule of construction, or subtlety of argument, can evade an answer to this question. The response must be, so far as the punishment of the plaintiff in error is concerned, in favour of the one or the other.

Not to .feel the full weight of this momentous subject, would evidence an ignorance of that high responsibility.which is devolved upon this tribunal, and upon its humblest member, in giving a decision in this case.

Are the treaties and law which have been cited, in force? and what, if any, obligations, do they impose on the federal government within the limits of Georgia?

A reference has been made to the policy of the United States on the subject of Indian affairs, before the adoption of the constitution, with the view of ascertainiiig in what light the Indians have been considered by the first official acts, in relation to them, by the United States. For this object, it might not be improper to notice how they were considered by the European inhabitants, who first formed settlements in this part of the continent of America.

The abstract right of every section of the human race to a reasonable portion of the soil, by which to acquire the means of subsistence, cannot be controverted. And it is equally clear, that the range of nations or tribes, who exist in the hunter state, may be restricted within reasonable limits. They shall not be permitted to roam, in the pursuit of game, over an extensive and rich country, whilst in' other parts, human beings are crowded so closely together, as to render the means of subsistence precarious. The law of nature, which is paramount to all other laws, gives the right to every nation, to the enjoyment of a reasonable extent of country, so as to derive the means of subsistence from the soil.

In this view perhaps, our ancestors, when they first migrated to this country, might have taken possession of a limited extent of the domain, had they been' sufficiently powerful, without negotiation or purchase from the native Indians. But this course is believed to have been nowhere taken. A more *580conciliatory mode was preferred, and one which was better calculated to impress the Indians, who were then powerful, •with a sense of the justice of their white neighbours. The occupancy of their lands was never assumed,.except upon the basis of contract, and on the payment of a valuable consideration.

. This policy nas obtained from the earliest white settlements .in this country, down to the present time. Some cessions of territory may have been made by the Indians, in compliance with the terms on which peace was offered by the whites; but the soil, thus taken, wras taken by the laws of conquest,, and always as an indemnity for the expenses of the war, commenced by the Indians.

At no time has the sovereignty of the country been recognized as existing in the Indians, but they have been always admitted t<? possess many of the attributes of sovereignty. All the rights which belong to, self government have been recognized as vested in them. Their right of occupancy has never been questioned, but the fee in the soil has been considered in the government. This may be called the right to the ultimate domain, but the Indians have a present right of possession.

In some' of the old states, Massachusetts, Connecticut, Rhode Island and others, where small remnants of tribes remain, surrounded by ' white’ population, and who, by their reduced numbers, had lost the power of self government, the laws of the state have been. extended over them,.for the protection of their persons and property.

Before the adoption of the constitution, the mode of treating with the Indians was various. After the formation of the confederacy, this subject was placed under the special superintendence of the United Colonies; though, subsequent to that time, treaties may have been occasionally entered into between a state and the Indians in its neighbourhood. It is not considered to be at all important to go into a minute inquiry on this subject.

By the constitution, the regulation of commerce among the Indian tribes is given to congress. This power must be considéred as exclusively vested ih congress, as the power to' regulate commerce ’ with foreign nations, to coin money, to *581establish post offices, and to declare war. It is enumerated in the .'same section, apd belongs to the same class of powers.

This investiture o°f power has been exercised in the regulation .of commerce with the Indians, sometimes by treaty, and, at. other times, by enactments of congress. In this respect they have been placed by; the federal authority, with but few exceptions, on the same footing as foreign nations.

It is said that these treaties are nothing more than compacts, which cannot be considered as obligatory on the United States, from a.want of power in the Indians to enter into them.

What is a treaty? The answer is, it is a compact formed between two nations or communities, having the right_of self government.

Is it essential that each party shall possess the same attri-' butes of sovereignty, .to give force to the treaty? This will not be pretended: for, on this ground, very few valid treaties could be formed. The only requisite is, that each of the contracting parties shall possess the right of self government, and the power to perform the stipulations of the treaty.

Under the constitution, no state can enter into any treaty; and it is believed that, since its adoption, no state, under its own authority, has held a treaty with the Indians. •

It must be admitted, that the Indians sustain a peculiar relation to the United States. They do not constitute, as was decided at the last term, a foreign state, so as to claim the right to sue in the supreme court of the United States: and yet, having the right of self government, they, in some sense, form a state. In the management of their internal concerns, they are dependent on.no power. They punish offences under their own laws, and, in doing so, they are responsible to no earthly tribunal. They.make war, and form treaties of peace. The exercise of these and other powers, gives to them a distinct character as a people, and constitutes them, in some respects, a state, although they may not be admitted to possess the right of soil.

By various treaties, the Cherokees have placed themselves under the protection of the United States: they have agreed to trade with no other people, nor to invoke the protection of any other sovereignty. B.ut such engagements do not divest *582them of the right of self government, nor destroy their capacity to enter into treaties or compacts.

Every state is more or less dependent on those which sur-, round.it; but, unless this dependence shall extend so far as to merge the political existence of the protected people into that of their protectors, they may still constitute a state. They may exercise the powers not relinquished, and bind themselves as a distinct and separate community.

The language used in treaties with tire Indians should never' he construed to their prejudice. If words be made use of which are susceptible of a more extended meaning .than their plain import, as connected with the tenor of the treaty, they should be considered as used only in the latter sense. To contend that the word ee allotted,” in reference to the lane, guarantied to the Indians in certain treaties, indicates a favour conferred, rather than a right acknowledged, would, it would seem to me, do injustice to the understanding of the parties. How the w.ords of the treaty wére ■ understood by this unlettered people, rather than their critical meaning, should form the rule of construction.

The question may be asked, is no distinction to be made between a civilized and savage people? Are our Indians to be placed upon a footing with the nhtions of Europe, with whom we have made treaties?

The inquiry is not, what station shall • now be given' to the Indian tribes in our country?, but, what relation have they sustained to us, since the commencement of our government?

We have made treaties with them; and are those treaties to be disregarded on our part, because they were .entered into with an uncivilized people? Does this .lessen the obligation of such treaties? By entering into them, have we not admitted the power of this people to -bind themselves, and to impose obligations on us?

The president ai\d senate, except under the treaty-making power, cannot enter into compacts with the Indians, or with foreign nations. This power has been uniformly exercised in forming treaties with the Indians.

Nations differ from each- other in condition, and that of the. same nation may change by the revolutions of time, but the *583principles of justice are the same. They rest upon a base which will remain beyond the endurance of time.

After a lapse of more than forty years since treaties with the Indians have been solemnly ratified by the general government, it is too late to deny their binding force. Have the numerous treaties which have been formed with them, and the ratifications by the president and senate, been nothing more than an idle pageantry?

By numerous treaties with the Indian tribes, w.e have acquired accessions of territory, of incalculable value to the union. Except by compact, we have not even claimed a right of way through the Indian lands. We have recognised .in them the right to make war. No one has ever supposed that the Indians could commit treason against the United States. We have punished them for their violation of treaties; but we have inflicted the punishment bn them as a nation, and not on individual offenders among them as traitors.

In the executive, legislative, and judicial branches of our government, we have admitted, by the most solemn sanctions, the existence of the Indians as a separate and distinct people, and as being vested with rights which constitute them a state, .or separate community — not a foreign, but a domestic community — not as belonging to the confederacy, but as existing .within it, and, of necessity, beáring to it a peculiar relation.

But, can the treaties which have been referred to, and the law of 1802, be considered in force within the limits of the state of Georgia? ■

•In the act of cession, made by Georgia, to the United States, in 1802, of all lands claimed by her west of the line designated,.one of the conditions was, “that the United States shoald, at their own expense, extinguish, for the úse of Georgia, as early as. the same cán be peaceably obtained, on reasonable terms, the Indian title' to lands within the state of Georgia.”

One of the counsel, in the argument,, endeavoured to show, that no part of the country now inhabited by the Cherokee Indians, is within what is called the chartered limits of Georgia.

It appears that the charter of Georgia was surrendered *584by the trustees, and that, like the state of South Carolina, she became a regal colony. The effect of this change was, to authorise the crown to alter the boundaries, in the exercise of its discretion. Certain alterations, it seems, were subsequently made: but I do not. conceive it can be of any importance to enter into a minute consideration -of them. . Under its charter, it may be observed, that Georgia derived a right' to the soil, subject to the Indian title, by occupancy. By the act of cession, Georgia designated a certain line as the limit of that cession, and this line, unless subsequently altered, with the assent of the parties interested, must be considered as the boundary of the state of Georgiá. This line having been thus recognized, cannot be contested on any question which may incidentally arise for judicial decision.

It is important, on this part of the.case, to ascertain inwh'at light Georgia has considered the Indian title to lands, generally, and particularly, wi.hinher own boundaries; and also, as to the right of the Indians to self-government.

In the first place, she was a party to all the treaties entered into between the United States and the Indians, sipce the adoption of the constitution. And prior to that period, she was represented in making them, and was bound by their provisions, although it is alleged that she remonstrated against the treaty of Hopewell... In the passage of the intercourse law of 1802, as one of the constituent .parts of the union, she was also a party.

The stipulation made in her act of cession, that the United States should extinguish the Indian title to lands within the state, was a distinct recognition of the right in the federal government, to make the extinguishment; and also, that, until it should be made, the right of occupancy would remain in the Indians.

In a law of the state of Georgia, a for opening the land office and for other purposes,” passed in 1783, it is declared that surveys made on Indian lands were null and void; a fine was inflicted on the person making the survey, which, if not paid by the,offender, he was'punished by imprisonment. By a subsequent act, a line'was fixed for the Indians, which was a boundary between them and the whites. A similar provision is found in other laws of Georgia, passed before the adoption *585of the constitution. By an act of 1787, severe corporeal punishment was inflicted on those who made or attempted to make surveys, “ beyond the temporary line designating the Indian hunting ground.”

On the 19th of November 1814, the following resolutions were adopted by the Georgia legislature.

“ Whereas, many of the citizens of this state, without regard to existing treaties between the friendly Indians and the United States, and contrary to the interest and good policy of this' - state, have gone,' and -are. frequently going over, and settling and cultivating the lands allotted to the friendly Indians for their hunting ground, by which means the state is not only deprived of their services in the army, but considerable feuds are engendered between us and oür- friendly neighbouring Indians:

“ Resolved, therefore, by the senate and house of representatives of the state of Georgia in general assembly met, that his excellency, the governor, be, and is hereby requested to take the necessary means to have all intruders remóyed off the Indian lands, and that proper steps be taken to prevent future aggressions.”

In 1817, the legislature refused to take any steps to dispose of lands acquired by treaty with the Indians, until the treaty had been ratified by the senate; and, by a resolution, the governor was directed to have the line run between the' state of Georgia and the Indians, according to the late treaty. The same thing was again done in the-year 1819, under a recent treaty.

In a memorial to the president of the United States, by the legislature of Georgia, in 1819, they say, “ it has long been the desire of Georgia, that her settlements should be extended to her ultimate limits.” “That the soil within her boundaries should be subjected to her control; and, that her police organization and government should be fixed and permanent.” “ That the state of Georgia claims a right to the jurisdiction and soil of the territory within her limits;” “ She admits, however, that the right is inchoate — remaining to be perfected by the United States, in the extinction of the Indian title; the United States juro hac vice as their agents.”

The Indian title was also distinctly acknowledged by the act *586of 1796, repealing the Yazoo act. It is there declared, in reference to certain lands, that “ they are the sole property of the state, subject only to the right of the treaty of the United States, to enable the state to purchase, under its pre-emption right, the Indian title to the same;” and also, that the land is vested in the “ stale, to whom the right of pre-emption to the same belongs, subject only to the controlling power of the United Stat'e , to authorise any treaties for, arid to superintend the same.” This language, it will be Observed, .was used long before the act of cession.

On the 25th of March 1835, the governor of Georgia issued the following proclamation:

«Whereas it is provided in said treaty, that the United States shall protect the Indians against the incroachments, hostilities, and impositions of the whites, so that they suffer no imposition, molestation, or injury in their persons, goods, effects, their dwellings,' or the lands they occupy, until their removal shall have been acomplished, according to the terms of the treaty,” which had been recently made with the Indians.

“I,have'therefore thought proper to issue this my proclamation, warning all persons, citizens of Georgia or others, against trespassing or intruding upon lands occupied by the Indians, within the limits of Georgia, either for the purpose of settlement or otherwise, as ever}' such act will be in* direct violation of the provisions of the treaty aforesaid, and will expose the aggressors to the most certain and summary punishment, by the authorities of the state, and the United States.” «All good citizens, therefore, pursuing the dictates'of good faith, will unite in enforcing the obligations of the treaty, as the supreme law” &c.

Many other references might he made to the public acts of the state of Georgia, to show that she admitted the obligation of Indian treaties, but the above are believed to be sufficient. These acts, do honour to the character of that highly respect able state.

Under, the act of cession, the United State? were bound,, in good faith, to extinguish the Indian title to lands within the limits of Georgia, so soon as it could be done péaeeably and on reasonable terms.

*587The state of Georgia has repeatedly remonstrated to the president .on this subject, and called upon t.he government to lake the necessary steps to fulfil its engagement. She complained that, whilst the Indian title to immense tracts of country had been extinguished elsewhere, within, the limits of Georgia but little progress had been made; and this was attributed, either to a want of effort on the part of the federal government, or to the effect of its policy towards the Indiaqs. In one or more of the treaties, titles in fee.simple were given to the Indians, to certain reservations of land; and this was complained of, by Georgia, as a direct infraction of the condition of the cession. It has also been asserted, that the policy of the government, in advancing the cause of civilization among the Cherokees, and inducing them to assume the forms of a regular government and of civilized life, was calculated to increase their attachment to the soil they inhabit, and to render the purchase of their title more difficult, if not impracticable.

A full investigation of this subject may not be considered as strictly within the scope of the judicial inquiry which belongs to the present case. But, to some extent, it has a direct bearing on the question before the court; as it tends to show how the rights and powers of Georgia were construed by her public functionaries.

By the first president of the United States, and by every succeeding one,. a strong solicitude has been expressed for the civilization of the Indians. Through the agency of the government, they have been partially induced, in some parts of the union, to change the. huntér state for that of the agriculturist and herdsman.

In a letter addressed by Mr Jefferson to the Cherokees, dated the 9th of January 1809, he recommends them to adopt a regular government, that crimes might be punished and property, protected. He points out the mode by which a council should be chosen, who should have power to enact laws; and he also recommended the appointment of judicial and executive agents, through whom the law might be enforced. The agent of the government, who resided among them, was recommended to be associated with their council, that he might give the necessary advice on all subjects relating to their government.

*588In the treaty of 1817, the Cherokees are encouraged to adopt a regular form of government.

Since that time, a law has been passed making an annual appropriation of the sum of ten thousand dollars, as a school •fund, for the education of Indian youths, which has been distributed among the different tribes where s.chools had been established. Missionáry labours among the Indians have also been sanctioned by the government, by granting permits, to those who were disposed to engage in such a work, to reside ■in the Indian country.

That the means adopted by the general government to reclaim the savage from his erratic life, and induce him to assume the forms of civilization, have had a tendency to increase the attachment of the Cherokees to the country they now inhabit, is extremely probable; and that it increased the difficulty of purchasing their lands, as by act of cession the general government agreed to do, is equally probable.

Neither Georgia, nor the United States, when the cession was made, contemplated that force should be used in the ex-tinguishment of. the Indian title; nor that it should be procured on terms that are not reasonable. But, may it not be said, with equal truth, that it was not contemplated by either party that any obstructions to the fulfilment of the compact should be allowed, much less sanctioned, by the United States?

The humane policy of the government towards these children of the wilderness must afford pleasure to every benevolent feeling; and if the efforts made have not proved as successful as was anticipated, still much has been done. Whether the advantages of this policy should not have been held out by the government to the Cherokees within the limits of Georgia, as an inducement for them to change their residence and fix it elsewhere, rather than by such means to increase their attachment to their present home, as has been insisted on, is a question which may be considered by another branch of the government. Such a course might, perhaps, have secured to the Cherokee Indians all the advantages they have realized from the paternal superintendence of the .government; and have enabled it, on peaceable and reasonable terms, to comply with the act of cession

Does the intercourse law of 1802 apply to the Indians who *589live within the limits of Georgia ? The nineteenth section of that act provides, “that it shall not be construed to prevent any trade or intercourse with Indians living on landp surrounded by settlements'of the citizens of the United States, and being within the ordinary jurisdiction of any of the individual states ? This provision, it has been supposed, excepts from the operation of the law the Indian lands which lie within any state. A moment’s reflection will show that this construction is most clearly erroneous.

To constitute an exception to the provisions of this act, the Indian settlement, at the time of its passage, must have been surrounded by settlements of the citizens of the United States, and within the ordinary jurisdiction of a state; not only within the limits of a state, but within the common exercise of its jurisdiction.

No one will pretend that, this was the situation of the Cherokees who lived within the state of Georgia in 1802; or, indeed, that such is their present situation. If, then, they are.not embraced by the exception, all the provisions of the act of 1802 apply to them.

In the very section which contains the exception, it is provided, that the use of the road from Washington district to Mero district should be enjoyed, and that the citizens of Tennessee, under the orders of the governor, might keep the road in repair. And in the same section, the navigation of the Tennessee river is reserved, and a right to travel frotfi Knoxville to Price’s settlement; provided the Indians should not object.

Now, all these provisions relate to the Cherokee country; and can it be supposed, by any one, that such provisions would have been made in the act, if congress had not considered it as applying to the Cherokee country,, whether in the state of Georgia, or in the state of Tennessee ?

The exception applied, exclusively, to those fragments of tribes which are found in several of the states, and which came literally within the description used.

Much has been said against the existence of an independent power within a sovereign state; and the conclusion has been drawn, that the Indians, as a matter of right, cannot enforce their own laws within the territorial limits of a state. The refutation of this argument is found in our past history.

*590That fragments of tribes, having lost the power of self-government, and'who lived within the ordinary jurisdiction of a state, have been taken under the protection of the laws, has already been admitted. But there has been no instance, where the state laws have, been generally extended over a numerous tribe of Indians, living within the state* and exercising the right of self-government, until recently.

Has Georgia ever, before her late laws, attempted to regulate the Indian communities within her limits ? It is true, New York.extended her criminal laws over the remains of the tribes within that state, more for their protection than for any other purpose. These tribes were few in n.umber, and were surrounded by a white population. But, even the state of New York has never asserted the power, it is believed, to regulate their concerns beyond the suppression of crime.

Might not the same objection to this interior independent power, by Georgia, have been urged, with as much force as at present, ever since the adoption of the constitution? Her chartered limits, to the extent claimed, embraced a great number of different nations of Indians, all of whom were governed by their own laws, and were amenable only'to them. Has not this been the condition of the Indiahs within Tennessee, Ohio, and other states?

The exercise of thiis independent power surely does not become more objectionable, as it assumes the basis of justice and the forms of civilization. Would it not be a singular argument to admit, that, so long as the Indians govern by the rifle and the tomahayvk, their government may be tolerated; but, that it must be*suppressed, so soon as it shall be administered upon the enlightened principles of reason and justice?

Are not those nations of Indians who have made some advances. in civilization, better, neighbours than those who are still in a savage state? And is not the principle, as to théir self government, within the. jurisdiction -of a state, the same?

When Georgia sanctioned the constitution, and conferred on the national legislature the exclusive right to regulate commerce or intercourse with the Indians, did she reserve the right to regulate intercourse with the Indians within her limits? This will not be pretended. If shch had been the construction of her own powers,, would they riot have-been exercised? *591Did her senators object to the numerous treaties which have been formed with the different tribes, who lived within her acknowledged boundaries? Why did she apply to the executive of the union, repeatedly, to have the Indian title extinguished; to establish.a.line between the Indians and the state, and to procure a right of way through the Indian lands?

The residence of Indians, governed by their own laws, within the limits of a state, has never been deemed incompatible with state sovereignty, until recently. And yet, this has been the condition of many distinct tribes of Indians, since the foundation of the federal government.,

How is the question varied by the residence of the Indians in a territory of the United States? Áre mot the United States sovereign within their territories? And has it evet been conceived, by any one, that the Indian governments, which exist in the territories, are incompatible with the sovereignty of the union?

A state claims the right of sovereignty, commensurate with her territory;, as the United States claim it, in their proper sphere, to the extent of the federal limits. This right or power, in some cases, may be exercised, but not in others. Should a hostile force invade the country, at its most remote boundary, it would become the duty of the general government to expel the invaders. But it would violate the solemn compact's with the Indians, without cause, to dispossess them of rights which they possess by nature, and have been uniformly acknowledged by the federal government.

Is it incompatible, with state sovereignty to grant, exclusive jurisdiction to the federal government over a number of acres of land, for military purposes ? Our forts and arsenals, though situated in the different states, are not within their jurisdiction.

Does not the constitution give to the United States as exclusive jurisdiction in regulating intercourse with the Indians, as has been given to them over any other subjects ? Is there any doubt as to this investiture of power ? Has it not been exercised by the federal government, ever since its formation, not only without objection, but under the express sanction of all the states ?

The power to dispose of the public domain is an attribute *592of sovereignty. Can the new states dispose of the lands within their limits, which are owned by the federal government? The power to tax is also an attribute of sovereignty; but, can. the new states tax the lands of the United States ? Have they not bound themselves, by compact, not to tax the public lands, nor until five years after they shall have been sold ? May they violate this compact, at discretion ?

Why may not these powers be exercised by the respective states ? The answer is, because they have parted .with them, expressly for the general good. Why may not a state coin money, issue bills of- credit, enter into a treaty of alliance or confederation, or regulate commerce with foreign nations? Because these powers have been expressly and exclusively given to the federal government.

Has not the power been as expressly conferred on the federal government, to regulate intercourse with the Indians; and is it not as exclusively given, as any of the powers above enumerated? There being no exception to the exercise of this power, it must operate on all communities of Indians, exercising the right of self-government; and consequently, include those who reside within the limits of a state, as well as others. Such has been the uniform construction of this power by the federal government, and of. every state government, until the question was raised by the state of Georgia.

Under this clause of the constitution, no political jurisdiction over the Indians, has been claimed or exercised. The restrictions imposed by the law of 1802, come strictly within the power to regulate trade; not as an incident, but as a part of the principal, power. It is the same power, and is conferred in the same words, that has often been exercised in regulating trade with foreign countries. Embargoes have been imposed, laws of non-intercourse have been passed, and numerous acts, restrictive of trade, under the power to regulate commerce with foreign nations.

In the regulation of commerce with, the Indians, congress have exercised a more limited power than has been exercised in reference to foreign countries. The law acts upon ohr own cit zens, and not upon the Indians, the same as the laws referred to act upon our own citizens in their foreign commercial intercourse.

*593It will scarcely be doubted by any one, that, so far as the Indians, as distinct communities, have formed a connexion with the,federal government, by treaties; that such connexion is political, and is equally binding on both parties. This cannot be questioned, except, upon the ground, that in making ■these treaties, the federal government has transcended the treaty-making power. Such an objection, it is true, has been stated, but it is one of modern', invention, which arises out of focal circumstances; and is not only opposed to the uniform practice of .the government, but also to the letter and spirit of the constitution.

But the inquiry may be made, is there no end to the exercise of this power over Indians within the limits of a state, by the general government? The answer is, that, in its nature, it must be limited by .circumstances.

If a tribe of Indians shall become so degraded or reduced in numbers, as to lose the power of self-government, the protection of the local law, of necessity, must-be extended over them. The point at which this exercise of power by a state would be proper, need not now be considered: if indeed it be a judicial question. Such a question does not seem to arise in this case. So long as treaties and laws remain in full force, and apply to Indian nations, exercising the riglit of self-government, within the limits of a state, the judicial power can exercise no discretion in refusing to give effect to those laws, when questions arise under them, unless they shall be deemed unconstitutional.

The exercise of the power of self-government by the Indians, within.a state, is undoubtedly contemplated to be temporary. This is shown by the settled policy of the government, in the extinguishment of their title, and especially by the compact with the state of Georgia. It is a question, not of abstract right, but of public policy. I do not.mean to say, that the same moral rule which should regulate the affairs of private life, should not be regarded by communities or nations. But, a sound national policy does require that the Indian tribes within our states should exchange their territories, upon equitable principles, or, eventually, consent to become amalgamated in our political-communities.

At best they can enjoy a very limited independence within *594the boundaries, of a state, and such a . residence must always subject them to encroachments from the settlements around them; and their existence within a state, as a separate-and independent community, may seriously embarrass or obstruct the operation of the state laws. If, therefore, it would be inconsistent-with the political welfare of the states, and the social advance of their citizens, that an independent and permanent power should exist within their limits, this power must give way to the greater power which surrounds it, or seek its exercise beyond the sphere of state authority.

This state of things can only be produced by a co-operation of the state and federal governments. The latter has the exclusive regulation of intercourse with the Indians; and, so long as this power shall be exercised, it cannot be obstructed by the state. It is a power given by the constitution, and sanctioned by the most solemn acts of both the federal and state governments: consequently, it cannot be abrogated at the will of a state. lit is one of the powers parted with by the states, and vested in the federal government. But, if a contingency shall qccur, which shall render the Indians who reside in a state, incapable of self-government, either by moral degradation or a reduction of their numbers, it would undoubtedly be in the power of a state government to extend to them the aegis of its laws. Undér such circumstances, the agency of the general government, of necessity, must cease.

But, if it shall be the policy of the government to withdraw its protection from the Indians who reside within the limits of the respective states, ánd who not only claim the right of self government, but have uniformly exercised it; the laws and treaties which impose duties and obligations on the general government should be abrogated by the powers competent to do so. So long as those laws and treaties exist, having been formed within, the sphere of the federal powers, they must be respected and enforced by the appropriate organs of the federal government.

The plaintiff who prosecutes this writ of error, entered the Cherokee country, as it appears, with the express permission of the president, and under the protection of the treaties of the United States, and the law of 1802. He entered, not to corrupt the morals of this people, nor to profit by their substance; but to *595teach them, by precept and example, the Christian religion. If he be unworthy of this sacred office; if he had any other object than the one professed; if besought, by his influence, to counteract the humane policy of the federal government towards the Indians, and to embarrass its efforts to comply with its solemn engagement with Georgia; though his sufferings be illegal, he is not a proper object of public sympathy.

It has been shown, that the treaties and laws referred to come within the due exercise of the constitutional powers of the federal government; that they remain in full force, and consequently must be considered as the supreme laws of the land. These laws throw a shield over the Cherokee Indians. They guarantied to them their rights of occupancy, of self-government, and the full enjoyment of those blessings which might be attained in their humble condition. But, by the enactments of the state of Georgia, this shield is broken in pieces — the infant institutions of the Cherokees are abolished, and their laws annulled. Infamous punishmént is denounced against them, for the exercise Of those rights which have been most solemnly guarantied to them by the national faith.

Of these enactments, however, the plaintiff in error has no right to complain, nor can he question their validity, except in so far as they affect his interests. In this view and in' this view only, has it become necessary, in the present case, to consider the repugnancy of the laws of Georgia to those of the union.

Of the justice or policy of these laws, it is not my province to speak: such considerations belonging to the legislature by whom they were passed. They have, no doubt, been enacted under a conviction of right, by a sovereign and independent state, and their policy may have been recommended, by a sense of wrong under the compact. Thirty years have elapsed since the federal government engaged to extinguish the Indian title, within the limits of Georgia. That she has strong ground of complaint arising from this delay, must be admitted; but such considerations are not involved in the present case; they belong to another branch of the government. We can look only to the law, which defines our power, and marks out the path of our duty.

Under the administration of the laws of Georgia, a citizen of *596the United States has been deprived of his liberty; and, claiming protection under the treaties and laws of the United States, he makes the question, as he has a right to make it, whether the laws of Georgia, under which he is now suffering an ignominious punishment, are not repugnant to the constitution of the United States, and the treaties and laws made under it. This repugnancy has been shown; and it remains only to say, what has before been often said by this tribunal of the local laws of many of the states in this union, that, being repugnant to the constitution of the United States, and to the laws made under it, they can have no force to divest the plaintiff in error of his property or liberty.

Mr Justice Baldwin

dissented: stating that-in his opinion, the record was. not properly returned upon the writ of error; and ought to have been returned by the state court, and not by the clerk of. that court. As to the merits, he said his opinion remained the same as was expressed by him in the case of the Cherokee Nation v. The State of Georgia, at the last term.

The opinion of Mr'Justice Baldwin wasnotdelivéred to the reporter.

This cause came on to be heard on the transcript of the. record from the superior court for the county of Gwinnett, in the state of Georgia, and was argued by counsel; on consideration whereof, it is the opinion of this .Court, that the act of the legislature of the state of Georgia, upon which the indictment in this case is founded, is contrary to the constitution, treaties, and laws of the United States; and that the special plea in bar pleaded by the said Samuel A. Worcester, in manner aforesaid, and relying upon the constitution, treaties, and laws of the United States aforesaid, is a good bar and defence to the said indictment, by the said Samuel A. Worcester; and as such ought to have been allowed and admitted bjr the said superior court for the county of Gwinnett, in the state of Georgia, before which the said indictment Was pending and tried;’ and that there was error in the said superior court of the state of Georgia, in overruling the plea so pleaded as aforesaid. ■ It is therefore ordered and adjudged, that the judgment rendered in *597the premises, by the said superior court of Georgia, upon the verdict upon the plea of Not guilty afterwards pleaded by the said Samuel A. Worcester, wherebythe said Samuel A. Worcester is sentenced to hard labour in the penitentiary of the state of Georgia, ought to be reversed and annulled. And this court proceeding to render such judgment as the said superior Court, of the state of Georgia should have rendered, it is'further ordered and adjudged, that the said judgment of the said.superior court be, and hereby is reversed and annulled; and that judgment be, and hereby is awarded, that the special plea in bar, so as aforesaid pleaded, is a good and sufficient plea in bar in law to the indictme.nt aforesaid; and that all proceedings on the said indictment do for ever surcease; and that the said Samuel A. Worcester be, and hereby is henceforth dismissed therefrom, and that he go thereof quit without day. And that a special mandate-do go from this court, to the said superior court, to carry this judgment into execution.

In the case of Butler, Plaintiff in Error v. The State of Georgia, the same judgment was given by the court, and a special mandate was ordered from the court to the superior court of Gwinnett county, to carry the judgment into execution.

ELK v. WILKINS.

IN ERROR TO THE CIRCUIT COURT OE THE UNITED STATES EOR THE DISTRICT OE NEBRASKA.

Argued April 28, 1884.

Decided November 3, 1884.

An Indian, born a member of one of the Indian tribes within the United States, which .still exists and is recognized as a tribe by the government of the United States, who has voluntarily separated himself from his tribe, and taken up his residence among the white citizens of a State, but who has not been naturalized, or taxed, or recognized as a citizen, either by the United States or by the State, is not a citizen of the United States, within the meaning of the first section of the Fourteenth Article of Amendment, of the Constitution.

A petition alleging that the plaintiff is an Indian, and was born within the United States, and has severed his tribal relation to the Indian tribes, and fully and completely surrendered himself-to the jurisdiction of the United States, and still so continues subject to the jurisdiction of theUnited States, and is a bona fide resident of the State of Nebraska and city of Omaha, does not show that he is a citizen of the United States under the Fourteenth Article of Amendment of the Constitution.

This is an action brought by an Indian, in the Circuit Court of-the United States for the District of Nebraska, against the registrar of one of the wards of the city of Omaha, for refusing to register him as a qualified voter therein. The petition was as follows:

*95“John Elk, plaintiff, complains of Charles Wilkins, defendant, and avers that the. matter in dispute herein exceeds the sum of five hundred dollars, to wit, the sum of six thousand dollars, and that the matter in- dispute herein arises under the. Constitution and laws of the United States; and, for cause of action against the defendant, avers that he, the plaintiff, is an Indian, and was born within the United States; that more than one year prior to the grievances hereinafter complained of he had severed his tribal relation to the Indian tribes, and had fully and completely surrendered himself to the jurisdiction of the United States, and still so continues subject to the jurisdiction of the United States; and avers that, under and by virtue of the Fourteenth Amendment to the Constitution of the United States, he is a citizen of the United States, and entitled to the right and "privilege of citizens of the United States.

“ That on the sixth day of April, 1880, there was held in the city of Omaha, (a city of the first class, incorporated under the general laws" of the State of Nebraska providing for the incorporation of cities of the first class,) a general election for the-election of members of the city council and other officers for said city.

“ That the defendant, Charles Wilkins,, held the office of and acted as registrar in the fifth ward of said city, and that as said registrar it 'was the duty of such defendant to register the names of all persons entitled to exercise the elective franchise in said ward of said city at said general election.

“ That this plaintiff was a citizen of and had been a Iona fide resident of the State of Nebraska for more than six months prior to said sixth day of April, 1880, and had been a bona fide resident of Douglas County, wherein the city of Omaha is situate, for more than forty days, and in the fifth ward of said city more than ten days prior to the said sixth day of April, and was such citizen and resident at the time of said election, and' at the time of his attempted registration, as hereinafter set forth, and was in every way qualified, under the laws of the State of Nebraska and of the city of Omaha, to be registered as a voter and to cast a vote at said election, and complied with the laws of the city and State in that behalf.

*96“ That on or about the fifth day of April, 1880, and prior to said election, this plaintiff presented himself to said Charles Wilkins, as such registrar, at his office, for the purpose of hav-' ing his name registered as a qualified voter, as provided by law, and complied with all the provisions of the statutes in that •regard, and claimed that, under the Fourteenth and Fifteenth Amendments to the Constitution of the United States, he was a citizen of the United States, and was entitled to exercise the elective franchise, regardless of his race and color; and that said Wilkins, designedly, corruptly, wilfully and maliciously, did then and there refuse to register this plaintiff,'for the sole reason that the plaintiff was an Indian, and therefore not a citizen of the United States, and not, therefore, entitled to vote, and on account of his race and color, and with the wilful, malicious, corrupt and unlawful design to deprive this plaintiff of his right to vote at said election, and of his rights, and all other Indians of their rights, under said Fourteenth and Fifteenth Amendments to - the Constitution of the United States, on account of his and their race and color.

“ That on the sixth day of April this plaintiff presented himself at the place of voting in said ward, and presented a ballot- and requested the right to vote, where said Wilkins, who was then acting as one of the judges of said election in said ward,. in further carrying out his wilful and malicious designs aforesaid, declared to the plaintiff and to the other election officers that the plaintiff was an Indian and not a citizen and not entitled to vote, and said judges and clerks of election refused to receive the vote of the plaintiff, for that he was not registered as required by law.

“ Plaintiff avers the fact to be that by reason of said wilful, unlawful, corrupt and malicious refusal of said defendant to register this plaintiff, as provided by law, he was deprived of his right to vote at said election, to his damage in the sum of $6,000.

“ Wherefore plaintiff prays judgment against defendant for $6,000, his damages, with costs of suit.”

The defendant filed a general demurrer for the following . causes: 1st. That the petition did not state facts sufficient to *97constitute a cause of action. 2d. That the court had no juris-. diction of the person of the defendant. 3d. That the court had no' jurisdiction of the subject of the action.

The demurrer was argued before Judge McCrary and Judge Dundy, and sustained; and the plaintiff electing to stand by ■his petition, judgment was rendered for the defendant, dismissing the petition with costs. The plaintiff sued out this writ of error.

By -the Constitution of the State of Nebraska, article 7, section 1, “ Every male person of the age of twenty-one years or upwards, belonging to either of the following classes, who shall have resided in the State six months, and in the county, precinct or ward for the term provided by law, shall be an elector. First. Citizens of the United States. Second. Persons of foreign birth who shall have declared their intention to become citizens, conformably to the laws of the United States on the subject of naturalization, at least thirty days prior to an election.”

By the statutes of Nebraska, every male person of the age of twenty-one years or upwards, belonging to either of the two classes so defined in the Constitution of the State, who shall have resided in the State six months, in the county forty days; and in the precinct, township or ward ten days, shall be an elector ; the qualification of electors in the several wards of cities of the first class (of which Omaha is one) shall be the same as in precincts; it is the duty of the registrar to enter in the register of qualified voters the name of every person who applies to him to be registered, and satisfies him that he is qualified to vote under the provisions of the election laws of the State; and at all municipal, as well as county or State elections, the judges of election are required to check the name, and receive and deposit the ballot, of any person whose name appears on the register. Compiled Statutes of Nebraska of 1881, eh. 26, § 3 ; oh. 13, § 14; ch. 76, §§ 6, 13, 19.

Mr. A. J. Pojjpleton and Mr. John L. Webster for plaintiff in error.

Mr. O. M. Lambertson for defendant in error,

*98Mr. Justice Gray

delivered the opinion of the court. He stated the- facts in the foregoing language, and continued:

The plaintiff, in support of his action, relies on the first clause of the first section of the Fourteenth Article of Amendment of the Constitution of the United States, by which “ all persons born or naturalized in the United States,' and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside;” and on the Fifteenth Article of Amendment, which provides that “the right of citizens of the- United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”

This being a suit at common law, in which the matter in dispute "exceeds $500, arising under the Constitution of the United States, the Circuit Court had jurisdiction of it under the act of March 3, 1875, ch. 137, § 1, even if the parties Avere citizens of the same State. 18 Stat. 470; Ames v. Kansas, 111 U. S. 449. The judgment of that court, dismissing the action with costs, must have proceeded upon the merits, for, if the' dismissal had been for AArant of jurisdiction, no .costs could have been awarded. The Mayor v. Cooper, 6 Wall. 247; Mansfield & Coldwater Railway v. Swan, 111 U. S. 379. And the only point argued by the defendant in this court is Avhether the petition sets forth facts enough to constitute a cause of action.

The decision of this point, as both parties assume in their briefs, depends upon the question Avhether the legal conclusion, that under and by virtue-of the Fourteenth Amendment of the Constitution the plaintiff is a citizen of the United States, is supported by the facts alleged in the petition and admitted by the demurrer, to wit: The plaintiff is an Indian, and Avas born in the United States, and has severed his tribal relation to the Indian tribes, and fully and completely surrendered himself to the jurisdiction of the United States, and still continues to be subject to the jurisdiction of the United States, and is a Iona fide resident of the State of Nebraska and city of Omaha.

The petition, while it does not shoAv of what Indian tribe the plaintiff was a member, yet, by the allegations that he “ is *99an Indian, and was born within the United States,” and that “ he had severed his tribal relation to the Indian tribes,” clearly implies that he was born a member of one of the Indian tribes within the limits of the United States, which still exists and is recognized as a tribe by the government of the United States. Though the plaintiff alleges that he “had fully and completely surrendered himself to the jurisdiction of the United States,” he does not allege that the United States accepted his surrender, or that he has ever been naturalized, or'taxed, or in any 'way recognized or treated as a citizen, by the State or by the United States. Nor is it contended by his counsel that there is any statute or treaty that makes him a citizen.

The question then is, whether an Indian, born a member of one of the Indian tribes within the United States, is, merely by reason of his birth within the United. States, and of his after-wards voluntarily separating himself from his tribe and taking up his residence among white citizens, a citizen of the United States, within the meaning of the first section of the Fourteenth Amendment of the Constitution:

Under the Constitution of the United States, as originally established, “ Indians not taxed ” were excluded from the persons according to whose numbers representatives and direct taxes were apportioned among the several States; and Congress had and exercised the power to regulate commerce with the Indian tribes, and the' members thereof, whether within or without the boundaries of one of the States of the Union. The Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign States; but they were alien nations, distinct political communities, with whom the United States might and habitually did deal, as they thought fit, either through treaties made by the President and Senate, or through acts of Congress in the ordinary forms of legislation. The members of those tribes owed immediate allegiance to their several tribes, and were not part of the people of the United States. They were in a dependent condition, a state of pupilage, resembling that of a ward to his guardian. Indians and their property, exempt from taxation by treaty or statute of the United States, could riot be taxed *100by any State. General acts of Congress did not apply to Indians, unless so expressed as to clearly manifest an intention to include them. Constitution, art. 1, sects. 2, 8 ; art. 2, sect. 2; Cherokee Nation v. Georgia, 5 Pet. 1; Worcester v. Georgia, 6 Pet. 515; United States v. Rogers, 4 How. 567; United States v. Holliday, 3 Wall. 407; Case of the Kansas Indians, 5 Wall. 737; Case of the New York Indians, 5 Wall. 761; Case of the Cherokee Tobacco, 11 Wall. 616 ; United States v. Whiskey, 93 U. S. 188; Pennock v. Commissioners, 103 U. S. 44; Crow Dog's Case, 109 U. S. 556; Goodell v. Jackson, 20 Johns. 693; Hastings v. Farmer, 4 N. Y. 293.

The alien and dependent condition of the members of the Indian tribes could not be put off at their own will, without the action or, assent of the United States. They were never deemed citizens of the United 'States, except under explicit provisions of treaty or statute to that effect, either declaring a certain tribe, or such members of it as chose to remain behind on the removal of the tribe westward, to be citizens, or authorizing individuals of particular tribes to become citizens on application to a court of the United States for naturalization, and satisfactory proof of fitness for civilized life; for examples of which see treaties in 1817 and 1835 with the Cherokees, and in 1820, 1825 and 1830 with the Choctaws, 7 Stat. 159, 211, 236, 335, 483, 488; Wilson v. Wall, 6 Wall. 83; Opinion of Attorney-General Taney, 2 Opinions of Attorneys General, 462; in 1855 with the Wyandotts, 10 Stat. 1159 ; Karrahoo v. Adams, 1 Dillon, 344, 346 ; Gray v. Coffman, 3 Dillon, 393 ; Hicks v. Butrick, 3 Dillon, 413 ; in 1861 and in March, 1866, with the Pottawatomies, 12 Stat. 1192; 14 Stat. 763 ; in 1862 with the Ottawas, 12 Stat. 1237; and the Kickapoos, 13 Stat. 624; and acts of Congress of March 3, 1839, ch. 83, § 7, concerning the Brothertown Indians, and of March 3, 1843, ch. 101, § 7, August 6, 1846, ch. 88, and March 3, 1865, ch. 127, § 4, concerning the Stockbridge Indians, 5 Stat. 351, 647; 9 Stat. 55 ; 13 Stat. 562. See also treaties with the Stockbridge Indians in 1848 and 1856, 9 Stat. 955; 11 Stat. 667; 7 Opinions of Attorneys General, 746.

Chief Justice Taney, in the passage cited for the plaintiff *101from his opinion in Scott v. Sandford, 19 How. 393, 404, did not affirm or imply that either the Indian tribes, or individual members of those tribes, had the right, beyond other foreigners, to become citizens of their own will, without being naturalized by the United States. His words were: “ They” (the Indian tribes) “ may; without doubt, like the subjects of any foreign government, be naturalized by the authority of Congress, and become citizens of a State, and of the United States; and if an individual should leave his nation or tribe, and take up his abode among the white population, he would be entitled to all the rights and privileges which would belong to an emigrant from any other foreign people.” 'But an emigrant from any foreign State cannot become a citizen of the United States without a formal renunciation of his old allegiance, and an acceptance by the United States,of that renunciation through such form of naturalization as may be required by law.

The distinction between citizenship by birth and citizenship by naturalization is clearly marked in the provisions of the Constitution, by which “ no person, except a natural born citizen, or a citizen of the United States at the time of the adoption of this Constitution, shall be eligible to the office of President; ” and “the Congress shall "have power to establish an uniform rule of naturalization.” Constitution, art. 2. sect.. 1; art. 1, sect. 8.

By the Thirteenth Amendment of the Constitution slavery was prohibited. The main object of the' opening sentence of the Fourteenth Amendment was to settle the question, upon which there had been a difference of opinion throughout the country and in this court, as to the citizenship of. free negroes (Scott v. Sandford, 19 How. 393); and to put it beyond- doubt that all persons, white or black, and whether formerly slaves or not, born or naturalizéd in the United States, and owing no allegiance to. any alien power, should be citizens of the United States and of the State in which they reside. Slaughter-House Cases, 16 Wall. 36, 13; Strauder v. West Virginia, 102 U. S. 303, 306.

This section contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared • *102to be citizens are “ all persons born or naturalized in the United States, and subject to the jurisdiction thereof.” The evident meaning of these last words is, not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards, except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired.

Indians born within the territorial limits of' the United States, members of, and owing immediate allegiance to, one of the Indian tribes (an alien, though dependent, power), although in a geographical sense born in the United States, are no more “born in the United States and.subject to the jurisdiction thereof,” within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations.

This view is confirmedby the second section of the Fourteenth Amendment, which provides that “ representatives shall be apportioned among the several States according-to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” Slavery having been abolished, and the persons formerly held as slaves made citizens, this clause fixing the apportionment of representatives has abrogated so much of the corresponding clause of the original Constitution as counted only three-fifths of such persons. But Indians not taxed are still • excluded from the count, for the reason that they are not citizens. ■ Their absolute exclusion from the basis of representation, in which all other persons are now included, is wholly inconsistent with their being considered citizens.

So the further provision of the second section for a propor*103tionate reduction of the basis of the representation of any State in which the right to vote for presidential electors, representa-, tives in Congress, or executive or judicial officers .or members of the legislature of a. State, is denied, except for participar tion in rebellion or other crime, to “ any of the male inhabitants of such State, being twenty-one years of age and citizens of the United States,” cannot apply to a denial of the .elective franchise to Indians not taxed, who form no ’ part of the people entitled to representation.

It is also worthy of remark, that the language used, about the same time, by the very Congress which framed the Fourteenth Amendment, in the first section of the Civil Rights Act of April 9, 1866, declaring who shall be citizens of the United States, is “ all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed.” 14 Stat. 27; Rev. Stat. § 1992.

Such Indians, then, not being citizens by birth, can only become citizens in the second way mentioned in the Fourteenth Amendment, by being “ naturalized in the United States,” by or under some treaty or statute.

The action of the political departments of the government,. not only after the proposal of the Amendment by Congress to the States in June, 1866, but since the proclamation 'in July, 1868, of its ratification by the requisite number of States, accords with this construction.

While the Amendment was pending before the legislatures of the several States, treaties .containing provisions for the naturalization of members of Indian tribes as citizens of the United States were made on July 4, 1866, with the Delawares, in 1867 Avith various tribes in Kansas, and with the Pottawatomies, and in April, 1868, with the Sioux. 14 Stat. 794, 796; 15 Stat. 513, 532, 533, 637.

The treaty of 1867 with the Kansas Indians strildngly illustrates the principle that no one can become a citizen of a nation vrithout its consent, and directly contradicts the supposition that a member of an Indian tribe can’ at will be alternately a citizen of the United States and a member of the tribe.

That treaty not only provided for the' naturalization of mem*104bers of the Ottawa, Miami, Peoria, and other tribes, and their families, upon their making declaration, before the District Court of the United States, of their intention to become citizens ; 15 Stat. 517, 520, 521; but, after reciting that some of the Wyandotts, who had become citizens under, the treaty of 1855, were “unfitted for the responsibilities of citizenship;” a,nd enacting that a register of the whole people of this tribe, resident in Kansas or elsewhere, should be taken, under the direction of- the Secretary of the Interior, showing the names of “ all who declafe their desire to be and remain Indians and in a tribal condition,” and of incompetents and orphans as described in the treaty of 1855, and that such persons, and those only, should thereafter constitute the' tribe; it provided that “no one who has heretofore consented to become a citizen, nor the wife or children of any such person, shall be allowed to become members* of the tribe, except by the free consent of the tribe after its noy organization, and unless the agent shall certify that such party is, through poverty or incapacity, unfit to continue in the exercise of the responsibilities of citizenship of the United States, and likely to become a public charge.” 15 Stat. 514, 516.

Since the ratification of the Fourteenth Amendment, Congress has-passed several acts for naturalizing Indians of certain tribes, which would have been superfluous if they were, or might become, without any action of the government, citizens of the United States.

By the act of July 15, 1870, ch. 296, § 10, for instance, it was provided that if at any time thereafter any of the Winnebago Indians in the State of Minnesota should desire to become citizens of the United States, they should make application to the District Court of the Uniteid States for the District of Minnesota, and in open court/make the same proof and take the same oath of allegiance as is provided by law for the naturalization of aliens, and should afeo make proof to the satisfaction of the court that they were sufficiently intelligent and prudent to control their affairs and interests, that they had adopted the habits of,civilized life, and had for at least five years before been able to support themselves and their families; and there*105upon they should be declared by the court to be citizens of the United States, the declaration entered of record, and a certificate thereof given to the applicant; and the Secretary of the Interior, upon presentation of that certificate, might issue to them patents in fee simple, with power of alienation, of the lands already held by them in severalty, and might cause to be paid to them their proportion of the money and effects of the'.tribe held in' trust under any treaty or law of the United States; and thereupon such persons should cease to be members of the tribe, and the lands so patented to them should be subject to levy, taxation, and sale, in like manner with the property of other citizens. Í6 Stat. 361. By the act of March 3,1873, ch..332,. § 3, similar provision was made for the naturalization of any adult members of the Miami tribe in Kansas, and of their minor children. 17 Stat. 632. And the act of March 3, 1865, ch. 127, before referred to, making corresponding provision for the naturalization of any of the chiefs, warriors, or heads of families of the Stockbridge Indians, is re-enacted in section 2312 of the Kevised Statutes.

The act of January. 25, 1871, ch. 38, for the relief of the Stockbridge and Munsee Indians íd the State of • Wisconsin, provided that “ for the purpose of determining the persons who -are members of said tribes and the future relation of each to the government of the United States,” two rolls should be prepared under the direction of the Commissioner of Indian Affairs, signed by the sachem and councillors of the tribe, certified by the person selected by the Commissioner to • superintend the same, and returned to the Commissioner; the one, to be denominated the citizen roll, of the names of all such persons of full age, and their families, “as signify their desire to separate their relations with said tribe, and to become citizens of the United States,” and the other, to be denominated the Indian roll, of the names of all such “ as desire to retain their tribal character and continue under the care and guardianship of the United States;” and.that those rolls, so made and returned, should be held as a full surrender and relinquishment, on the part of all those of the first class, of all' claims to be-known or considered as members of the tribe, or to be interested *106in any provision made or to be made by the United States for its benefit, “ and they and their ■ descendants shall thenceforth be admitted to all the rights and privileges of citizens of the United States.” 16 Stat’. 406.

The Pension Act exempts Indian claimants of pensions for service in the army or navy from the obligation to take the oath to support the Constitution of the United States. Act of March 3, 1873, ch. 234, § 28 ; 17 Stat. 574; Rev. Stat. § 4721.

The recent statutes concerning homesteads are quite inconsistent with the theory that Indians do or can make themselves independent citizens by living apart from their tribe. The act of March 3, 1875, ch. 131, § 15, allowed to “'any Indian born in the United States, who is the head of a family, or who has arrived at the age of twenty-one years, and who has abandoned, or may hereafter abandon, his tribal relations,” the benefit of the homestead acts, but only upon condition of his “ making satisfactory proof of such abandonment, under rules to be prescribed by the Secretary of the Interior; ” and further provided that his title in the homestead should be absolutely inalienable for five years from the date of the patent, and that he should be entitled to share in all annuities, tribal funds, lands and other property, as if had maintained his tribal relations. 18 Stat. 420. And the act of March 3,1884, ch. 180, § 1, while it allows Indians “ located on public lands ” to “ avail themselves of khe homestead laws as fully and to the same extent as may now he done by citizens of the United States,” provides that the form and the legal effect of the patent shall be that the United States does and will hold the land for twenty-five years in trust for the Indian making the entry, and his widow and heirs, and will then convey it in fee to him or them. 23 Stat. 96.'

The national legislation has tended more and more towards the education and civilization of the Indians, and fitting them to be citizens. Rut the question whether any Indian tribes, or any members thereof, have become so far advanced in civilization, that they should be let out of the state of pupilage,' and admitted to the privileges and responsibilities of citizenship, is a question to be decided by the nation whose wards they are *107and whose citizens they seek to become, and not by each Indian for'himself.

There is nothing in the statutes or decisions, referred to by counsel, to control the conclusion to which we have been brought by a consideration of the language of the Fourteenth Amendment, and of the condition of the Indians at the time of its proposal and ratification.

The act of July 27,1868, ch. 249, declaring the right of expatriation to be a natural and inherent right of all people, and reciting that “ in the recognition of this principle this government has freely received emigrants from all nations, and invested them with the rights of citizenship,” while it affirms the right of ’ every man to expatriate himself from one country, contains nothing to enable him to become a citizen of another, without being naturalized under its authority. 15 Stat. 223; Kev. Stat. § 1999.

The provision of the act of Congress of March 3,1871, ch. 120, that “ hereafter no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe or power with whom the United States may contract by treaty,” is coupled with a provision that the obligation of any treaty already lawfully made is hot to be thereby invalidated or impaired; and its utmost possible effect is to require the Indian tribes to be dealt with for the future through the legislative and not through the treaty-making power. 16 Stat. 566 ; Rev. Stat. § 2079.

In the case of United States v. Elm, 23 Int. Rev. Rec. 419, decided by Judge Wallace in the District Court of the United States for the Northern District of New York, the Indian Avho was held to have a right to vote in 1876 was born in the State of New York, one of the remnants of a tribe which had ceased to exist as á tribe in that State; and by a statute of the State it had been enacted that any native Indian might purchase, take, hold and convey lands, and, whenever he should have become a freeholder to the value of one hundred dollars, should be liable to taxation, and to the civil jurisdiction of the courts, in the same manner and to the same extent as a citizen. N. Y. Stat. 1843, ch. 87. The condition of the tribe from which he *108derived his origin, so far as any fragments of it remained within the State of New York, resembled the condition of those Indian nations of which Mr. Justice Johnson said in Fletcher v. Peck, 6 Cranch, 87, 146, that they “ have totally extinguished their national fire, and submitted themselves to the laws of the States; ” and which Mr. Justice McLean had in view, when he observed in Worcester v. Georgia, 6 Pet. 515, 580, that in some of the old States, “ where small remnants of tribes remain, surrounded by white population, and who, by their reduced numbers, had lost the power of self-government, the laws of the State have been extended over them, for the protection of their persons and property.” See also, as to the condition of Indians in Massachusetts, remnants of tribes never recognized by the treaties or legislative or.exeoutive acts of the United States as distinct political communities, Danzell v. Webquish, 108 Mass. 133; Pells v. Webquish , 129 Mass. 469 ; Mass. Stat. 1862, ch. 184; 1869, ch. 463.

The passages cited as favorable to the plaintiff from the opinions delivered in Ex parte Kenyon, 5 Dillon, 385, 390, in Ex parte Reynolds, 5 Dillon, 394, 397, and in United States v. Crook, 5 Dillon, 453, 464, were obiter dicta. The Case of Reynolds was an indictment in the Circuit Court of the United States for the "Western District of Arkansas for a murder in^ the Indian country, of which that court had jurisdiction if either the accused or the dead man was not an Indian, and was decided by Judge Parker in favor of the jurisdiction, upon the ground that both were -white men, and that, conceding the one to be an Indian by marriage, the other never was an Indian in any sense. 5 Dillon, 397, 404. Each of the other two cases was a writ of habeas corpus; and any person, whether a citizen or not, unlawfully restrained of his .liberty, is entitled to that writ. Case of the Hottentot Venus, 13 East, 195 ; Case of Dos Santos, 2 Brock. 493; In re Kaine, 14 How. 103. In Kenyon's Case, Judge Parker held that the court in which the prisoner had been convicted had no jurisdiction of the subject matter, because the place of the commission of the act was beyond the territorial limits of its jurisdiction, and, as was truly said "this alone would bé conclusive of this case.” 5 Dillon, *109390. In United States v. Crook, the Ponca Indians were discharged by Judge Dundy because the military officers who held them were taking them to the Indian Territory by force and without any lawful authority; 5 Dillon, 468; and in the case at bar, as the record before us shows, that learned judge concurred in the judgment below for the defendant.

The law upon the question before us has been well stated by Judge Deady in the District Court of the United States for the District of Oregon. In giving judgment against the plaintiff in a case resembling the case at bar, he said: “ Being born a member of ‘,an independent political community ’ — the Chinook —he was not born subject to the jurisdiction of the, United .States — not born in its allegiance.” McKay v. Campbell, 2 Sawyer, 118, 134. And in a later • case he said: “ But an Indian cannot make himself a citizen of the United States without the consent and co-operation of the government. The fact that he has abandoned his nomadic life or tribal relations, and adopted the habits and manners of civilized people, may be a good reason why he should be made a citizen of the United States, but does not of itself make him one. To be a citizen of the United States is a political privilege which no one, not born to, can assume without its consent in some form. The Indians in Oregon, not being born subject to the jurisdiction of the United States, were not born citizens thereof, and I am not aware of any law or treaty by which any of them have been made so since.” United States v. Osborne, 6 Sawyer, 406, 409.

Upon the question whether any action of a State can confer rights of citizenship on Indians of a tribe still recognized by the United States as retaining its tribal existence, we need not, and do not, express an opinion, because the State of Nebraska is not shown to have taken any action affecting the condition of this plaintiff. See Chirac v. Chirac, 2 Wheat. 259; Fellows v. Blacksmith, 19 How. 366; United States v. Holliday, 3 Wall. 407, 420; United States v. Joseph, 94 U. S. 614, 618.

The plaintiff, not being a citizen of the United States under the Fourteenth Amendment of the Constitution, has been deprived of no right secured by the Fifteenth Amendment, and cannot maintain this action. Judgment affirmed.

*110Mr. Justice Harlan,

with, whom concurred Mr. Justice Woods, dissenting.

Mr. Justice Woods and myself feel constrained to express our dissent from the interpretation which our brethren give to that clause of the Fourteenth Amendment which provides that “ all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

The case, as presented by the record, is this i John Elk, the plaintiff in error, is a person of the Indian race. He was born within the territorial limits of the United States. His parents were, at the time of his birth, members of one of the Indian tribes in this country. More than a year, however, .prior to his application to be registered as a voter in the city of Omaha, he had severed all relations with his tribe,'and, as .he alleges, fully and completely surrendered himself to the jurisdiction of the United States. Such surrender was, of course, involved in his act of becoming, as the demurrer to the petition admits that he did become, a bona fide resident of the State of Nebraska. When he applied in 1880 to be registered as a voter, he possessed, as is also admitted, the qualifications of age and residence in State,' county, and ward, required for electors by the Oonstitution and laws of that State. It is likewise conceded that he was entitled to be so registered, if, at the time of his application, he was a citizen of the United States; for, by the Constitution and laws of Nebraska every citizen of the United States, having the necessary qualifications of age and residence in State, county, and ward, is entitled to vote. Whéther he was such citizen is the single question presented by this writ of error.

It is said that the petition contains no averment that Elk was-taxed in the State in which he resides, or -had ever been treated by her as a citizen. It is evident that the court would not have held him to be a citizen of the United States, even if the petition had contained a-direct averment that he was taxed; because its judgment, in legal effect, is, that, although born within the territorial limits of the United States, he could not, if at his birth a member of an Indian tribe, acquire national citizenship *111by force of the Fourteenth Amendment, but only in pursuance of some statute or treaty providing for his naturalization. It would, therefore, seem unnecessary to inquire whether he was taxed at the time of his application to be registered as a voter; for, if the words “all persons bom ... in the United States and subject to the jurisdiction thereof,” were not intended to embrace Indians born in tribal relations, but who subsequently became bona fide residents of the several States, then, manifestly, the legal status of such Indians is not altered by the fact that they are taxed in those States.

While denying that national citizenship, as conferred by that amendment, necessarily depends upon the inquiry whether the person claiming it is taxed in the State of his residence, or has property therein from which taxes may be derived, we submit that the petition does sufficiently show that the plaintiff is taxed, that is, belongs to the class which, by the laws of Nebraska, are subject to taxation. By the Constitution and laws of Nebraska all real and personal property, in that State, are subject to assessment and taxation. Every person of full age and sound mind, being a resident thereof, is required to list all of his personal property for taxation. Const. Neb., art. 9, § 1; Compiled Stat. of Neb., ch. 'T'T, pp. 400-1. Of these provisions upon the subject of taxation this court will.take judicial notice. Good pleading did not require that they should be set forth, at large, in the petition.' Consequently, an averment that the plaintiff is a citizen and bona fide resident of Nebraska implies, in law, that he is subject to taxation, and is taxed, in that State. Further: The plaintiff' has become so far incorporated with the mass of the people of Nebraska that, being, as the petition avers, a citizen and resident thereof, he constitutes a part of her militia. Comp. Stat. Neb., ch. 56. He may, being no longer a member of an Indian tribe, sue and be sued in her courts. And he is counted in every apportionment of representation in the legislature; the requirement of her Constitution being, that “ the legislature shall apportion the Senators and Bepresentatives according to the number of inhabitants, excluding Indians not taxed and soldiers and officers of the United States army.” Const. Neb., art. 3, § 1.

*112At the adoption of the Constitution there were, in many of the States, Indians, not members of any tribe, who constituted a part of the ^people for whose benefit the State governments were established. This is apparent from that clause of article 1, section 3, which requires, in the apportionment of. representatives and direct taxes among the several States “ according to their respective numbers,” the exclusion of “ Indians not taxed.” This implies that there were, at that time, in the United States, Indians who Were taxed, that is, were subject to- taxation; by the laws of the State of which they were residents. Indians not taxed were those who held tribal relations, and, therefore, were not subject to the authority of any State, and were subject only to the authority of the United States under the power conferred upon Congress in reference to Indian tribes in this country. The same provision is preserved in the Fourteenth Amendment; for, now, as at the adoption of the Constitution, Indians in the several States, who are taxed by their laws, are counted in establishing the basis of representation in Congress.

By the act of April 9, 1866, entitled “ An Act to protect all persons in the United States in their civil rights, and furnish means for their vindication ” (IT Stat. 27), it is provided that “all persons born in the United,States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the' United States.” This, so far as we are aware, is the first general enactment making persons of the Indian race citizens of the United States.' Numerous statutes and treaties previously provided for all the individual members of particular Indian tribes becoming, in certain contingencies, citizens of the United States; But the act of 1866 reached Indians not in tribal relations. Beyond question, by that act, national citizenship was conferred directly upon all persons in this country, of whatever race (excluding only “ Indians not taxed”), who were born within the territorial limits of the United States, and were not subject to any foreign power. Surely every one must admit that an -Indian, residing in one of the States, and subject to taxation there, became, by force alone of the act of 1866, a citizen of the United States, al*113though he may have been, when born, a member of a tribe.' The exclusion of Indians .not taxed evinced a purpose to include those subject to taxation in. the State of their residence. Language could not express that purpose with more distinctness than does the act of 1866. Any doubt upon the subject, in re-' spect to persons of the Indian race residing in the United States or Territories, and not members of a tribe, will be removed by an examination of the debates, in which many distinguished ■statesmen and lawyers participated in the Senate of the United States when the act of 1866 was under consideration.

In the bill as originally reported from the Judiciary Committee there were no words excluding “ Indians not taxed ” from the citizenship proposed to be granted. Attention being called to this fact, the friends of - the measure disclaimed any purpose to make citizens of those who were in tribal reía-. tions with governments of their own. In order to meet, that objection, while conforming to the wishes of those desiring to invest with citizenship all Indians permanently separated from their tribes, and who, by reason of their residence away from their tribes, constituted a part of the people- under the jurisdiction of the United States, Mr. Trumbull, who reported the bill, modified it by inserting the words “ excluding-Indians not taxed.” What was intended by that modification appears from the following language used by him in debate:

“ Of course we cannot declare the wild Indians who do not recognize the government of the United States, who are not subject to our laws, with whom we make treaties, who have their own laws, who have their own regulations, whom we do not intend to interfere With or punish for the commission of crimes one upon the other, -to be the subjects of the United States in the sense of being citizens... They must be excepted. The Constitution of the United States excludes them from the enumeration of the population of the United States when it says that Indians not taxed are to be excluded. It has occurred to me that, perhaps, the amendment would meet the views of all gentlemen, which used these constitutional words, and said that all persons born in the United States, excluding *114Indians not taxed, and not subject to any foreign power, shall be deemed citizens of the United States.” Cong. Globe, 1st Sess., 39th Congress, p. 527.

In replying to the objections urged by Mr. Hendricks to the bill even as amended, Senator Trumbull said:

“Does the Senator from Indiana want the wild roaming Indians, not taxed, not subject to our authority, to be citizens of the United States — persons that are not to be counted in our government ? If he does not, let him not object to this amendment that brings in even [only] ' the Indian when he shall have cast off his wild habits,- and submitted to the ■laws of organised society and become a citisenl Ibid. 528.

. The entire debate shows, with singular clearness, indeed, with absolute certainty, that no Senator who participated in it, whether in favor of or in opposition to the measure, doubted that the bill, as passed, admitted, and was intended to admit, to national citizenship Indians who abandoned their tribal relations, and became residents of one of the States or Territories, within the full jurisdiction of the United States. It was so interpreted by President Johnson, who, in his veto message, said:

“By the first section of the bill all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States. This provision comprehends the Chinese of the Pacific States, Indians subject to taxation, the people called Gypsies, as well as the entire race designated as blacks, persons of color, negroes, mulattoes, and persons of African blood. Every individual of those races, born in the United States, is, by the bill, made a citizen of the United States.”

It would seem manifest, from this brief review of the history of the act of 1866, that one purpose of that legislation was to confer national citizenship upon a part of the Indian race in this country — such of them, at least, as resided in one of the States or Territories, and were subject to taxation and other public burdens. And it is to be observed that, whoever was included within the terms of the grant, contained in that act, became citizens of the United States, without any record of *115their names being made. The citizenship so conferred vas made to depend wholly upon the existence of the facts which the statute declared to be a condition precedent to the grant taking effect.

At the same session of the Congress which passed the act of 1866, the Fourteenth Amendment was approved and submitted to the States for adoption. Those who sustained the former urged the adoption of the latter. An examination of the debates in Congress, pending the consideration of that amend-, ment, null show that there was no purpose, on the part of those who framed it or of those who sustained it by their votes, to abandon the policy inaugurated by the act of 1866, of admitting to national citizenship such Indians as were separated from their tribes, and were residents of one of the States or of one of the Territories, outside of any reservation or territory set apart for the exclusive use and occupancy of Indian tribes.

Prior to the adoption of the Fourteenth Amendment numerous statutes were passed with reference to particular bodies of, Indians, under which all the individual members of such bodies, upon the dissolution of their tribal relations-or upon the division of their lands derived from the government, became or were entitled to become, citizens of the United States by forcé alone of the statute, without observing any of the forms required by the naturalization laws in the case of a foreigner becoming a citizen of the United States.' Such was the statute of March 3, 1839, 5 Stat. 349, relating to the Brothertown Indians, in the then Territory of Wisconsin. . Congress consented that the lands reserved for their use might be partitioned among the individuals composing that tribe. The act required the partition to be evidenced by a report and map to be filed with the Secretary of the Interior, by whom it should be transmitted to the President; whereupon, the act proceeded, “ the said Brothertown Indians, and each and every of them, shall then be deemed to be, and, from that time forth, are hereby declared to be, citizens of the United States to all intents and purposes, and shall be entitled to all the rights, privileges, and Immunities of such citizens,” &c. Similar legislation was enacted with *116reference to the Stocfcbridge Indians. 5 Stát. 646-7.- Legislation of this character has an important bearing upon the present, question, for it shows that, prior to the adoption of the Fourteenth Amendment it had often been the policy of Congress to admit persons of „the. Indian race to citizenship upon their ceasing to have tribal relations, and without the slightest reference to the fact that they were born in tribal relations. It shows also that the citizenship thus granted was not, in every instance, required to be evidenced by the record of a court. If it be said that the statutes, prior to 1866, providing for the admission of Indians to citizenship, required, in their execution, that a record be made of the names of those who thus acquired citizenship, our answer is, that it was entirely competent for Cqngress to dispense, as it did in the act of 1866, with any such record being made in a court or in any department of the government. And certainly it must be conceded that, except in cases of persons “ naturalized in the United States” (which phrase refers only to those who are embraced by the naturalization laws and not - to Indians), the Fourteenth Amendment does not require the citizenship granted by it to be evidenced by the record of any court, or* of any department of the government. Such citizenship passes to the person, of whatever iace, who is embraced by its provisions, leaving the fact of citizenship to be determined, when it shall become necessary to do so in the course of legal inquiry, in the same way that questions as to one’s nativity, domicile, or residence are determined.

If it be also said that,- since the adoption of the Fourteenth Amendment, Congress' has enacted statutes providing for the citizenship of Indians, our answer is, that those statutes had reference to tribes, the members of which could not, while they continued in tribal relations, acquire the citizenship granted by the Amendment. Those statutes did not deal with individual Indians who had severed their tribal connections and were residents within the States of the Union, under the complete jurisdiction of the United States. .

There is nothing in the history of the adoption .of the Fourteenth Amendment which, in our opinion, justifies the conclu*117sion that only those Indians are included in its grant of national’ citizenship who were, at the time of their hirth, subject to the complete jurisdiction of the United States. As already stated, according to the doctrines of the court, in this case — if we do not wholly misapprehend the effect of its decisión — the plaintiff, if born while his parents were members of an Indian tribe,' would 'not be embraced by the amendment, even had he been, at the time it was adopted, a permanent resident of one of the States, subject to taxation, and, in fact, paying property and personal taxes, to the full extent required of the white race in the same State.

When the Fourteenth Amendment was pending in the Senate of the United States, Ml: Doolittle moved to insert after the words “ subject to the jurisdiction thereof,” the words “excluding Indians not taxed.” His avowed object in so amending the measure was to exclude, beyond all question, from the proposed grant of citizenship, tribal Indians who — since they were, in a sense, subject to the jurisdiction of the United States — might be regarded as embraced in the grant. The proposition was opposed by Mr. Trumbull and other friends of the proposed constitutional amendment, upon the ground that, the words “ Indians not taxed ” might be misconstrued, and, also, because those words were unnecessary, in that the phrase “subject to the jurisdiction thereof” embraced only those who were subject to the complete jurisdiction of the United States, which could not be properly said of Indians in tribal relations. But it was distinctly announced by the friends of the measure that they intended to include in the grant of national citizenship Indians who were within the jurisdiction of the States, and subject to their laws, because such Indians would be completely under the jurisdiction of the United States. Said Mr. Trumbull: “ It is only those who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens; and there can be no objection to the proposition that such persons should be citizens.” Congress. Globe, Pt. 4, 1st. Sess., 39th Cong., pp. 2890 to 2893. Alluding to the phrase “ Indians not taxed,” he remarked that the language of the proposed constitutional amendment was *118better than that .of the act of 1866 passed at the same session. He observed:

“ There is a difficulty about the words ‘ Indians not taxed.’ Perhaps one of the reasons why I think so is because of the persistency with which the Senator from Indiana himself insisted that ..the phrase ‘Indians not taxed,’ the very words which the Senator from Wisconsin wishes to insert here, would exclude everybody that did not pay a tax; that that was the meaning of it; we must take it literally. The Senator from Maryland did not agree to that nor did I, but, if the Senator from Indiana was right, it Avould receive a construction which, I am sure, the Senator from Wisconsin would not be for, for if these Indians come within our limits and AAÚthin our jurisdiction and are- civilized, he would just as soon make a citizen of a poor Indian as of the rich Indian.” Ibid. 2894.

A careful examination of all that was said by Senators and Representatives, pending the consideration by Congress of the Fourteenth Amendment, justifies us in saying that every one who participated in the debates, whether for or against the amendment, believed that in the form in Avhich it was approved by Congress it granted, and was intended to grant, national citizenship to every person of the Indian race in this country who Avas unconnected Avith any tribe, and who resided, in good faith, outside of Indian reservations and within one of the States or Territories of the Union. This fact is, Ave think, entitled to great weight in determining the meaning and scope of the amendment. Lithographic Co. v. Sarony, 111 U. S. 57.

In this connection we refer to an elaborate report made by Mr. Carpenter,, to the Senate of the United States, in behalf of its judiciary committee, on the 14th of December, 1870. The report was made ifi obedience to-an instruction to inquire as to the effect of the Fourteenth Amendment upon the treaties which the United States had with various Indian tribes of the country. The report says: “ For these reasons your committee do not hesitate to say that, the Indian tribes Avithin the limits of the United States, and the individuals, members of such tribes, while they adhere to and form a part of the tribes to Avhich they belong, are not, within the meaning of the *119Fourteenth Amendment, £ subject to the jurisdiction ’ of the United States; and, therefore, that such Indians have not become citizens of the United States by virtue of that amendment ; and, if your committee are correct in this conclusion, it follows that the treaties heretofore made- between the United States and the Indian tribes are not annulled by that amendment.^ The report closes with this significant language: ££ It is pertinent to say, in concluding this report, that treaty relations can properly exist with Indian tribes or nations only, and that, when the members of any Indian tribe are scattered, they are merged in the mass of our people, and become equally subject to the jurisdiction of the United States.”

The question before us has been examined by a writer upon constitutional law whose views are entitled to great respect. Judge Cooley, referring to the definition of national citizenship as contained in the Fourteenth Amendment, says:

“ By the express terms of the amendment, persons of foreign birth, who have never renounced the allegiance to which they were born, though they may have a residence in this country, more or less permanent, for business, instruction, or pleasure, are not citizens. Neither are the aboriginal inhabitants of the country citizens, so long as they preserve their tribal relations and recognize the headship of their chiefs, notwithstanding that, as against the action of our own people, they are under the protection of the lawrs, and may be said to owe a qualified allegiance to the government. When living within territory over Avhich the laAvs, either State or Territorial, are extended, they are protected by, and, at the same time, held amenable to, those laAvs in all their intercourse Avith the body politic, and' with the individuals composing it; but they are also, as a quasi-foreign people, regarded as being under the direction and tutelage of the general government, and subjected to peculiar regulations as dependent communities. They are £ subject to the jurisdiction ’ of the United States only in a much qualified sense; and it would be obviously inconsistent with the semi-independent character of such a tribe, and Avith the obedience they are expected to render to their tribal head, that they should be vested with the complete rights, or, on the other *120hand,.subjected to the full responsibilities of American citizens. It 'would not, for a moment, be contended that such was the effect of this amendment.

When, however, the tribal relations are .dissolved, when theTieadsMp of the chief or the authority of the tribe is no longer recognized, and. the individual Indian, turning.' his back upon his former mode of life, makes himself a member of the civilized community, the case is wholly altered. He then no longer acknowledges a divided allegiance ; he joins himself to the body politic; he gives evidence of his purpose to adopt the habits and customs of civilized life; and as his case is then within the terms of this amendment, it would seem that his right to protection, in person, property and privilege, must be as complete as the allegiance to the government to which hte must then be held; as complete, in short, as that of any other native born inhabitant.” 2 Story’s Const., Cooley’s Edi., § 1933, p. 654.

To the same effect are Ex parte Kenyon, 5 Dillon, 390 ; Ex parte Reynolds, Ib. 307; United States v. Crook, Ib. 454; United States v. Elm, Dist. Ct. U. S., Northern District of New York, 23 Int. Rev. Rec. 419.

It seems to us that the Fourteenth Amendment, in so far as it was intended to confer national citizenship upon persons of the Indian race,.is robbed of its vital force by a construction which excludes from such citizenship those who, although born in tribal relations, are within the complete jurisdiction of the United States. There were, in some of our States and Territories at the time the amendment was submitted by Congress, many Indians who had finally left their tribes and come within the complete jurisdiction of the United States. They were as fully prepared for citizenship as were or are vast numbers of the white and colored races in the same localities. Is it conceivable that the statesmen who framed, the Coagress which submitted, and the people who adopted that amendment, intended to confer citizenship, national and State, upon the entire population in this country of African descent (the larger part of which was shortly before held in slavery), and by the same constitutional provision to exclude from such citizenship Indians *121who had never been in slavery, and who, by becoming bona fide residents'of States and Territories within the complete jurisdiction of the United States, had evinced a purpose to abandon their former mode of life and become a part of the People of the United States? If this question be answered in the negative, as we think it must be, then we are justified in withholding our assent to the doctrine which excludes the plaintiff from the body of citizens of the United States, upon the ground that his parents were, when he was born, members of an Indian tribe. For, if he can be excluded upon any such ground, it must necessarily follow that the Fourteenth Amendment, did not grant citizenship even to Indians who, although born in tribal relations, were, at its adoption, severed from their tribes, and subject to the complete jurisdiction, as well'of the United States as of the State or Territory in which they resided.

Our brethren, it seems to us, construe the Fourteenth Amendment as if it read: “ All persons born subject to the jurisdiction of, or naturalized in, the United States, are citizens of the United States and of the State in which they reside; ” whereas the amendment, as it is, implies in respect of. persons born in this country, that they may claim the rights of national citizenship from and- after the moment they become subject to the- complete jurisdiction of • the United States. This would not include the children, born in this country, of a foreign minister, for the reason that, under the fiction of extra-territoriality as recognized by international law, such minister, “ though actually in a foreign coun- • try, is considered still to remain within the territory of his own State,” and, consequently, he continues “subject to the laws of his own country, both with respect to his personal status, and his rights of property; and his children, though born in a foreign country, are considered as natives.” Halleck’s International Law, ch. 10, § 12. Nor was plaintiff born without the jurisdiction of the United States in the same sense that the subject of a foreign State, born within the territory of that State, may be said to have been born without the jurisdiction of our government. For according to the decision in Cherokee *122Nation v. Georgia, 5 Pet. 17, the tribe, of which the parents of plaintiff were members, was not “ a foreign State, in the sense of the Constitution,” but a domestic dependent people, ‘ in a state of pupilage,” and “ 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 an invasion of our territory, and an act of hostility.” They occupied territory, which the court in that case said, composed “ a part of the United States,” the title to which this nation asserted independent of their will. “ In all our intercourse with foreign nations,” said Chief Justice Marshall, in the same case, “ in our commercial regulations, in any attempt -at intercourse between Indians and foreign nations, they are considered as within the jurisdictional limits of the United States' subject to many of those restraints which are imposed upon our citizens. . . . 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 Great Father.” And again, in United States v. Rogers, 4 How. 572, this court, speaking by Chief Justice Taney, said that it was “ too firmly and clearly established to admit of dispute that the Indian tribes, residing within the territorial limits of the United States, are subject to their authority.” The Cherokee Tobacco, 11 Wall. 616.

Porn, therefore, in the territory under the dominion, and within the jurisdictional limits of the United States, plaintiff has acquired, as Avas his undoubted right, a residence in one of the States, with her consent, and is subject to taxation and to all other burdens imposed by her upon residents of every race* If he did not acquire national citizenship on abandoning his tribe and becoming, by residence in one of the States, subject to the complete jurisdiction of the United States, then the Fourteenth Amendment has Avholly failed to accomplish, in respect of the Indian race, Avhat, we think, was' intended by it; and there is still in this country a despised and rejected class of persons, with no nationality whatever; who, born in our territory, owing no allegiance to any foreign power, and subject, as residents of the States, to all the burdens of govern*123ment, are yet not members of any political community nor entitled to any of the rights, privileges, or immunities of citizens of the United States.

LONE WOLF v. HITCHCOCK.

APPEAL PROM THE COURT OP APPEALS OP THE DISTRICT OP COLUMBIA.

No. 275.

Argued October 23, 1902.

Decided January 5, 1903.

The provisions in article 12 of the Medicine Lodge treaty of 1867 with the Kiowa and Comanche Indians to the effect that no treaty for the cession of any part of the reservation therein described, which may be held in common, shall be of any force or validity as against the Indians unless executed and signed by at least three fourths .of all the adult male Indians occupying the same, cannot be adjudged to materially limit and qualify the controlling authority of Congress in respect to the care and protection of the Indians and to deprive Congress, in a possible emergency, when the necessity might be urgent for a partition and disposal of the tribal lands, of all power to act if the assent of three fourths of all the male Indians could not be obtained. Congress has always exercised plenary authority over the tribal relations of the Indians and the power has always been deemed a political one not subject to be controlled by the courts.

In view of the legislative power possessed by Congress over treaties with the Indians, and Indian tribal property, even if a subsequent agreement or treaty purporting to be signed by three fourths of all the male Indians was not signed and amendments to such subsequent treaty were not submitted to the Indians, as all these matters were solely within the domain Of the legislative authority, the action of Congress is conclusive upon the courts.

As the act of June 6,1900, as to the disposition of these lands was enacted at a time when the tribal relations between the confederated tribes of the Kiowas, Comanches and Apaches still existed, and that statute and the statutes *554supplementary thereto, dealt with the disposition of tribal property and purported to give an adequate consideration for the surplus lands not allotted among the Indians or reserved for their benefit, such legislation was constitutional and this court will presume that Congress acted in perfect good faith and exercised its best judgment in the premises, and as Congress possessed full power in the matter, the judiciary cannot question or inquire into the motives which prompted the enactment of such legislation.

Ik 1867 a treaty .was concluded with the Kiowa and Comanche tribes of Indians, and such other friendly tribes as might be. united with them, setting apart a reservation for the use of such Indians. By a separate treaty the Apache tribe of Indians was incorporated'with the twoformer-nanjepl, and became entitled to share in the benefits of the reservation. 15 Stat. 581, 589.

The first named treaty is usually called the Medicine Lodge treaty. By the sixth.article thereof it was provided that heads of families might select a tract of land within the reservation, not exceeding 320 acres in extent, which should thereafter cease to be held in common, and should be for the exclusive possession.of the Indian making the selection, so long as he or his family might continue to cultivate the land. The twelfth article of the treaty was as follows:

“ Article 12. No treaty for the cession of any portion or part of the reservation herein described, which may be held in common, shall be of any validity or force as against the said Indians, unless executed and signed by at least three fourths of all the adult'male Indians occupying the same, and no cession by the tribe shall be understood or construed in such manner as to deprive, without his consent, any individual member of the tribe of his rights to any tract of land selected by him as provided in article III (YI) of' this treaty.”

The three tribes settled under the treaties upon the described land. On October 6, 1892, 456 male adult members of the confederated tribes signed, with three commissioners representing the United States, an agreement concerning the reservation. The Indian agent, in a certificate appended to the agreement, represented that there were then 562 male adults in the three tribes. Senate Ex. Doc. No. 27, 52d Congress, second session, *555page 17. Four hundred and fifty-six male adults therefore constituted more than three fourths of the certified number of total male adults in the three tribes. In form the agreement was a proposed treaty, the terms of which, in substance, provided for a surrender to the United States of the rights of the tribes in the reservation, for allotments out of such-lands to the Indians in severalty, the fee simple title tó- be conveyed to the allottees or their heirs after the expiration of twenty-five years; and the payment or setting apart for the benefit of the tribes of two million dollars as the consideration for the surplus of land over and above the allotments which might be made to •the Indians. It was provided that sundry named friends of the Indians (among such persons being the Indian agent and an army officer) u should each be entitled to all the benefits, in land only, conferred under this agreement, the same as if members of said tribes.” Eliminating 350,000 acres of mountainous land, the quantity of surplus lands, suitable for farming and grazing purposes was estimated at 2,150,000 acres. Concerning the payment to be made for these surplus lands, the commission, in their report to the President announcing the termination of the negotiations, said (Senate Ex. Doc. No. 17, second session, 52d Congress):

“ In this conneetion it is proper to add that the commission agreed with the Indians to incorporate the following in their report, which is now done:

“ The Indians upon this reservation seem. to believe (but whether-from an exercise of their own judgment or from the advice of others the commission cannot determine) that their surplus land is worth two and one half million dollars, and • Congress may be induced to give them that much for it. Thére-fore, in compliance with their request, we report that they desire to be heard through an attorney and a delegation to Washington upon that question, the agreement signed, however, to be effective upon ratification, no matter what Congress may do with their appeal for the extra half million dollars.”

In transmitting the agreement to the Secretary of the Interior, the Commissioner of Indian Affairs said:

“ The price paid, while considerably in exGess of that paid *556to the Cheyennes and Arapahoes, seems to be fair and reasonable, both to the government and the Indians, the land being doubtless of better quality than that in the Cheyenne and Arapahoe reservation.”

Attention was directed to the provision in the agreement in favor- of the Indian agent and an army officer, and it was suggested that to permit' them to avail thereof would establish a bad precedent.

Soon after the signing of the foregoing agreement it was claimed by the Indians that their assent had been obtained by fraudulent misrepresentations of its terms by the interpreters, and. it was asserted that the agreement should not be held binding upon the tribes because three fourths of the adult male members had not assented thereto,, as was required by the twelfth article of the Medicine Lodge treaty.

•Obviously, in consequence of the policy embodied in section 2079 of the Revised Statutes, departing from the former custom of dealing with Indian affairs by treaty and providing for legislative action on such subjects, various bills were introduced in both Houses of Congress designed to give legal effect to the agreement made by the Indians in 1892. These bills were referred to the proper committees, and before such committees the Indians- presented their objections to the propriety of giving effect to the agreement. (H. R. Doc. Ho. 431, 55th Congress, second session.) In 1898 the Committee on Indian Affairs of the House of Representatives unanimously reported a- bill for the execution of the agreement made with the Indians. The report of the committee recited that a favorable conclusion had been reached by the committee “after the fullest hearings from delegations of the Indian tribes and all parties at interest.” (H. R. Doc. Ho. 419, first session, 56th Congress, p. 5.)

The bill thus reported did not - exactly conform to the agreement as signed by the Indians-. ■ -It modified the agreement by changing the time for making the allotments, and it also provided that the proceeds of the surplus lands remaining after allotments to the Indians should be held to await the judicial decision of a claim asserted by the Choctaw and Chickasaw *557tribes of Indians to the surplus lands. This claim was based upon a treaty made in 1866, by which the two tribes ceded the reservation in question, it being contended that the lands were impressed with a trust in favor of the ceding tribes, and that whenever the reservation was abandoned, so much of it as was not allotted to the confederated Indians of the Comanche, Kiowa and Apache tribes reverted to the Choctaws and Ohick-asaws. ■

The bill just referred to passed the House of Representatives on May 16, 1898. (31st Cong. Rec. p. 4947.) "When the bill reached the Senate that body, on January 25, 1899, adopted a resolution calling upon the Secretary of the Interior for information as to whether the signatures attached to the agreement comprised three fourths of the male adults of the tribes. In response the Secretary of the Interior informed the Senate, under date of January 28, 1899, that the records of the department “ failed to show a census of these Indians for the year 1892,” but that “from a roll used in making a payment to them in January and February, 1893, it appeared that there were 725 males over eighteen years of age, of whom 639 were twenty-one years and over.” The Secretary, further called attention to the fact that by the agreement of 1892 a right of selection was conferred upon each member of the tribes over eighteen years of age, and observed:

“ If 18 years and over be held to be the legal age of those who were authorized to sign the agreement, the number of persons who actually signed was 87 less than three fourths of the adult male membership of the tribes; and if 21 years be held to be the minimum age, then 23 less than three fourths signed , the agreement. In either event, less than three fourths of the male adults appear to have so. signed.”

. With, this information before it the bill was favorably reported by the Committee on Indian Affairs of the Senate, but did not pass that body.

At the first session of the following Congress (the Fifty-sixth) bills were' introduced in both the Senate and House of Representatives substantially like that which has just been noticed. (Senate, 1352; H. R. 905.)

*558In the meanwhile, about October, 1899, the Indians had, at a general council at which 571 male adults of the tribes purported’ to be present, protested against the execution of the provisions of the agreement of 1892, and adopted a memorial to Congress, praying that that body should not give effect to the agreement. This memorial was forwarded to the Secretary of the Interior by the Commissioner of Indian Affairs with lengthy comments, pointing out the fact that the Indians claimed that their signatures to the agreement had been procured by fraud and that the legal number of Indians had not signed the agreement, and that the previous bills and bills then pending contemplated modification of the agreement in important particulars without the consent of the Indians. This communication from the Commissioner of Indian Affairs, together with the memorial of the Indians, were transmitted by the Secretary of the Interior to Congress. (Senate Doc. Ho. 76; H. R. Doc. No. 333; first session, Fifty-sixth. Congress.) Attention was called to the fact that although by the agreement of October 6, 1892, one .half of each allotment was contemplated tabe agricultural land, there was only sufficient agricultural' land in the entire reservation to average thirty acres per Indian. After setting out the charges of fraud and complaints respecting the proposed amendments designed to be made to the agreement, as above stated, particular complaint was made of the provision in .the agreement of 1892 as to allotments in severalty among the Indians of lands for agricultural purposes. After reciting that the tribal lands were not adapted to such purposes, but were suitable for grazing, the memorial proceeded' as follows:

“We submit that the provision for lands to be allotted to us. under this treaty are insufficient, because it is evident we cannot, on account of the climate of our section, which renders the maturity of crops uncertain, become a successful farming com: munity; that we, or whoever else occupies these lands, will have to depend upon the cattle industry for revenue and support. And we therefore pray, if we cannot be granted the privilege of keeping our reservation under the treaty made with us in 1868, and known as the Medicine Lodge treaty, that au*559thority be granted for the consideration of a new treaty that will make the allowance of land to be allotted to us sufficient for us to graze upon it enough stock cattle, the increase from which we can market for support of ourselves and families.”

■With the papers just referred to before it, the House Committee on Indian Affairs, in February, 1900, favorably reported a bill to give effect to the agreement of -1892.

On January 19, 1900, an act was passed by the Senate, entitled “ An act to ratify an agreement made with the Indians of the Fort Hall Indian reservation in Idaho, and making an appropriation to carry the same into effect.” In February, 1900, the House Committee on Indian Affairs, having before it the memorial of the Indians transmitted by the Secretary of the Interior, and also having for consideration the Senate bill just alluded to, reported that bill back to the House favorably, with certain amendments. (H. R. Doc. No. 419, 56th Congress, first session.) One of such amendments consisted in adding to. the bill in question, as section 6, a provision to execute the agreement made with the Kiowa, Comanche and Apache Indians in 1892. Although the bill thus reported embodied the execution of the agreement last referred to, the title of the bill was not changed, and consequently referred only to the execution of the agreement made with the Indians of the Fort Hall reservation in Idaho. The provisions’ thus embodied in section 6 of the bill in question substantially conformed to those contained in the bill which had previously passed the House, except that the previous enactment on this subject was changed so as to do away with the necessity for making to each Indian one half of his allotment in agricultural land and the other half in grazing land. In addition a clause was inserted in the bill providing for the setting apart of a large amount of grazing land to be used in common by the Indians. The provision in question was as follows :

“ That in addition to the allotment of lands to said Indians as provided for in this agreement, the Secretary of the Interior shall set aside for the use in common for said Indian tribes four hundred and eighty thousand acres of grazing lands, to be *560selected by tbe Secretary of the Interior, either in one or more tracts as will best subserve the interest of said Indians.”

The provision of the agreement in favor of the Indian agent and army officer was also eliminated.

The bill, moreover, exempted the money consideration for the surplus lands from all claims for Indian depredations, and expressly provided that in the event the claim of the Choctaws and Chickasaws was ultimately sustained, the consideration referred to should be subject to the further action of Congress. In this bill as in previous ones provision was made for allotments to the Indians, the opening of the surplus land for settlement, etc. The bill became a lav? by concurrence of the Senate in the amendments adopted by the House as just stated.

Thereafter, by acts approved on January 4,1901, 31 Stat. 727, c. 8; March 3, 1901, 31 Stat. 1078, c. 832, and March 3, 1901, 31 Stat. 1093, c. 846, authority was given to extend the time for making allotments and opening of the surplus land for settlement for a period not exceeding eight months from December 6,1900 ; appropriations were made for surveys in connection with allotments and setting apart of grazing lands; and authority was conferred to establish counties and county ■ seats, townsites, etc., and proclaim the surplus lands open for settlement by white people.

On June 6,190.1, a bill was filed on the equity side of the Supreme Court of the District of Columbia, wherein Lone Wolf (one of the appellants herein) was named as complainant, suing for himself as well as for all other members of the confederated tribes of the Kiowa, Comanche and Apache Indians, residing in the Territory of Oklahoma. The present appellees (the Secretary of the Interior, the Commissioner of Indian Affairs and the Commissioner of the General Land Office), were made respondents to the bill. Subsequently, by an amendment to the bill, members of the Kiowa, Comanche and Apache tribes were joined with Lone Wolf as parties complainant.

The bill recited the establishing and occupancy of the reservation in Oklahoma by the confederated tribes of Kiowas, Comanches and Apaches, the signing of the agreement of October 6, 1892, and the subsequent proceedings which have been detailed, - *561culminating in the passage of the act of June 6, 1900, and the acts of Congress supplementary to said act. In substance it was further charged in the bill that the agreement had not been signed as required by the Medicine Lodge treaty, that is, by three fourths of the male adult members of the tribe, and that the signatures thereto had been obtained by fraudulent misrepresentations and concealment, similar to those recited in' the memorial signed at the 1899 council. In addition to the griev-. anee previously stated in the memorial, the • charge was made that the interpreters falsely represented, when the said treaty was being considered by the Indians, that the treaty provided “ for the sale of their surplus lands at some time in the future at the price of $2.50 per acre; ” whereas, in truth and in fact, “ by the terms of said treaty, only $1.00 an acre is-allowed for said surplus lands,” which sum, it was charged, was an amount far below the real value of said lands. It was also averred that portions of the signed agreement had been changed by Congress without submitting such changes to the Indians for their consideration. - Based upon the foregoing allegations, it was alleged that so much of said act of Congress of June 6, 19Q0, and so much of said acts supplementary thereto and amend-atory thereof as provided for the taking effect of said agreement,' the allotment of certain lands mentioned therein to members of said - Indian tribes, the .surveying, laying out, and platting tównsites and locating county seats on said lands, and the ceding to the United States and the opening to settlement by white men of two million acres of said lands, were enacted in violation of the property rights of the said Kiowa, Comanche and Apache Indians, and if carried into effect would deprive said Indians of their lands without due process of law, and that said parts of said acts were contrary to the Constitution of the United States, and were void, and conferred no right, power or duty upon the respondents to do or perform any of the acts or things enjoined or required by the acts of Congress in question. Alleging the intention of the respondents to carry into effect the aforesaid claimed unconstitutional and void acts, and asking discovery by answers to interrogatories propounded to the respondents, the allowance of a temporary restraining order, and a final decree *562awarding a perpetual injunction was prayed, to restrain the commission by the respondents of the alleged unlawful acts by them threatened to be done. General relief was also prayed.

On January 6, 1901, a rule to show cause why' a temporary injunction should not be granted was issued. In response to this rule an affidavit of the Secretary of the Interior was filed, in which in substance it was averred that the complainant (Lone Wolf) and his wife and daughter had selected allotments- under . the act of June 6, 1900, and the same had been approved by the Secretary of the Interior and that all other members of the tribes, excepting twelve, had also accepted and retained allotments in severalty, and that the. greater part thereof had been approved befbre the bringing of this suit. It was also averred that the 480,000 acres-of grazing land provided to be set apart, in the act of June 6, 1900, for the use by the Indians in common, had been so set apart'prior to the institution of the suit, “ with the approval of a-council composed of chiefs and headmen of said Indians.” Thereupon an affidavit verified by Lone Wolf was filed, in which in effect he denied that he had accepted an allotment of lands under the act of June 6, 1900, and the acts supplementary to and amendatory thereof. Thereafter, bn June 17, 1901, leave was- given to amend the bill and the same was amended, as heretofore stated, by adding additional parties complainant and by providing a substituted first paragraph of the bill, in which was set forth, among other things, that the three tribes, at a general council held on June 7,-1901, had voted to institute all legal and other proceedings necessary to be taken, to prevent the carrying into effect of the legislation complained of.

The Supreme Court of the District on June 21, 1901, denied the application for k temporary injunction. The cause was thereafter submitted to the court on a demurrer to the bill as amended. The demurrer was sustained, and the .complainants electing not to plead further, on June-' 26, 1901, a decree was entered in favor of the respondents. An appeal was thereupon taken to the Court of Appeals of the District. ■ While this appeal was pending, the President issued a proclamation, dated July 4, 1901, (32 Stat. Áppx. Proclamations, 11,) in which it was *563ordered that the surplus lands ceded by the Comanche, Kiowa and Apache and other tribes of Indians should be opened to entry and settlement on August 6,1901. Among other things, it was recited in the proclamation that all the conditions required by law to be performed prior to the opening of the lands to settlement and entry had been performed. It was also therein recited that, in pursuance of the act of Congress ratifying' the agreement, allotments of land in severalty had been regularly made to each member of the Comanche, Kiowa and Apache tribes of Indians; the lands occupied by religious societies or other organizations for religious or educational work among the Indians had been regularly allotted and confirmed to such societies and organizations, respectively; and the Secretary of the Interior, out of the lands ceded by the agreement, had regularly selected and set aside for the use' in common for said Comanche, Kiowa and Apache tribes of Indians, four hundred and eighty thousand acres of grazing lands.

The Court of Appeals (without passing on a motion which had been made to dismiss the appeal) affirmed the decree of the court below, and overruled a motion for reargument. 19 App. D. C. 315. An appeal was allowed, and the decree of affirmance is now here for review.

Mr. William M. Springer .and Mr. Hampton L. Carson for appellants. . .

Mr. Assistant Attorney General Van Deranter for appellee.

Me. Justice White,

after making the foregoing statement, delivered the opinion of the court.

By the sixth article of the first of the two treaties referred to in the preceding statement, proclaimed on August 25, 1868, 15 Stat. 581, it was provided that heads of families of the" tribes affected by the treaty might select, within the reservation, a tract of land of not exceeding 320 acres in extent, which should thereafter cease to be held in- common, and should be for the exclusive, possession of the Indian making the selection,*564so long as he or his family might continue to cultivate the land. The twelfth article reads as follows:

“ Article 12. No treaty for thé cession of any portion or part of. the reservation herein described, which may be held in common, shall be of any validity or force as against the said Indians, unless executed and signed by at least three fourths of all the adult male Indians occupying the same, and no cession by the tribe shall be understood or construed in such manner as to deprive, without his consent, any individual member of the tribe of his rights to any tract of land selected by him as provided in article III (VI) of this treaty.”

The appellants base their right to relief on the proposition that by the effect of the article just quoted the confederated tribes of Kiowas, Comanches and Apaches were vested with an interest in the lands held in common within the reservation, which interest could not be divested by Congress in any other mode than that specified in the said twelfth article, and that as a result of the said stipulation the interest of the Indians in. the common lands fell within the protection of the Fifth Amendment to the Constitution of the United States, and such interest — indirectly at least — came under the control of the judicial branch of the government. We are unable to yield our assent to this view.

The contention in effect ignores the status' of the contracting Indians and the relation of dependency they bore and continue to bear towards the government of the United States. .To uphold the claim would be to adjudge that thé indirect operation of the treaty was to materially limit and qualify the controlling authority of Congress in respect to the care and protection of the Indians, and to deprive Congress, in a possible emergency, when the necessity might be urgent for a partition and disposal of the tribal lands, of all power to act, if the assent of the Indians could not be obtained.

Now, it is true that in decisions of this court, the Indian right of occupancy of tribal .lands, whether declared in a treaty or otherwise created, has been stated to be sacred, or, as sometimes expressed, as sacred as the fee of the United States in the same lands. Johnson v. McIntosh, (1823) 8 Wheat. 543, 574; *565Cherokee Nation v. Georgia, (1831) 5 Pet. 1, 48; Worcester v. Georgia, (1832) 6 Pet. 515, 581; United States v. Cook, (1873) 19 Wall. 591, 592; Leavenworth &c. R. R. Co. v. United States, (1875) 92 U. S. 733, 755; Beecher v. Wetherby, (1877) 95 U. S. 517, 525. But in none of these cases was there involved a controversy between Indians and. the government respecting the power of Congress to administer the property of the Indians. The questions considered in the cases referred to, which either directly or indirectly had relation to the nature of the property rights of the Indians, concerned the character and extent of such rights as respected States or individuals. In one of the cited cases it was clearly pointed - out that Congress possessed a paramount power over the property of the Indians, by reason of its exercise of guardianship over their interests, and that such authority might be implied, even though opposed to the strict letter of a treaty with the Indians. Thus, in Beecher v. Wetherby, 95 U. S. 517, discussing the claim that there had been a prior reservation of land by treaty to the use of a certain tribe of Indians, the court said (p. 525):

“ But the right which the Indians held was only that of occupancy. The fee was in the United States, subject to that right, and could be transferred by them whenever they chose. The grantee, it is true, would take only the naked fee, and could not disturb the occupancy of the Indians; that occupancy could only be interfered with or determined by the United States. It is to be presumed that in this matter the United States would be governed by such considerations of justice as would control a Christian people in their treatment of an ignorant and dependent race. Be that as it may, the propriety or -justice of their action towards the Indians with respect to their lands is a question of governmental policy, arid is not a- matter open to discussion in a controversy between third parties, neither of whom derives title from the Indians.”

Plenary authority over the tribal relations of the Indians has" been exercised by Congress from the beginning,, and the power has always been deemed a political one, not subject tobe controlled by the judicial department of the government. Until the year 1871 the policy was pursued of dealing with the *566Indian tribes by means of treaties, and, of course, a moral obligation rested upon Congress tb act in good faith in performing the stipulations entered into on its behalf. Eut, as with treaties made with foreign nations, Chinese Exclusion Case, 130 U. S. 581, 600, the legislative power might pass laws in conflict with treaties made .with the Indians. Thomas v. Gay, 169 U. S. 264, 270; Ward v. Race Horse, 163 U. S. 504, 511; Spalding v. Chandler, 160 U. S. 394, 405; Missouri, Kansas & Texas Ry. Co. v. Roberts, 152 U. S. 114, 117; The Cherokee Tobacco, 11 Wall. 616.

The power exists to abrogate the provisions of an Indian treaty, though presumably such power will be exercised only when circumstances arise which will not only justify the government in disregarding the stipulations of the treaty, but may demand, in the interest of the country and the Indians themselves, that it should do so. When, therefore, treaties were entered into between the United States and a tribe of Indians it was never doubted that the power to abrogate existed in Congress, and that in a contingency such power might be availed, of from considerations of governmental policy, particularly if consistent with perfect good faith towards the Indians. In United States v. Kagama, (1885) 118 U. S. 375, speaking of the Indians, the court said (p. 382):

“ After an experience of a hundred years of the treaty-making system of government, Congress has determined upon a new departure — to govern them by acts of Congress. This is seen in the act of 'March 3,1871, embodied in § 2079 of the Kevised Statutes: ‘ No Indian nation or tribe, within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power, with whom the United States may contract by treaty • but no obligation of any treaty lawfully made and ratified with any such Indian nation or tribe prior to March third, eighteen hundred and seventy-one, shall be hereby invalidated or impaired.’ ” .

In upholding the validity of an act of Congress which conferred jurisdiction upon the courts of the'United States for certain crimes committed on an Indian reservation within a State, the court said (p. 383):

*567“ It seems to us that this is within the competency of Congress. These Indian tribes are the wards of the nation. They are communities dependent on the United States. Dependent largely for their daily food. Dependent for their political, rights. They owe no allegiance to the States, and receive from them no protection. Because of the local ill feeling, the people of the States where they are found are often their deadliest enemies. From their very weakness and helplessness, so largely due to the course of dealing of the Federal government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power. This has always been recognized by the Executive and by Congress, and by this court, whenever the question has arisen.

“ The power of the general government over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection, as well as to the safety of those among whom they dwell. It must exist in that government, because it never has existed anywhere else, because the theatre of its exercise is within the geographical limits of the United States, because it has never been denied, and because it alone can enforce its laws on all the tribes.”

That Indians who had not been fully emancipated from the control and protection of the United States are subject, at least so far as the tribal lands were concerned, to be controlled by direct legislation of Congress, is also declared in Choctaw Nation v. United States, 119 U. S. 1, 27, and Stephens v. Cherokee Nation, 174 U. S. 445, 483.

In view of the legislative- power possessed by Congress over treaties with the Indians and Indian tribal property, we may not specially consider the contentions pressed upon our notice that the signing by the Indians of the agreement of October 6, 1892, was obtained by fraudulent misrepresentations and concealment, that the requisite three fourths of adult male Indians had not' signed, as required by the twelfth article of the treaty of 1867, and that the treaty as signed had been amended by Congress without submitting such amendments to the action *568of the Indians, since all these matters, in any event, were solely within the domain of the legislative authority and its action is conclusive upon the courts.

The act of June 6, 1900, which is complained of in the bill, was enacted at a time when the tribal relations between the confederated tribes, of Kiowas, Comanches and Apaches still existed, and that statute and the statutes supplementary thereto dealt with the disposition of tribal property and purported to give an adequate consideration for the surplus lands not allotted among the Indians or reserved for their benefit. Indeed, the controversy which this case presents is concluded by the decision in Cherokee Nation v. Hitchcock, 187 U. S. 294, decided at this term, where it was held that full administrative power was possessed by Congress over Indian tribal property. In effect, the action of Congress now complained of was but an exercise of such power, a mere change in the form of investment of Indian tribal property, the property of those who, as we have held, were in substantial effect the wards of the government. "We must presume that Congress acted in perfect good faith in the dealings with the Indians of which complaint is made, and that the legislative branch of the government exercised its best judgment in the premises. In any event, as Congress possessed' full power in the matter; the judiciary cannot question or inquire into the motives which prompted the enactment of this legislation. If injury was occasioned, which we do not wish to be understood as implying, by the use made by Congress of its power, relief must be sought by an appeal to that body for redress and not to the courts. The legislation in question was constitutional, and the demurrer to the bill was therefore rightly sustained.

The motion to dismiss does not challenge jurisdiction over the subject matter. Without expressly referring to the propositions of fact upon which it proceeds, suffice it to say that we think it need not be further adverted to, since, for the reasons previously given and the nature of the controversy, we think the decree below should be

Affirmed.

MR. J ctstioe Harlan concurs in the result.

OLIPHANT v. SUQUAMISH INDIAN TRIBE et al.

No. 76-5729.

Argued January 9, 1978

Decided March 6, 1978*

Rehnquist, J., delivered the opinion of the Court, in which Stewart, White, Blackmun, Powell, and Stevens, JJ., joined. Marshall, J., filed a dissenting opinion, in which Burger, C. J., joined, post, p. 212. Brennan, J., took no part in the consideration or decision of the cases.

Philip P. Malone argued the cause and filed briefs for petitioners. Slade Oorton, Attorney General, argued the cause for the State of Washington as amicus curiae urging reversal. With him on the brief were Edward B. Mackie, Deputy *192Attorney General, and Timothy R. Malone, Assistant Attorney General.

Barry D. Ernstoff argued the cause for respondents. With him on the brief was Steven H. Chestnut. H. Bartow Farr III argued the cause for the United States as amicus curiae urging affirmance. On the brief were Solicitor General McCree, Assistant Attorneys General Days and Moorman, Louis F. Claiborne, and Miriam R. Eisenstein.†

*

Together with Belgarde v. Suquamish Indian Tribe et al., on certiorari before judgment to the same court (see this Court’s Rule 23 (5)).

†

William J. Janklow, Attorney General, and David L. Knudson and Tom D. Tobin, Special Assistant Attorneys General, filed a brief for the State of South Dakota et al. as amici curiae urging reversal, joined by the Attorneys General for their respective States as follows: Michael T. Greely of Montana., Paul L. Douglas of Nebraska., Robert F. List of Nevada, Toney Anaya of New Mexico, Allen I. Olson of North Dalcota, James A. Redden of Oregon, and V. Frank Mendicino of Wyoming.

Briefs of amici curiae urging affirmance were filed by Arthur Lazarus, Jr., for the Association on American Indian Affairs, Inc., et al.; by Bryan N. Freeman, Z. Simpson Cox, and Richard B. Wilks for the Colorado Indian Tribes et al.; by Robert L. Pirtle for the Confederated Tribes of the Colville Indian Reservation, Washington, et al.; by Charles A. Hobbs for the National Congress of American Indians et al.; and by Stephen G. Boyden and Scott C. Pugsley for the Ute Indian Tribe of the Uintah and Ouray Reservation.

Briefs of amici curiae were filed by C. Danny Clem for Kitsap County; by Michael Taylor and Daniel A. Raas for the Lummi Indian Tribe et al.; by David H. Getches and Ralph W. Johnson for the National American Indian Court Judges Assn.; and by George B. Chiistensen and Joseph S. Fontana for the National Tribal Chairmen’s Assn.

Mr. Justice Nehnquist

delivered the opinion of the Court.

Two hundred years ago, the area bordering Puget Sound consisted of a large number of politically autonomous Indian villages, each occupied by from a few dozen to over 100 Indians. These loosely related villages were aggregated into a series of Indian tribes, one of which, the Suquamish, has become the focal point of this litigation. By the 1855 Treaty of Point Elliott, 12 Stat. 927, the Suquamish Indian Tribe *193relinquished all rights that it might have had in the lands of the State of Washington and agreed to settle on a 7,276-acre reservation near Port Madison, Wash. Located on Puget Sound across from the city of Seattle, the Port Madison Reservation is a checkerboard of tribal community land, allotted Indian lands, property held in fee simple by non-Indians, and various roads and public highways maintained by Kitsap County.1

The Suquamish Indians are governed by a tribal government which in 1973 adopted a Law and Order Code. The Code, which covers a variety of offenses from theft to rape, purports to extend the Tribe’s criminal jurisdiction over both Indians and non-Indians.2 Proceedings are held in the Suquamish *194Indian Provisional Court. Pursuant to the Indian Civil Rights Act of 1968, 82 Stat. 77, 25 U. S. C. § 1302, defendants are entitled to many of the due process protections accorded to defendants in federal or state criminal proceedings.3 However, the guarantees are not identical. Non-Indians, for example, are excluded from Suquamish tribal court juries.4

Both petitioners are non-Indian residents of the Port Madison Reservation. Petitioner Mark David Oliphant was arrested by tribal authorities during the Suquamish’s annual Chief Seattle Days celebration and charged with assaulting a tribal officer and resisting arrest. After arraignment before the tribal court, Oliphant was released on his own recognizance. Petitioner Daniel B. Belgarde was arrested by tribal authorities after an alleged high-speed race along the Reservation highways that only ended when Belgarde collided with a tribal police vehicle. Belgarde posted bail and was released. Six days later he was arraigned and charged under the tribal Code with “recklessly endangering another person” and injuring tribal property. Tribal court proceedings against both petitioners have been stayed pending a decision in this case.

Both petitioners applied for a writ of habeas corpus to the United States District Court for the Western District of Washington. Petitioners argued that the Suquamish Indian Provisional Court does not have criminal jurisdiction over non-Indians. In separate proceedings, the District Court dis*195agreed with petitioners’ argument and denied the petitions. On August 24,1976, the Court of Appeals for the Ninth Circuit affirmed the denial of habeas corpus in the case of petitioner Oliphant. Oliphant v. Schlie, 544 F. 2d 1007. Petitioner Belgarde’s appeal is still pending before the Court of Appeals.5 We granted certiorari, 431 U. S. 964, to decide whether Indian tribal courts have criminal jurisdiction over non-Indians. We decide that they do not.

I

Respondents do not contend that their exercise of criminal jurisdiction over non-Indians stems from affirmative congressional authorization or treaty provision.6 Instead, respondents *196urge that such jurisdiction flows automatically from the “Tribe’s retained inherent powers of government over the Port Madison Indian Reservation.” Seizing on language in our opinions describing Indian tribes as “quasi-sovereign entities,” see, e. g., Morton v. Mancari, 417 U. S. 535, 554 (1974), the Court of Appeals agreed and held that Indian tribes, “though conquered and dependent, retain those powers of autonomous states that are neither inconsistent with their status nor expressly terminated by Congress.” According to the Court of Appeals, criminal jurisdiction over anyone committing an offense on the reservation is a “sine qua non” of such powers.

The Suquamish Indian Tribe does not stand alone today in its assumption of criminal jurisdiction over non-Indians. Of the 127 reservation court systems that currently exercise criminal jurisdiction in the United States, 33 purport to extend that jurisdiction to non-Indians.7 Twelve other Indian tribes have enacted ordinances which would permit the assumption of criminal jurisdiction over non-Indians. Like the Suquamish these tribes claim authority to try non-Indians not on the basis of congressional statute or treaty provision but by reason of their retained national sovereignty.

The effort by Indian tribal courts to exercise criminal *197jurisdiction over non-Indians, however, is a relatively new phenomenon. And where the effort has been made in the past, it has been held that the jurisdiction did not exist. Until the middle of this century, few Indian tribes maintained any semblance of a formal court system. Offenses by one Indian against another were usually handled by social and religious pressure and not by formal judicial processes; emphasis was on restitution rather than on punishment. In 1834 the Commissioner of Indian Affairs described the then status of Indian criminal systems: “With the exception of two or three tribes, who have within a few years past attempted to establish some few laws and regulations among themselves, the Indian tribes are without laws, and the chiefs without much authority to exercise any restraint.” H. It. Rep. No. 474, 23d Cong., 1st Sess., 91 (1834).

It is therefore not surprising to find no specific discussion of the problem before us in the volumes of the United States Reports. But the problem did not lie entirely dormant for two centuries. A few tribes during the 19th century did have formal criminal systems. From the earliest treaties with these tribes, it was apparently assumed that the tribes did not have criminal jurisdiction over non-Indians absent a congressional statute or treaty provision to that effect. For example, the 1830 Treaty with the Choctaw Indian Tribe, which had one of the most sophisticated of tribal structures, guaranteed to the Tribe “the jurisdiction and government of all the persons and property that may be within their limits.” Despite the broad terms of this governmental guarantee, however, the Choctaws at the conclusion of this treaty provision “express a wish that Congress may grant to the Choctaws the right of punishing by their own laws any white man who shall come into their nation, and infringe any of their national regulations.” 8 Art. 4, 7 Stat. 333 (emphasis added). Such a *198request for affirmative congressional authority is inconsistent with respondents’ belief that criminal jurisdiction over non-Indians is inherent in tribal sovereignty. Faced by attempts *199of the Choctaw Tribe to try non-Indian offenders in the early 1800’s the United States Attorneys General also concluded that the Choctaws did not have criminal jurisdiction over non-Indians absent congressional authority. See 2 Op. Atty. Gen. 693 (1834); 7 Op. Atty. Gen. 174 (1855). According to the Attorney General in 1834, tribal criminal jurisdiction over non-Indians is, inter alia, inconsistent with treaty provisions recognizing the sovereignty of the United States over the territory assigned to the Indian nation and the dependence of the Indians on the United States.

At least one court has previously considered the power of Indian courts to try non-Indians and it also held against jurisdiction.9 In Ex parte Kenyon, 14 F. Cas. 353 (No. 7,720) *200(WD Ark. 1878), Judge Isaac C. Parker, who as District Court Judge for the Western District of Arkansas was constantly-exposed to the legal relationships between Indians and non-Indians,10 held that to give an Indian tribal court “jurisdiction of the person of an offender, such offender must be an Indian.” Id., at 355. The conclusion of Judge Parker was reaffirmed *201only recently in a 1970 opinion of the Solicitor of the Department of the Interior. See Criminal Jurisdiction of Indian Tribes over Non-Indians, 77 I. D. 113.11

While Congress was concerned almost from its beginning with the special problems of law enforcement on the Indian reservations, it did not initially address itself to the problem of tribal jurisdiction over non-Indians. For the reasons previously stated, there was little reason to be concerned with assertions of tribal court jurisdiction over non-Indians because of the absence of formal tribal judicial systems. Instead, Congress' concern was with providing effective protection for the Indians “from the violences of the lawless part of our frontier inhabitants.'' Seventh Annual Address of President George Washington, 1 Messages and Papers of the Presidents, 1789-1897, pp. 181, 185 (J. Richardson ed., 1897). Without such protection, it was felt that “all the exertions of the Government to prevent destructive retaliations by the Indians will prove fruitless and all our present agreeable prospects illusory.” Ibid. Beginning with the Trade and Intercourse Act of 1790, 1 Stat. 137, therefore, Congress assumed federal jurisdiction over offenses by non-Indians against Indians which “would be punishable by the laws of [the] state or district... if the offense had been committed against a citizen or white inhabitant thereof.” In 1817, Congress went one step further and extended federal enclave law to the Indian country; the only exception was for “any offence committed by one Indian against another.” 3 Stat. 383, now codified, as amended, 18 U. S. C. § 1152.

It was in 1834 that Congress was first directly faced with the prospect of Indians trying non-Indians. In the Western Territory bill,12 Congress proposed to create an Indian territory beyond the western-directed destination of the settlers; *202the territory was to be governed by a confederation of Indian tribes and was expected ultimately to become a State of the Union. While the bill would have created a political territory with broad governing powers, Congress was careful not to give the tribes of the territory criminal jurisdiction over United States officials and citizens traveling through the area.13 The reasons were quite practical :

“Officers, and persons in the service of the United States, and persons required to reside in the Indian country by treaty stipulations, must necessarily be placed under the protection, and subject to the laws of the United States. To persons merely travelling in the Indian country the same protection'is extended. The want of fixed laws, of competent tribunals of justice, which must for some time continue in the Indian country, absolutely requires for the peace of both sides that this protection should be extended.” H. R. Rep. No. 474, 23d Cong., 1st Sess., 18 (1834).

*203Congress’ concern over criminal jurisdiction in this proposed Indian Territory contrasts markedly with its total failure to address criminal jurisdiction over non-Indians on other reservations, which frequently bordered non-Indian settlements. The contrast suggests that Congress shared the view of the Executive Branch and lower federal courts that Indian tribal courts were without jurisdiction to try non-Indians.

This unspoken assumption was also evident in other congressional actions during the 19th century. In 1854, for example, Congress amended the Trade and Intercourse Act to proscribe the prosecution in federal court of an Indian who has already been tried in tribal court. § 3, 10 Stat. 270, now codified, as amended, 18 U. S. C. § 1152. No similar provision, such as would have been required- by parallel logic if tribal courts had jurisdiction over non-Indians, was enacted barring retrial of non-Indians. Similarly, in the Major Crimes Act of 1885, Congress placed under the jurisdiction of federal courts Indian offenders who commit certain specified major offenses. Act of Mar. 3, 1885, § 9, 23 Stat. 385, now codified, as amended, 18 U. S. C. § 1153. If tribal courts may try non-Indians, however, as respondents contend, those tribal courts are free to try non-Indians even for such major offenses as Congress may well have given the federal courts exclusive jurisdiction to try members of their own tribe committing the exact same offenses.14

*204In 1891, this Court recognized that Congress' various actions and inactions in regulating criminal jurisdiction on Indian reservations demonstrated an intent to reserve jurisdiction over non-Indians for the federal courts. In In re Mayfield, 141 U. S. 107, 115-116 (1891), the Court noted that the policy of Congress had been to allow the inhabitants of the Indian country “such power of self-government as was thought to be consistent with the safety of the white population with which they may have come in contact, and to encourage them as far as possible in raising themselves to our standard of civilization.'' The “general object” of the congressional statutes was to allow Indian nations criminal “jurisdiction of all controversies between Indians, or where a member of the nation is the only party to the proceeding, and to reserve to the courts of the United States jurisdiction of all actions to which its own citizens are parties on either side.” Ibid. While Congress never expressly forbade Indian tribes to impose criminal penalties on non-Indians, we now make express our implicit conclusion of nearly a century ago that Congress consistently believed this to be the necessary result of its repeated legislative actions.

In a 1960 Senate Report, that body expressly confirmed its *205assumption, that Indian tribal courts are without inherent jurisdiction to try non-Indians, and. must depend on the Federal Government for protection from intruders.15 In considering a statute that would prohibit unauthorized entry upon Indian land for the purpose of hunting or fishing, the Senate Report noted:

“The problem confronting Indian tribes with sizable reservations is that the United States provides no protection against trespassers comparable to the protection it gives to Federal property as exemplified by title 18, United States Code, section 1863 [trespass on national forest lands]. Indian property owners should have the same protection as other property owners. For example, a private hunting club may keep nonmembers off its game lands or it may issue a permit for a fee. One who comes on such lands without permission may be prosecuted under State law but a non-Indian trespasser on an Indian reservation enjoys immunity. This is by reason of the fact that Indian tribal law is enforcible against Indians only; not against non-Indians.

“Non-Indians are not subject to the jurisdiction of Indian courts and cannot be tried in Indian courts on trespass *206charges. Further, there are no Federal laws which can be invoked against trespassers.

“The committee has considered this bill and believes that the legislation is meritorious. The legislation will give to the Indian tribes and to individual Indian owners certain rights that now exist as to others, and fills a gap in the present law for the protection of their property.” S. Rep. No. 1686, 86th Cong., 2d Sess., 2-3 (1960) (emphasis added).

II

While not conclusive on the issue before us, the commonly shared presumption of Congress, the Executive Branch, and lower federal courts that tribal courts do not have the power to try non-Indians carries considerable weight. Cf. Draper v. United States, 164 U. S. 240, 245-247 (1896); Morris v. Hitchcock, 194 U. S. 384, 391-393 (1904); Warren Trading Post Co. v. Arizona Tax Comm’n, 380 U. S. 685, 690 (1965); DeCoteau v. District County Court, 420 U. S. 425, 444-445 (1975). “Indian law” draws principally upon the treaties drawn and executed by the Executive Branch and legislation passed by Congress. These instruments, which beyond their actual text form the backdrop for the intricate web of judicially made Indian law, cannot be interpreted in isolation but must be read in light of the common notions of the day and the assumptions of those who drafted them. Ibid.

While in isolation the Treaty of Point Elliott, 12 Stat. 927 (1855), would appear to be silent as to tribal criminal jurisdiction over non-Indians, the addition of historical perspective casts substantial doubt upon the existence of such jurisdiction.16 In the Ninth Article, for example, the Suquamish *207“acknowledge their dependence on the government of the United States.” As Mr. Chief Justice Marshall explained in Worcester v. Georgia, 6 Pet. 515, 551-552, 554 (1832), such an acknowledgment is not a mere abstract recognition of the United States’ sovereignty. “The Indian nations were, from their situation, necessarily dependent on [the United States] ... for their protection from lawless and injurious intrusions into their country.” Id., at 555. By acknowledging their dependence on the United States, in the Treaty of Point Elliott, the Suquamish were in all probability recognizing that the United States would arrest and try non-Indian intruders who came within their Reservation. Other pro*208visions of the Treaty also point to the absence of tribal jurisdiction. Thus the Tribe “agree [s] not to shelter or conceal offenders against the laws of the United States, but to deliver them up to the authorities for trial.” Head in conjunction with 18 U. S. C. § 1152, which extends federal enclave law to non-Indian offenses on Indian reservations, this provision implies that the Suquamish are to promptly deliver up any non-Indian offender, rather than try and punish him themselves.17

By themselves, these treaty provisions would probably not be sufficient to remove criminal jurisdiction over non-Indians if the Tribe otherwise retained such jurisdiction. But an examination of our earlier precedents satisfies us that, even ignoring treaty provisions and congressional policy, Indians do not have criminal jurisdiction over non-Indians absent affirmative delegation of such power by Congress. Indian tribes do retain elements of “quasi-sovereign” authority after ceding their lands to the United States and announcing their dependence on the Federal Government. See Cherokee Nation v. Georgia, 5 Pet. 1, 15 (1831). But the tribes’ retained powers are not such that they are limited only by specific restrictions in treaties or congressional enactments. As the Court of Appeals recognized, Indian tribes are prohibited from exercising both those powers of autonomous states that are expressly terminated by Congress and those powers “inconsistent with their status.” Oliphant v. Schlie, 544 F. 2d, at 1009 (emphasis added).

Indian reservations are “a part of the territory of the United *209States.” United States v. Rogers, 4 How. 567, 571 (1846). Indian tribes “hold and occupy [the reservations] with the assent of the United States, and under their authority.” Id., at 572. Upon incorporation into the territory of the United States, the Indian tribes thereby come under the territorial sovereignty of the United States and their exercise of separate power is constrained so as not to conflict with the interests of this overriding sovereignty. “[T]heir rights to complete sovereignty, as independent nations, [are] necessarily diminished.” Johnson v. M’Intosh, 8 Wheat. 543, 574 (1823).

We have already described some of the inherent limitations on tribal powers that stem from their incorporation into the United States. In Johnson v. M’Intosh, supra, we noted that the Indian tribes’ “power to dispose of the soil at their own will, to whomsoever they pleased,” was inherently lost to the overriding sovereignty of the United States. And in Cherokee Nation v. Georgia, supra, the Chief Justice observed that since Indian tribes are “completely under the sovereignty and dominion of the United States, . . . any attempt [by foreign nations] to acquire their lands, or to form a political connexion with them, would be considered by all as an invasion of our territory, and an act of hostility.” 5 Pet., at 17-18.

Nor are the intrinsic limitations on Indian tribal authority restricted to limitations on the tribes’ power to transfer lands or exercise external political sovereignty. In the first case to reach this Court dealing with the status of Indian tribes, Mr. Justice Johnson in a separate concurrence summarized the nature of the limitations inherently flowing from the overriding sovereignty of the United States as follows: “[T]he restrictions upon the right of soil in the Indians, amount . . . to an exclusion of all competitors [to the United States] from their markets; and the limitation upon their sovereignty amounts to the right of governing every person within their limits except themselves.” Fletcher v. Peck, 6 Cranch 87, 147 (1810) (emphasis added). Protection of territory within its *210external political boundaries is, of course, as central to the sovereign interests of the United States as it is to any other sovereign nation. But from the formation of the Union and the adoption of the Bill of Rights, the United States has manifested an equally great solicitude that its citizens be protected by the United States from unwarranted intrusions on their personal liberty. The power of the United States to. try and criminally punish is an important manifestation of the power to restrict personal liberty. By submitting to the overriding sovereignty of the United States, Indian tribes therefore necessarily give up their power to try non-Indian citizens of the United States except in a manner acceptable to Congress. This principle would have been obvious a century ago when most Indian tribes were characterized by a “want of fixed laws [and] of competent tribunals of justice.” H. R. Rep. No. 474, 23d Cong., 1st Sess., 18 (1834). It should be no less obvious today, even though present-day Indian tribal courts embody dramatic advances over their historical antecedents.

In Ex parte Crow Dog, 109 U. S. 556 (1883), the Court was faced with almost the inverse of the issue before us here— whether, prior to the passage of the Major Crimes Act, federal courts had jurisdiction to try Indians who had offended against fellow Indians on reservation land. I In concluding that criminal jurisdiction was exclusively in the tribe, it found particular guidance in the “nature and circumstances of the case.” The United States was seeking to extend United States

“law, by argument and inference only, . . . over aliens and strangers; over the members of a community separated by race [and] tradition, . . . from the authority and power which seeks to impose upon them the restraints of an external and unknown code . . . ; which judges them by a standard made by others and not for them .... It tries them, not by their peers, nor by the customs of *211their people, nor the law of their land, but by ... a different race, according to the law of a social state of which they have an imperfect conception . . . .” Id., at 571.

These considerations, applied here to the non-Indian rather than Indian offender, speak equally strongly against the validity of respondents’ contention that Indian tribes, although fully subordinated to the sovereignty of the United States, retain the power to try non-Indians according to their own customs and procedure.

As previously noted, Congress extended the jurisdiction of federal courts, in the Trade and Intercourse Act of 1790, to offenses committed by non-Indians against Indians within Indian Country. In doing so, Congress was careful to extend to the non-Indian offender the basic criminal rights that would attach in non-Indian related cases. Under respondents’ theory, however, Indian tribes would have been free to try the same non-Indians without these careful proceedings unless Congress affirmatively legislated to the contrary. Such an exercise of jurisdiction over non-Indian citizens of the United States would belie the tribes’ forfeiture of full sovereignty in return for the protection of the United States.

In summary, respondents’ position ignores that

“Indians are within the geographical limits of the United States. The soil and people within these limits are under the political control of the Government of the United States, or of the States of the Union. There exist in the broad domain of sovereignty but these two. There may be cities, counties, and other organized bodies with limited legislative functions, but they . . . exist in subordination to one or the other of these.” United States v. Kagama, 118 U. S. 375, 379 (1886).

We recognize that some Indian tribal court systems have become increasingly sophisticated and resemble in many *212respects their state counterparts. We also acknowledge that with the passage of the Indian Civil Rights Act of 1968, which extends certain basic procedural rights to anyone tried in Indian tribal court, many of the dangers that might have accompanied the exercise by tribal courts of criminal jurisdiction over non-Indians only a few decades ago have disappeared. Finally, we are not unaware of the prevalence of non-Indian crime on today’s reservations which the tribes forcefully argue requires the ability to try non-Indians.18 But these are considerations for Congress to weigh in deciding whether Indian tribes should finally be authorized to try non-Indians. They have little relevance to the principles which lead us to conclude that Indian tribes do not have inherent jurisdiction to try and to punish non-Indians. The judgments below are therefore

Reversed.

Mr. Justice Brennan took no part in the consideration or decision of these cases.

1

According to the District Court’s findings of fact: “[The] Port Madison Indian Reservation consists of approximately 7276 acres of which approximately 63% thereof is owned in fee simple absolute by non-Indians and the remainder 37% is Indian-owned lands subject to the trust status of the United States, consisting mostly of unimproved acreage upon which no persons reside. Residing on the reservation is an estimated population of approximately 2928 non-Indians living in 976 dwelling units. There lives on the reservation approximately 50 members of the Suquamish Indian Tribe. Within the reservation are numerous public highways of the State of Washington, public schools, public utilities and other facilities in which neither the Suquamish Indian Tribe nor the United States has any ownership or interest.” App. 75.

The Suquamish Indian Tribe, unlike many other Indian tribes, did not consent to non-Indian homesteading of unallotted or “surplus” lands within their reservation pursuant to 25 U. S. C. § 348 and 43 U. S. C. §§ 1195— 1197. Instead, the substantial non-Indian population on the Port Madison Reservation is primarily the result of the sale of Indian allotments to non-Indians by the Secretary of the Interior. Congressional legislation has allowed such sales where the allotments were in heirship, fell to “incompetents,” or were surrendered in lieu of other selections. The substantial non-Indian landholdings on the Reservation are also a result of the lifting of various trust restrictions, a factor which has enabled individual Indians to sell their allotments. See 25 U. S. C. §§ 349, 392.

2

Notices were placed in prominent places at the entrances to the Port Madison Reservation informing the public that entry onto the Reservation *194would be deemed implied consent to the criminaL jurisdiction of the Suquamish tribal court.

3

In Taiton v. Mayes, 163 U. S. 376 (1896), this Court held that the Bill of Rights in the Federal Constitution does not apply to Indian tribal governments.

4

The Indian Civil Rights Act of 1968 provides for “a trial by jury of not less than six persons,” 25 U. S. C. § 1302 (10), but the tribal court is not explicitly prohibited from excluding non-Indians from the jury even where a non-Indian is being tried. In 1977, the Suquamish Tribe amended its Law and Order Code to provide that only Suquamish tribal members shall serve as jurors in tribal court.

5

Belgarde’s petition for certiorari was granted while his appeal was still pending before the Court of Appeals for the Ninth Circuit. No further proceedings in that court have been held pending our decision.

6

Respondents do contend that Congress has “confirmed” the power of Indian tribes to try and to punish non-Indians through the Indian Reorganization Act of 1934, 48 Stat. 987, 25 U. S. C. § 476, and the Indian Civil Rights Act of 1968, 25 U. S. C. § 1302. Neither Act, however, addresses, let alone “confirms,” tribal criminal jurisdiction over non-Indians. The Indian Reorganization Act merely gives each Indian tribe the right “to organize for its common welfare” and to “adopt an appropriate constitution and bylaws.” With certain specific additions not relevant here, the tribal council is to have such powers as are vested “by existing law.” The Indian Civil Rights Act merely extends to “any person” within the tribe’s jurisdiction certain enumerated guarantees of the Bill of Rights of the Federal Constitution.

As respondents note, an early version of the Indian Civil Rights Act extended its guarantees only to “American Indians,” rather than to “any person.” The purpose of the later modification was to extend the Act’s guarantees to “all persons who may be subject to the jurisdiction of tribal governments, whether Indians or non-Indians.” Summary Report on the Constitutional Rights of American Indians, Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 89th Cong., 2d Sess., 10 (1966). But this change was certainly not intended to give Indian tribes criminal jurisdiction over non-Indians. Nor can it be read to “confirm” respondents’ argument that Indian tribes have inherent criminal jurisdiction over non-Indians. Instead, the modification merely demonstrates *196Congress’ desire to extend the Act’s guarantees to non-Indians if and where they come under a tribe’s criminal or civil jurisdiction by either treaty provision or Act of Congress.

7

Of the 127 courts currently operating on Indian reservations, 71 (including the Suquamish Indian Provisional Court) are tribal courts, established and functioning pursuant to tribal legislative powers; 30 are “CFR Courts” operating under the Code of Federal Regulations, 25 CFR § 11.1 et seq. (1977); 16 are traditional courts of the New Mexico pueblos; and 10 are conservation courts. The CFR Courts are the offspring of the Courts of Indian Offenses, first provided for in the Indian Department Appropriations Act of 1888, 25 Stat. 217, 233. See W. Hagan, Indian Police and Judges (1966). By regulations issued in 1935, the jurisdiction of CFR Courts is restricted to offenses committed by Indians within the reservation. 25 CFR § 11.2 (a) (1977). The case before us is concerned only with the criminal jurisdiction of tribal courts.

8

The history of Indian treaties in the United States is consistent with the principle that Indian tribes may not assume criminal jurisdiction *198over non-Indians without the permission of Congress. The earliest treaties typically expressly provided that “any citizen of the United States, who shall do an injury to any Indian of the [tribal] nation, or to any other Indian or Indians residing in their towns, and under their protection, shall be punished according to the laws of the United States.” See, e. g., Treaty with the Shawnees, Art. 111, 7 Stat. 26 (1786). While, as elaborated further below, these provisions were not necessary to remove criminal jurisdiction over non-Indians from the Indian tribes, they would naturally have served an important function in the developing stage of United States-Indian -relations by clarifying jurisdictional limits of the Indian tribes. The same treaties generally provided that “[i]f any citizen of the United States . . . shall attempt to settle on any of the lands hereby allotted to the Indians to live and hunt on, such person shall forfeit the protection of the United States of America, and the Indians may punish him or not as they please.” See, e. g., Treaty with the Choctaws, Art. IV, 7 Stat. 22 (1786). Far from representing a recognition of any inherent Indian criminal jurisdiction over non-Indians settling on tribal lands, these provisions were instead intended as a means of discouraging non-Indian settlements on Indian territory, in contravention of treaty provisions to the contrary. See 5 Annals of Cong. 903-904 (1796). Later treaties dropped this provision and provided instead that non-Indian settlers would be removed by the United States upon complaint being lodged by the tribe, See, e. g., Treaty with the Sacs and Foxes, 7 Stat. 84 (1804).

As the relationship between Indian tribes and the United States developed through the passage of time, specific provisions for the punishment of non-Indians by the United States, rather than by the tribes, slowly disappeared from the treaties. Thus, for example, none of the treaties signed by Washington Indians in the 1850’s explicitly proscribed criminal prosecution and punishment of non-Indians by the Indian tribes. As discussed below, however, several of the treaty provisions can be read as recognizing that criminal jurisdiction over non-Indians would be in the United States rather than in the tribes. The disappearance of provisions explicitly providing for the punishment of non-Indians by the United States, rather than by the Indian tribes, coincides with and is at least partly explained by the extension of federal enclave law over non-Indians in the Trade and Intercourse Acts and the general recognition by Attorneys General and lower federal courts that Indians did not have jurisdiction *199to try non-Indians. See infra, at 198-201. When it was felt necessary to expressly spell out respective jurisdictions, later treaties still provided that criminal jurisdiction over non-Indians would be in the United States. See, e. g., Treaty with the Utah-Tabeguache Band, Art. 6, 13 Stat. 674 (1863).

Only one treaty signed by the United States has ever provided for any form of tribal criminal jurisdiction over non-Indians (other than in the illegal-settler context noted above). The first treaty signed by the United States with an Indian tribe, the 1778 Treaty with the Delawares, provided that neither party to the treaty could “proceed to the infliction of punishments on the citizens of the other, otherwise than by securing the offender or offenders by imprisonment, or any other competent means, till a fair and impartial trial can be had by judges or juries of both parties, as near as can be to the laws, customs and usages of the contracting parties and natural justice: The mode of such tryals to be hereafter fixed by the wise men of the United States in Congress assembled, with the assistance of . . . deputies of the Delaware nation . . . .” Treaty with the Delawares, Art. IV, 7 Stat. 14 (emphasis added). While providing for Delaware participation in the trial of non-Indians, this treaty section established that non-Indians could only be tried under the auspices of the United States and in a manner fixed by the Continental Congress.

9

According to Felix Cohen’s Handbook of Federal Indian Law 148 (U. S. Dept, of the Interior 1941) “attempts of tribes to exercise jurisdiction over non-Indians . . . have been generally condemned by the federal courts since the end of the treaty-making period, and the writ of habeas corpus has been used to discharge white defendants from tribal custody.”

10

Judge Parker sat as the judge of the United States District Court for the Western District of Arkansas from 1875 until 1896. By reason of the laws of Congress in effect at the time, that particular court not only handled the normal docket of federal cases arising in the Western District of Arkansas, but also had criminal jurisdiction over what was then called the “Indian Territory.” This area varied in size during Parker’s tenure; at one time it extended as far west as the 'eastern border of Colorado, and always included substantial parts of what would later become the State of Oklahoma. In the exercise of this jurisdiction over the Indian Territory, the Court in which, he sat was necessarily in constant contact with individual Indians, the tribes of which they were members, and the white men who dealt with them and often preyed upon them.

Judge Parker’s views of the law were not always upheld by this Court. See 2 J. Wigmore, Evidence §276, pp. 115-116, n. 3 (3d ed. 1940). A reading of Wigmore, however, indicates that he was as critical of the decisions of this Court there mentioned as this Court was of the evidentiary rulings of Judge Parker. Nothing in these long forgotten disputes detracts from the universal esteem in which the Indian tribes which were subject to the jurisdiction of his court held Judge Parker. One of his biographers, describing the judge’s funeral, states that after the grave was filled “[t]he principal chief of the Choctaws, Pleasant Porter, came forward and placed a wreath of wild flowers on the grave.” H. Croy, He Hanged Them High 222 (1952).

It may be that Judge Parker’s views as to the ultimate destiny of the Indian people are not in accord with current thinking on the subject, but we have observed in more than one of our cases that the views of the people on this issue as reflected in the judgments of Congress itself have changed from one era to the next. See Kake Village v. Egan, 369 U. S. 60, 71-74 (1962). There cannot be the slightest doubt that Judge Parker was, by his own lights and by the lights of the time in which he lived, a judge who was thoroughly acquainted with and sympathetic to the Indians and Indian tribes which were subject to the jurisdiction of his court, as well as familiar with the law which governed them. See generally Hell on the Border (1971, J. Gregory & R. Strickland, eds.)

11

The 1970 opinion of the Solicitor was withdrawn in 1974 but has not been replaced. No reason was given for the withdrawal.

12

See H. R. Rep. No. 474, 23d Cong., 1st Sess., 36 (1834).

13

The Western Territory bill, like the early Indian treaties, see n. 6, supra, did not extend the protection of the United States to non-Indians who settled without Government business in Indian territory. See Western Territory bill, § 6, in H. R. Rep. No. 474, supra, at 35; id., at 18. This exception, like that in the early treaties, was presumably meant to discourage settlement on land that was reserved exclusively for the use of the various Indian tribes. Today, many reservations, including the Port Madison Reservation, have extensive non-Indian populations. The percentage of non-Indian residents grew as a direct and intended result of congressional policies in the late 19th and early 20th centuries promoting the assimilation of the Indians into the non-Indian culture. Respondents point to no statute, in comparison to the Western Territory bill, where Congress has intended to give Indian tribes jurisdiction today over non-Indians residing within reservations.

Even as drafted, many Congressmen felt that the bill was too radical a shift in United States-Indian relations and the bill was tabled. See 10 Cong. Deb. 4779 (1834). While the Western Territory bill was resubmitted several times in revised form, it was never passed. See generally R. Gittinger, The Formation of the State of Oklahoma (1939).

14

The Major Crimes Act provides that Indians committing any of the enumerated offenses “shall be subject to the same laws and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.” (Emphasis added.) While the question has never been directly addressed by this Court, Courts of Appeals have read this language to exclude tribal jurisdiction over the Indian offender. See, e. g., Sam v. United States, 385 F. 2d 213, 214 (CA10 1967); Felicia v. United States, 495 F. 2d 353, 354 (CA8 1974). We have no reason to decide today whether jurisdiction under the Major Crimes Act is exclusive.

The legislative history of the original version of the Major Crimes Act, which was introduced as a House amendment to the Indian Appropriation *204Act of 1855, creates some confusion on the question of exclusive jurisdiction. As originally worded, the amendment would have provided for trial in the United States courts “and not otherwise.” Apparently at the suggestion of Congressman Budd, who believed that concurrent jurisdiction in the courts of the United States was sufficient, the words “and not otherwise” were deleted when the amendment was later reintroduced. See 16 Cong. Rec. 934-935 (1885). However, as finally accepted by the Senate and passed by both Houses, the amendment did provide that the Indian offender would be punished as any other offender, “within the exclusive jurisdiction of the United States.” The issue of exclusive jurisdiction over major crimes was mooted for all practical purposes by the passage of the Indian Civil Rights Act of 1968 which limits the punishment that can be imposed by Indian tribal courts to a term of 6 months or a fine of $500.

15

In 1977, a congressional Policy Review Commission, citing the lower court decisions in Oliphani and Belgarde, concluded that “[t]here is an established legal basis for tribes to exercise jurisdiction over non-Indians.” 1 Final Report of the American Indian Policy Review Commission 114, 117, 152-154 (1977). However, the Commission’s report does not deny that for almost 200 years before the lower courts decided Oliphant and Belgarde, the three branches of the Federal Government were in apparent agreement that Indian tribes do not have jurisdiction over non-Indians. As the Vice Chairman of the Commission, Congressman Lloyd Meeds, noted in dissent, “such jurisdiction has generally not been asserted and ... the lack of legislation on this point reflects a congressional assumption that there was no such tribal jurisdiction.” Final Report, supra, at 587.

16

When treaties with the Washington Tribes were first contemplated, the Commissioner of Indian Affairs sent instructions to the Commission to Hold Treaties with the Indian Tribes in Washington Territory and in the Blackfoot Country. Included with the instructions were copies of treaties *207previously negotiated with the Omaha Indians, 10 Stat. 1043 (1854), and with the Ottoe and Missouria Indians, 10 Stat. 1038 (1854), which the Commissioner “regarded as exhibiting provisions proper on the part of the Government and advantages to the Indians” and which he felt would “afford valuable suggestions.” The criminal provisions of the Treaty of Point Elliott are clearly patterned after the criminal provisions in these “exemplary” treaties, in most respects copying the provisions verbatim. Like the Treaty of Point Elliott, the treaties with the Omahas and with the Ottoes and Missourias did not specifically address the issue of tribal criminal jurisdiction over non-Indians.

Sometime after the receipt of these instructions, the Washington treaty Commission itself prepared and discussed a draft treaty which specifically provided that “[i]njuries committed by whites towards them [are] not to be revenged, but on complaint being made they shall be tried by the Laws of the United States and if convicted the offenders punished.” For some unexplained reason, however, in negotiating a treaty with the Indians, the Commission went back to the language used in the two “exemplary” treaties sent by the Commissioner of Indian Affairs. Although respondents contend that the Commission returned to the original language because of tribal opposition to relinquishment of criminal jurisdiction over non-Indians, there is no evidence to support this view of the matter. Instead, it seems probable that the Commission preferred to use the language that had been recommended by the Office of Indian Affairs. As discussed below, the language ultimately used, wherein the Tribe acknowledged its dependence on the United States and promised to be “friendly with all citizens thereof,” could well have been understood as acknowledging exclusive federal criminal jurisdiction over non-Indians.

17

In interpreting Indian treaties and statutes, “'[d]oubtful expressions are to be resolved in favor of the weak and defenseless people who are the wards of the nation, dependent upon its protection and good faith.’ ” McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164, 174 (1973), see Kansas Indians, 5 Wall. 737, 760 (1866); United States v. Nice, 241 U. S. 591, 599 (1916). But treaty and statutory provisions which are not clear on their face may "be clear from the surrounding circumstances and legislative history.” Cf. DeCoteau v. District County Court, 420 U. S. 425, 444 (1975).

18

See 4 National American Indian Court Judges Assn., Justice and the American Indian 51-52 (1974); Hearings on S. 1 and S. 1400 (reform of the Federal Criminal Laws) before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary, 93d Cong., 1st Sess., 6469 et seq. (1973).

Mr. Justice Marshall,

with whom The Chief Justice joins, dissenting.

I agree with the court below that the "power to preserve order on the reservation ... is a sine qua non of the sovereignty that the Suquamish originally possessed.” Oliphant v. Schlie, 544 F. 2d 1007, 1009 (CA9 1976). In the absence of affirmative withdrawal by treaty or statute, I am of the view that Indian tribes enjoy as a necessary aspect of their retained sovereignty the right to try and punish all persons who commit offenses against tribal law within the reservation. Accordingly, I dissent.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

[441] Andrew J. Pincus argued the cause for petitioners. With him on the briefs were Solicitor General Fried, Acting Assistant Attorney General Marzulla, Deputy Solicitor General Ayer, Robert L. Klarquist, and Jacques B. Gelin.

Marilyn B. Miles argued the cause for respondents. With her on the brief for the Indian respondents was Stephen V. Quesenberry. John K. Van de Kamp, Attorney General, R. H. Connett, Assistant Attorney General, and Edna Walz, Deputy Attorney General filed a brief for respondent State of California.^[*]

JUSTICE O'CONNOR delivered the opinion of the Court.

This case requires us to consider whether the First Amendment's Free Exercise Clause prohibits the Government from permitting timber harvesting in, or constructing a road through, a portion of a National Forest that has traditionally [442] been used for religious purposes by members of three American Indian tribes in northwestern California. We conclude that it does not.

I

As part of a project to create a paved 75-mile road linking two California towns, Gasquet and Orleans, the United States Forest Service has upgraded 49 miles of previously unpaved roads on federal land. In order to complete this project (the G-O road), the Forest Service must build a 6-mile paved segment through the Chimney Rock section of the Six Rivers National Forest. That section of the forest is situated between two other portions of the road that are already complete.

In 1977, the Forest Service issued a draft environmental impact statement that discussed proposals for upgrading an existing unpaved road that runs through the Chimney Rock area. In response to comments on the draft statement, the Forest Service commissioned a study of American Indian cultural and religious sites in the area. The Hoopa Valley Indian Reservation adjoins the Six Rivers National Forest, and the Chimney Rock area has historically been used for religious purposes by Yurok, Karok, and Tolowa Indians. The commissioned study, which was completed in 1979, found that the entire area "is significant as an integral and indispensible part of Indian religious conceptualization and practice." App. 181. Specific sites are used for certain rituals, and "successful use of the [area] is dependent upon and facilitated by certain qualities of the physical environment, the most important of which are privacy, silence, and an undisturbed natural setting." Ibid. (footnote omitted). The study concluded that constructing a road along any of the available routes "would cause serious and irreparable damage to the sacred areas which are an integral and necessary part of the belief systems and lifeway of Northwest California Indian peoples." Id., at 182. Accordingly, the report recommended that the G-O road not be completed.

[443] In 1982, the Forest Service decided not to adopt this recommendation, and it prepared a final environmental impact statement for construction of the road. The Regional Forester selected a route that avoided archeological sites and was removed as far as possible from the sites used by contemporary Indians for specific spiritual activities. Alternative routes that would have avoided the Chimney Rock area altogether were rejected because they would have required the acquisition of private land, had serious soil stability problems, and would in any event have traversed areas having ritualistic value to American Indians. See id., at 217-218. At about the same time, the Forest Service adopted a management plan allowing for the harvesting of significant amounts of timber in this area of the forest. The management plan provided for one-half mile protective zones around all the religious sites identified in the report that had been commissioned in connection with the G-O road.

After exhausting their administrative remedies, respondents — an Indian organization, individual Indians, nature organizations and individual members of those organizations, and the State of California — challenged both the road-building and timber-harvesting decisions in the United States District Court for the Northern District of California. Respondents claimed that the Forest Service's decisions violated the Free Exercise Clause, the Federal Water Pollution Control Act (FWPCA), 86 Stat. 896, as amended, 33 U. S. C. § 1251 et seq., the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U. S. C. § 4321 et seq., several other federal statutes, and governmental trust responsibilities to Indians living on the Hoopa Valley Reservation.

After a trial, the District Court issued a permanent injunction prohibiting the Government from constructing the Chimney Rock section of the G-O road or putting the timber-harvesting management plan into effect. See Northwest Indian Cemetery Protective Assn. v. Peterson, 565 F. Supp. 586 (1983). The court found that both actions would violate [444] the Free Exercise Clause because they "would seriously damage the salient visual, aural, and environmental qualities of the high country." Id., at 594-595. The court also found that both proposed actions would violate the FWPCA, and that the environmental impact statements for construction of the road were deficient under the NEPA. Finally, the court concluded that both projects would breach the Government's trust responsibilities to protect water and fishing rights reserved to the Hoopa Valley Indians.

While an appeal was pending before the United States Court of Appeals for the Ninth Circuit, Congress enacted the California Wilderness Act of 1984, Pub. L. 98-425, 98 Stat. 1619. Under that statute, much of the property covered by the Forest Service's management plan is now designated a wilderness area, which means that commercial activities such as timber harvesting are forbidden. The statute exempts a narrow strip of land, coinciding with the Forest Service's proposed route for the remaining segment of the G-O road, from the wilderness designation. The legislative history indicates that this exemption was adopted "to enable the completion of the Gasquet-Orleans Road project if the responsible authorities so decide." S. Rep. No. 98-582, p. 29 (1984). The existing unpaved section of road, however, lies within the wilderness area and is therefore now closed to general traffic.

A panel of the Ninth Circuit affirmed in part. Northwest Indian Cemetery Protective Assn. v. Peterson, 795 F. 2d 688 (1986). The panel unanimously rejected the District Court's conclusion that the Government's proposed actions would breach its trust responsibilities to Indians on the Hoopa Valley Reservation. The panel also vacated the injunction to the extent that it had been rendered moot by the California Wilderness Act, which now prevents timber harvesting in certain areas covered by the District Court's order. The District Court's decision, to the extent that it rested on statutory grounds, was otherwise unanimously affirmed.

[445] By a divided decision, the District Court's constitutional ruling was also affirmed. Relying primarily on the Forest Service's own commissioned study, the majority found that construction of the Chimney Rock section of the G-O road would have significant, though largely indirect, adverse effects on Indian religious practices. The majority concluded that the Government had failed to demonstrate a compelling interest in the completion of the road, and that it could have abandoned the road without thereby creating "a religious preserve for a single group in violation of the establishment clause." Id., at 694. The majority apparently applied the same analysis to logging operations that might be carried out in portions of the Chimney Rock area not covered by the California Wilderness Act. See id., at 692-693 ("Because most of the high country has now been designated by Congress as a wilderness area, the issue of logging becomes less significant, although it does not disappear").

The dissenting judge argued that certain of the adverse effects on the Indian respondents' religious practices could be eliminated by less drastic measures than a ban on building the road, and that other actual or suggested adverse effects did not pose a serious threat to the Indians' religious practices. He also concluded that the injunction against timber harvesting needed to be reconsidered in light of the California Wilderness Act: "It is not clear whether the district court would have issued an injunction based upon the development of the remaining small parcels. Accordingly, I would remand to allow the district court to reevaluate its injunction in light of the Act." Id., at 704.

II

We begin by noting that the courts below did not articulate the bases of their decisions with perfect clarity. A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them. See Three [446] Affiliated Tribes of Ft. Berthold Reservation v. Wold Engineering, P. C., 467 U. S. 138, 157-158 (1984); see also, e. g., Jean v. Nelson, 472 U. S. 846, 854 (1985); Gulf Oil Co. v. Bernard, 452 U. S. 89, 99 (1981); Ashwander v. TVA, 297 U. S. 288, 346-348 (1936) (Brandeis, J., concurring). This principle required the courts below to determine, before addressing the constitutional issue, whether a decision on that question could have entitled respondents to relief beyond that to which they were entitled on their statutory claims. If no additional relief would have been warranted, a constitutional decision would have been unnecessary and therefore inappropriate.

Neither the District Court nor the Court of Appeals explained or expressly articulated the necessity for their constitutional holdings. Were we persuaded that those holdings were unnecessary, we could simply vacate the relevant portions of the judgment below without discussing the merits of the constitutional issue. The structure and wording of the District Court's injunctive order, however, suggest that the statutory holdings would not have supported all the relief granted. The order is divided into four sections. Two of those sections deal with a 31,100-acre tract referred to as the Blue Creek Roadless Area. The injunction prohibits the Forest Service from engaging in timber harvesting or road building anywhere on the tract "unless and until" compliance with the NEPA and the FWPCA have been demonstrated. 565 F. Supp., at 606-607. The sections of the injunction dealing with the smaller Chimney Rock area (i. e., the area affected by the First Amendment challenge) are worded differently. The Forest Service is permanently enjoined, without any qualifying language, from constructing the proposed portion of the G-O road "and/or any alternative route" through that area; similarly, the injunction forbids timber harvesting or the construction of logging roads in the Chimney Rock area pursuant to the Forest Service's proposed management plan "or any other land management plan." [447] Id., at 606 (emphasis added). These differences in wording suggest, without absolutely implying, that an injunction covering the Chimney Rock area would in some way have been conditional, or narrower in scope, if the District Court had not decided the First Amendment issue as it did. Similarly, the silence of the Court of Appeals as to the necessity of reaching the First Amendment issue may have reflected its understanding that the District Court's injunction necessarily rested in part on constitutional grounds.

Because it appears reasonably likely that the First Amendment issue was necessary to the decisions below, we believe that it would be inadvisable to vacate and remand without addressing that issue on the merits. This conclusion is strengthened by considerations of judicial economy. The Government, which petitioned for certiorari on the constitutional issue alone, has informed us that it believes it can cure the statutory defects identified below, intends to do so, and will not challenge the adverse statutory rulings. Tr. of Oral Arg. 9-10. In this circumstance, it is difficult to see what principle would be vindicated by sending this case on what would almost certainly be a brief round trip to the courts below.

III

A

The Free Exercise Clause of the First Amendment provides that "Congress shall make no law . . . prohibiting the free exercise [of religion]." It is undisputed that the Indian respondents' beliefs are sincere and that the Government's proposed actions will have severe adverse effects on the practice of their religion. Those respondents contend that the burden on their religious practices is heavy enough to violate the Free Exercise Clause unless the Government can demonstrate a compelling need to complete the G-O road or to engage in timber harvesting in the Chimney Rock area. We disagree.

[448] In Bowen v. Roy, 476 U. S. 693 (1986), we considered a challenge to a federal statute that required the States to use Social Security numbers in administering certain welfare programs. Two applicants for benefits under these programs contended that their religious beliefs prevented them from acceding to the use of a Social Security number for their 2-year-old daughter because the use of a numerical identifier would " `rob the spirit' of [their] daughter and prevent her from attaining greater spiritual power." Id., at 696. Similarly, in this case, it is said that disruption of the natural environment caused by the G-O road will diminish the sacredness of the area in question and create distractions that will interfere with "training and ongoing religious experience of individuals using [sites within] the area for personal medicine and growth . . . and as integrated parts of a system of religious belief and practice which correlates ascending degrees of personal power with a geographic hierarchy of power." App. 181. Cf. id., at 178 ("Scarred hills and mountains, and disturbed rocks destroy the purity of the sacred areas, and [Indian] consultants repeatedly stressed the need of a training doctor to be undistracted by such disturbance"). The Court rejected this kind of challenge in Roy:

"The Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens. Just as the Government may not insist that [the Roys] engage in any set form of religious observance, so [they] may not demand that the Government join in their chosen religious practices by refraining from using a number to identify their daughter. . . .

". . . The Free Exercise Clause affords an individual protection from certain forms of governmental compulsion; it does not afford an individual a right to dictate the conduct of the Government's internal procedures." 476 U. S., at 699-700.

[449] The building of a road or the harvesting of timber on publicly owned land cannot meaningfully be distinguished from the use of a Social Security number in Roy. In both cases, the challenged Government action would interfere significantly with private persons' ability to pursue spiritual fulfillment according to their own religious beliefs. In neither case, however, would the affected individuals be coerced by the Government's action into violating their religious beliefs; nor would either governmental action penalize religious activity by denying any person an equal share of the rights, benefits, and privileges enjoyed by other citizens.

We are asked to distinguish this case from Roy on the ground that the infringement on religious liberty here is "significantly greater," or on the ground that the Government practice in Roy was "purely mechanical" whereas this case involves "a case-by-case substantive determination as to how a particular unit of land will be managed." Brief for Indian Respondents 33-34. Similarly, we are told that this case can be distinguished from Roy because "the government action is not at some physically removed location where it places no restriction on what a practitioner may do." Brief for Respondent State of California 18. The State suggests that the Social Security number in Roy "could be characterized as interfering with Roy's religious tenets from a subjective point of view, where the government's conduct of `its own internal affairs' was known to him only secondhand and did not interfere with his ability to practice his religion." Id., at 19 (footnote omitted; internal citation omitted). In this case, however, it is said that the proposed road will "physically destro[y] the environmental conditions and the privacy without which the [religious] practices cannot be conducted." Ibid.

These efforts to distinguish Roy are unavailing. This Court cannot determine the truth of the underlying beliefs that led to the religious objections here or in Roy, see Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U. S. 136, 144, n. 9 (1987), and accordingly cannot weigh the adverse effects [450] on the appellees in Roy and compare them with the adverse effects on the Indian respondents. Without the ability to make such comparisons, we cannot say that the one form of incidental interference with an individual's spiritual activities should be subjected to a different constitutional analysis than the other.

Respondents insist, nonetheless, that the courts below properly relied on a factual inquiry into the degree to which the Indians' spiritual practices would become ineffectual if the G-O road were built. They rely on several cases in which this Court has sustained free exercise challenges to government programs that interfered with individuals' ability to practice their religion. See Wisconsin v. Yoder, 406 U. S. 205 (1972) (compulsory school-attendance law); Sherbert v. Verner, 374 U. S. 398 (1963) (denial of unemployment benefits to applicant who refused to accept work requiring her to violate the Sabbath); Thomas v. Review Board, Indiana Employment Security Div., 450 U. S. 707 (1981) (denial of unemployment benefits to applicant whose religion forbade him to fabricate weapons); Hobbie, supra (denial of unemployment benefits to religious convert who resigned position that required her to work on the Sabbath).

Even apart from the inconsistency between Roy and respondents' reading of these cases, their interpretation will not withstand analysis. It is true that this Court has repeatedly held that indirect coercion or penalties on the free exercise of religion, not just outright prohibitions, are subject to scrutiny under the First Amendment. Thus, for example, ineligibility for unemployment benefits, based solely on a refusal to violate the Sabbath, has been analogized to a fine imposed on Sabbath worship. Sherbert, supra, at 404. This does not and cannot imply that incidental effects of government programs, which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs, require government to bring forward a compelling justification [451] for its otherwise lawful actions. The crucial word in the constitutional text is "prohibit": "For the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government." Sherbert, supra, at 412 (Douglas, J., concurring).

Whatever may be the exact line between unconstitutional prohibitions on the free exercise of religion and the legitimate conduct by government of its own affairs, the location of the line cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development. The Government does not dispute, and we have no reason to doubt, that the logging and road-building projects at issue in this case could have devastating effects on traditional Indian religious practices. Those practices are intimately and inextricably bound up with the unique features of the Chimney Rock area, which is known to the Indians as the "high country." Individual practitioners use this area for personal spiritual development; some of their activities are believed to be critically important in advancing the welfare of the Tribe, and indeed, of mankind itself. The Indians use this area, as they have used it for a very long time, to conduct a wide variety of specific rituals that aim to accomplish their religious goals. According to their beliefs, the rituals would not be efficacious if conducted at other sites than the ones traditionally used, and too much disturbance of the area's natural state would clearly render any meaningful continuation of traditional practices impossible. To be sure, the Indians themselves were far from unanimous in opposing the G-O road, see App. 180, and it seems less than certain that construction of the road will be so disruptive that it will doom their religion. Nevertheless, we can assume that the threat to the efficacy of at least some religious practices is extremely grave.

Even if we assume that we should accept the Ninth Circuit's prediction, according to which the G-O road will "virtually destroy the . . . Indians' ability to practice their religion," [452] 795 F. 2d, at 693 (opinion below), the Constitution simply does not provide a principle that could justify upholding respondents' legal claims. However much we might wish that it were otherwise, government simply could not operate if it were required to satisfy every citizen's religious needs and desires. A broad range of government activities — from social welfare programs to foreign aid to conservation projects — will always be considered essential to the spiritual well-being of some citizens, often on the basis of sincerely held religious beliefs. Others will find the very same activities deeply offensive, and perhaps incompatible with their own search for spiritual fulfillment and with the tenets of their religion. The First Amendment must apply to all citizens alike, and it can give to none of them a veto over public programs that do not prohibit the free exercise of religion. The Constitution does not, and courts cannot, offer to reconcile the various competing demands on government, many of them rooted in sincere religious belief, that inevitably arise in so diverse a society as ours. That task, to the extent that it is feasible, is for the legislatures and other institutions. Cf. The Federalist No. 10 (suggesting that the effects of religious factionalism are best restrained through competition among a multiplicity of religious sects).

One need not look far beyond the present case to see why the analysis in Roy, but not respondents' proposed extension of Sherbert and its progeny, offers a sound reading of the Constitution. Respondents attempt to stress the limits of the religious servitude that they are now seeking to impose on the Chimney Rock area of the Six Rivers National Forest. While defending an injunction against logging operations and the construction of a road, they apparently do not at present object to the area's being used by recreational visitors, other Indians, or forest rangers. Nothing in the principle for which they contend, however, would distinguish this case from another lawsuit in which they (or similarly situated religious objectors) might seek to exclude all human activity but [453] their own from sacred areas of the public lands. The Indian respondents insist that "[p]rivacy during the power quests is required for the practitioners to maintain the purity needed for a successful journey." Brief for Indian Respondents 8 (emphasis added; citation to record omitted). Similarly: "The practices conducted in the high country entail intense meditation and require the practitioner to achieve a profound awareness of the natural environment. Prayer seats are oriented so there is an unobstructed view, and the practitioner must be surrounded by undisturbed naturalness." Id., at 8, n. 4 (emphasis added; citations to record omitted). No disrespect for these practices is implied when one notes that such beliefs could easily require de facto beneficial ownership of some rather spacious tracts of public property. Even without anticipating future cases, the diminution of the Government's property rights, and the concomitant subsidy of the Indian religion, would in this case be far from trivial: the District Court's order permanently forbade commercial timber harvesting, or the construction of a two-lane road, anywhere within an area covering a full 27 sections (i. e. more than 17,000 acres) of public land.

The Constitution does not permit government to discriminate against religions that treat particular physical sites as sacred, and a law prohibiting the Indian respondents from visiting the Chimney Rock area would raise a different set of constitutional questions. Whatever rights the Indians may have to the use of the area, however, those rights do not divest the Government of its right to use what is, after all, its land. Cf. Bowen v. Roy, 476 U. S., at 724-727 (O'CONNOR, J., concurring in part and dissenting in part) (distinguishing between the Government's use of information in its possession and the Government's requiring an individual to provide such information).

B

Nothing in our opinion should be read to encourage governmental insensitivity to the religious needs of any citizen. [454] The Government's rights to the use of its own land, for example, need not and should not discourage it from accommodating religious practices like those engaged in by the Indian respondents. Cf. Sherbert, 374 U. S., at 422-423 (Harlan, J., dissenting). It is worth emphasizing, therefore, that the Government has taken numerous steps in this very case to minimize the impact that construction of the G-O road will have on the Indians' religious activities. First, the Forest Service commissioned a comprehensive study of the effects that the project would have on the cultural and religious value of the Chimney Rock area. The resulting 423-page report was so sympathetic to the Indians' interests that it has constituted the principal piece of evidence relied on by respondents throughout this litigation.

Although the Forest Service did not in the end adopt the report's recommendation that the project be abandoned, many other ameliorative measures were planned. No sites where specific rituals take place were to be disturbed. In fact, a major factor in choosing among alternative routes for the road was the relation of the various routes to religious sites: the route selected by the Regional Forester is, he noted, "the farthest removed from contemporary spiritual sites; thus, the adverse audible intrusions associated with the road would be less than all other alternatives." App. 102. Nor were the Forest Service's concerns limited to "audible intrusions." As the dissenting judge below observed, 10 specific steps were planned to reduce the visual impact of the road on the surrounding country. See 795 F. 2d, at 703 (Beezer, J., dissenting in part).

Except for abandoning its project entirely, and thereby leaving the two existing segments of road to dead-end in the middle of a National Forest, it is difficult to see how the Government could have been more solicitous. Such solicitude accords with "the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions [455] of the American Indian . . . including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites." American Indian Religious Freedom Act (AIRFA), Pub. L. 95-341, 92 Stat. 469, 42 U. S. C. § 1996.

Respondents, however, suggest that AIRFA goes further and in effect enacts their interpretation of the First Amendment into statutory law. Although this contention was rejected by the District Court, they seek to defend the judgment below by arguing that AIRFA authorizes the injunction against completion of the G-O road. This argument is without merit. After reciting several legislative findings, AIRFA "resolves" upon the policy quoted above. A second section of the statute, 92 Stat. 470, required an evaluation of federal policies and procedures, in consultation with native religious leaders, of changes necessary to protect and preserve the rights and practices in question. The required report dealing with this evaluation was completed and released in 1979. Reply Brief for Petitioners 2, n. 3. Nowhere in the law is there so much as a hint of any intent to create a cause of action or any judicially enforceable individual rights.

What is obvious from the face of the statute is confirmed by numerous indications in the legislative history. The sponsor of the bill that became AIRFA, Representative Udall, called it "a sense of Congress joint resolution," aimed at ensuring that "the basic right of the Indian people to exercise their traditional religious practices is not infringed without a clear decision on the part of the Congress or the administrators that such religious practices must yield to some higher consideration." 124 Cong. Rec. 21444 (1978). Representative Udall emphasized that the bill would not "confer special religious rights on Indians," would "not change any existing State or Federal law," and in fact "has no teeth in it." Id., at 21444-21445.

[456] C

The dissent proposes an approach to the First Amendment that is fundamentally inconsistent with the principles on which our decision rests. Notwithstanding the sympathy that we all must feel for the plight of the Indian respondents, it is plain that the approach taken by the dissent cannot withstand analysis. On the contrary, the path towards which it points us is incompatible with the text of the Constitution, with the precedents of this Court, and with a responsible sense of our own institutional role.

The dissent begins by asserting that the "constitutional guarantee we interpret today . . . is directed against any form of government action that frustrates or inhibits religious practice." Post, at 459 (emphasis added). The Constitution, however, says no such thing. Rather, it states: "Congress shall make no law . . . prohibiting the free exercise [of religion]." U. S. Const., Amdt. 1 (emphasis added).

As we explained above, Bowen v. Roy rejected a First Amendment challenge to Government activities that the religious objectors sincerely believed would " ` "rob the spirit" of [their] daughter and prevent her from attaining greater spiritual power.' " See supra, at 448 (quoting Roy, 476 U. S., at 696). The dissent now offers to distinguish that case by saying that the Government was acting there "in a purely internal manner," whereas land-use decisions "are likely to have substantial external effects." Post, at 470. Whatever the source or meaning of the dissent's distinction, it has no basis in Roy. Robbing the spirit of a child, and preventing her from attaining greater spiritual power, is both a "substantial external effect" and one that is remarkably similar to the injury claimed by respondents in the case before us today. The dissent's reading of Roy would effectively overrule that decision, without providing any compelling justification for doing so.

The dissent also misreads Wisconsin v. Yoder, 406 U. S. 205 (1972). The statute at issue in that case prohibited the [457] Amish parents, on pain of criminal prosecution, from providing their children with the kind of education required by the Amish religion. Id., at 207-209, 223. The statute directly compelled the Amish to send their children to public high schools "contrary to the Amish religion and way of life." Id., at 209. The Court acknowledged that the statute might be constitutional, despite its coercive nature, if the State could show with sufficient "particularity how its admittedly strong interest in compulsory education would be adversely affected by granting an exemption to the Amish." Id., at 236 (citation omitted). The dissent's out-of-context quotations notwithstanding, there is nothing whatsoever in the Yoder opinion to support the proposition that the "impact" on the Amish religion would have been constitutionally problematic if the statute at issue had not been coercive in nature. Cf. post, at 466.

Perceiving a "stress point in the longstanding conflict between two disparate cultures," the dissent attacks us for declining to "balanc[e] these competing and potentially irreconcilable interests, choosing instead to turn this difficult task over to the Federal Legislature." Post, at 473. Seeing the Court as the arbiter, the dissent proposes a legal test under which it would decide which public lands are "central" or "indispensable" to which religions, and by implication which are "dispensable" or "peripheral," and would then decide which government programs are "compelling" enough to justify "infringement of those practices." Post, at 475. We would accordingly be required to weigh the value of every religious belief and practice that is said to be threatened by any government program. Unless a "showing of `centrality,' " post, at 474, is nothing but an assertion of centrality, see post, at 475, the dissent thus offers us the prospect of this Court's holding that some sincerely held religious beliefs and practices are not "central" to certain religions, despite protestations to the contrary from the religious objectors who brought the lawsuit. In other words, the dissent's approach would [458] require us to rule that some religious adherents misunderstand their own religious beliefs. We think such an approach cannot be squared with the Constitution or with our precedents, and that it would cast the Judiciary in a role that we were never intended to play.

IV

The decision of the court below, according to which the First Amendment precludes the Government from completing the G-O road or from permitting timber harvesting in the Chimney Rock area, is reversed. In order that the District Court's injunction may be reconsidered in light of this holding, and in the light of any other relevant events that may have intervened since the injunction issued, the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

JUSTICE KENNEDY took no part in the consideration or decision of this case.

JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE BLACKMUN join, dissenting.

" `[T]he Free Exercise Clause,' " the Court explains today, " `is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government.' " Ante, at 451 (quoting Sherbert v. Verner, 374 U. S. 398, 412 (1963) (Douglas, J., concurring)). Pledging fidelity to this unremarkable constitutional principle, the Court nevertheless concludes that even where the Government uses federal land in a manner that threatens the very existence of a Native American religion, the Government is simply not "doing" anything to the practitioners of that faith. Instead, the Court believes that Native Americans who request that the Government refrain from destroying their religion effectively seek to exact from the Government de facto beneficial ownership of federal property. These two astonishing conclusions follow naturally from the Court's determination [459] that federal land-use decisions that render the practice of a given religion impossible do not burden that religion in a manner cognizable under the Free Exercise Clause, because such decisions neither coerce conduct inconsistent with religious belief nor penalize religious activity. The constitutional guarantee we interpret today, however, draws no such fine distinctions between types of restraints on religious exercise, but rather is directed against any form of governmental action that frustrates or inhibits religious practice. Because the Court today refuses even to acknowledge the constitutional injury respondents will suffer, and because this refusal essentially leaves Native Americans with absolutely no constitutional protection against perhaps the gravest threat to their religious practices, I dissent.

I

For at least 200 years and probably much longer, the Yurok, Karok, and Tolowa Indians have held sacred an approximately 25-square-mile area of land situated in what is today the Blue Creek Unit of Six Rivers National Forest in northwestern California. As the Government readily concedes, regular visits to this area, known to respondent Indians as the "high country," have played and continue to play a "critical" role in the religious practices and rituals of these Tribes. Brief for Petitioners 3. Those beliefs, only briefly described in the Court's opinion, are crucial to a proper understanding of respondents' claims.

As the Forest Service's commissioned study, the Theodoratus Report, explains, for Native Americans religion is not a discrete sphere of activity separate from all others, and any attempt to isolate the religious aspects of Indian life "is in reality an exercise which forces Indian concepts into non-Indian categories." App. 110; D. Theodoratus, Cultural Resources of the Chimney Rock Section, Gasquet-Orleans Road, Six Rivers National Forest (1979). Thus, for most Native Americans, "[t]he area of worship cannot be delineated from [460] social, political, cultur[al], and other areas o[f] Indian lifestyle." American Indian Religious Freedom, Hearings on S. J. Res. 102 before the Senate Select Committee on Indian Affairs, 95th Cong., 2d Sess., 86 (1978) (statement of Barney Old Coyote, Crow Tribe). A pervasive feature of this lifestyle is the individual's relationship with the natural world; this relationship, which can accurately though somewhat incompletely be characterized as one of stewardship, forms the core of what might be called, for want of a better nomenclature, the Indian religious experience. While traditional Western religions view creation as the work of a deity "who institutes natural laws which then govern the operation of physical nature," tribal religions regard creation as an ongoing process in which they are morally and religiously obligated to participate. U. S. Federal Agencies Task Force, American Indian Religious Freedom Act Report 11 (1979) (Task Force Report). Native Americans fulfill this duty through ceremonies and rituals designed to preserve and stabilize the earth and to protect humankind from disease and other catastrophes. Failure to conduct these ceremonies in the manner and place specified, adherents believe, will result in great harm to the earth and to the people whose welfare depends upon it. Id., at 10.

In marked contrast to traditional Western religions, the belief systems of Native Americans do not rely on doctrines, creeds, or dogmas. Established or universal truths — the mainstay of Western religions — play no part in Indian faith. Ceremonies are communal efforts undertaken for specific purposes in accordance with instructions handed down from generation to generation. Commentaries on or interpretations of the rituals themselves are deemed absolute violations of the ceremonies, whose value lies not in their ability to explain the natural world or to enlighten individual believers but in their efficacy as protectors and enhancers of tribal existence. Ibid. Where dogma lies at the heart of Western religions, Native American faith is inextricably [461] bound to the use of land. The site-specific nature of Indian religious practice derives from the Native American perception that land is itself a sacred, living being. See Suagee, American Indian Religious Freedom and Cultural Resources Management: Protecting Mother Earth's Caretakers, 10 Am. Ind. L. Rev. 1, 10 (1982). Rituals are performed in prescribed locations not merely as a matter of traditional orthodoxy, but because land, like all other living things, is unique, and specific sites possess different spiritual properties and significance. Within this belief system, therefore, land is not fungible; indeed, at the time of the Spanish colonization of the American Southwest, "all . . . Indians held in some form a belief in a sacred and indissoluble bond between themselves and the land in which their settlements were located." E. Spicer, Cycles of Conquest: The Impact of Spain, Mexico, and the United States on the Indians of the Southwest, 1533-1960, p. 576 (1962).

For respondent Indians, the most sacred of lands is the high country where, they believe, prehuman spirits moved with the coming of humans to the Earth. Because these spirits are seen as the source of religious power, or "medicine," many of the tribes' rituals and practices require frequent journeys to the area. Thus, for example, religious leaders preparing for the complex of ceremonies that underlie the Tribes' World Renewal efforts must travel to specific sites in the high country in order to attain the medicine necessary for successful renewal. Similarly, individual tribe members may seek curative powers for the healing of the sick, or personal medicine for particular purposes such as good luck in singing, hunting, or love. A period of preparation generally precedes such visits, and individuals must select trails in the sacred area according to the medicine they seek and their abilities, gradually moving to increasingly more powerful sites, which are typically located at higher altitudes. Among the most powerful of sites are Chimney Rock, Doctor Rock, and Peak 8, all of which are elevated rock outcroppings.

[462] According to the Theodoratus Report, the qualities "of silence, the aesthetic perspective, and the physical attributes, are an extension of the sacredness of [each] particular site." App. 148. The act of medicine making is akin to meditation: the individual must integrate physical, mental, and vocal actions in order to communicate with the prehuman spirits. As a result, "successful use of the high country is dependent upon and facilitated by certain qualities of the physical environment, the most important of which are privacy, silence, and an undisturbed natural setting." Id., at 181. Although few Tribe members actually make medicine at the most powerful sites, the entire Tribe's welfare hinges on the success of the individual practitioners.

Beginning in 1972, the Forest Service began preparing a multiple-use management plan for the Blue Creek Unit. The plan's principal features included the harvesting of 733 million board feet of Douglas fir over an 80-year period and the completion of a 6-mile segment of paved road running between two northern California towns, Gasquet and Orleans (the G-O road). The road's primary purpose was to provide a route for hauling the timber harvested under the management plan; in addition, it would enhance public access to the Six Rivers and other national forests, and allow for more efficient maintenance and fire control by the Forest Service itself. In the mid-1970's, the Forest Service circulated draft environmental impact statements evaluating the effects of several proposed routes for the final segment of the G-O road, including at least two that circumnavigated the high country altogether. Ultimately, however, the Service settled on a route running along the Chimney Rock Corridor, which traverses the Indians' sacred lands.

Respondent Indians brought suit to enjoin implementation of the plan, alleging that the road construction and timber harvesting would impermissibly interfere with their religious practices in violation of the Free Exercise Clause of the First [463] Amendment.^[1] Following a trial, the District Court granted the requested injunctive relief. The court found that "use of the high country is essential to [respondents'] `World Renewal' ceremonies . . . which constitute the heart of the Northwest Indian religious belief system," and that " `[i]ntrusions on the sanctity of the Blue Creek high country are . . . potentially destructive of the very core of Northwest [Indian] religious beliefs and practices.' " Northwest Indian Cemetery Protective Assn. v. Peterson, 565 F. Supp. 586, 594-595 (ND Cal. 1983) (quoting the Theodoratus Report, at 420). Concluding that these burdens on respondents' religious practices were sufficient to trigger the protections of the Free Exercise Clause, the court found that the interests served by the G-O road and the management plan were insufficient to justify those burdens. In particular, the court found that the road would not improve access to timber resources in the Blue Creek Unit and indeed was unnecessary to the harvesting of that timber; that it would not significantly improve the administration of the Six Rivers National Forest; and that it would increase recreational access only marginally, and at the expense of the very pristine environment that makes the area suitable for primitive recreational use in the first place. 565 F. Supp., at 595-596. The court further found that the unconnected segments of the road had independent utility,^[2] and that although completion of the [464] Chimney Rock segment would reduce timber-hauling costs, it would not generate new jobs but would instead merely shift work from one area of the region to another. Id., at 596. Finally, in enjoining the proposed harvesting activities, the court found that the Blue Creek Unit's timber resources were but a small fraction of those located in the entire National Forest and that the local timber industry would not suffer seriously if access to this fraction were foreclosed. Ibid.

While the case was pending on appeal before the Court of Appeals for the Ninth Circuit, Congress passed the California Wilderness Act of 1984, Pub. L. 98-425, 98 Stat. 1619, which designates most of the Blue Creek Unit a wilderness area, and thus precludes logging and all other commercial activities in most of the area covered by the Forest Service's management plan. Thereafter, the Court of Appeals affirmed the District Court's determination that the proposed harvesting and construction activities violated respondents' constitutional rights. Recognizing that the high country is "indispensable" to the religious lives of the approximately 5,000 Tribe members who reside in the area, Northwest Indian Cemetery Protective Assn. v. Peterson, 795 F. 2d 688, 692 (1986), the court concluded "that the proposed government operations would virtually destroy the . . . Indians' ability to practice their religion." Id., at 693 (emphasis added).^[3] Like the lower court, the Court of Appeals found [465] the Government's interests in building the road and permitting limited timber harvesting — interests which of course were considerably undermined by passage of the California Wilderness Act — did not justify the destruction of respondents' religion. Id., at 695.

II

The Court does not for a moment suggest that the interests served by the G-O road are in any way compelling, or that they outweigh the destructive effect construction of the road will have on respondents' religious practices. Instead, the Court embraces the Government's contention that its prerogative as landowner should always take precedence over a claim that a particular use of federal property infringes religious practices. Attempting to justify this rule, the Court argues that the First Amendment bars only outright prohibitions, indirect coercion, and penalties on the free exercise of religion. All other "incidental effects of government programs," it concludes, even those "which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs," simply do not give rise to constitutional concerns. See ante, at 450. Since our recognition nearly half a century ago that restraints on religious conduct implicate the concerns of the Free Exercise Clause, see Prince v. Massachusetts, 321 U. S. 158 (1944), we have never suggested that the protections of the guarantee are limited to so narrow a range of governmental burdens. The land-use decision challenged here will restrain respondents from practicing their religion as surely and as completely as any of the governmental actions we have struck down in the past, and the Court's efforts simply to define away respondents' injury [466] as nonconstitutional are both unjustified and ultimately unpersuasive.

A

The Court ostensibly finds support for its narrow formulation of religious burdens in our decisions in Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U. S. 136 (1987), Thomas v. Review Bd., Indiana Employment Security Division, 450 U. S. 707 (1981), and Sherbert v. Verner, 374 U. S. 398 (1963). In those cases, the laws at issue forced individuals to choose between adhering to specific religious tenets and forfeiting unemployment benefits on the one hand, and accepting work repugnant to their religious beliefs on the other. The religions involved, therefore, lent themselves to the coercion analysis the Court espouses today, for they proscribed certain conduct such as munitions work (Thomas) or working on Saturdays (Sherbert, Hobbie) that the unemployment benefits laws effectively compelled. In sustaining the challenges to these laws, however, we nowhere suggested that such coercive compulsion exhausted the range of religious burdens recognized under the Free Exercise Clause.

Indeed, in Wisconsin v. Yoder, 406 U. S. 205 (1972), we struck down a state compulsory school attendance law on free exercise grounds not so much because of the affirmative coercion the law exerted on individual religious practitioners, but because of "the impact that compulsory high school attendance could have on the continued survival of Amish communities." Id., at 209 (emphasis added). Like respondents here, the Amish view life as pervasively religious and their faith accordingly dictates their entire lifestyle. See id., at 210. Detailed as their religious rules are, however, the parents in Yoder did not argue that their religion expressly proscribed public education beyond the eighth grade; rather, they objected to the law because "the values . . . of the modern secondary school are in sharp conflict with the fundamental mode of life mandated by the Amish religion." Id., at 217 (emphasis added). By exposing Amish children "to a [467] `worldly' influence in conflict with their beliefs," and by removing those children "from their community, physically and emotionally, during the crucial and formative adolescent period of life" when Amish beliefs are inculcated, id., at 211, the compulsory school law posed "a very real threat of undermining the Amish community and religious practice." Id., at 218. Admittedly, this threat arose from the compulsory nature of the law at issue, but it was the "impact" on religious practice itself, not the source of that impact, that led us to invalidate the law.

I thus cannot accept the Court's premise that the form of the government's restraint on religious practice, rather than its effect, controls our constitutional analysis. Respondents here have demonstrated that construction of the G-O road will completely frustrate the practice of their religion, for as the lower courts found, the proposed logging and construction activities will virtually destroy respondents' religion, and will therefore necessarily force them into abandoning those practices altogether. Indeed, the Government's proposed activities will restrain religious practice to a far greater degree here than in any of the cases cited by the Court today. None of the religious adherents in Hobbie, Thomas, and Sherbert, for example, claimed or could have claimed that the denial of unemployment benefits rendered the practice of their religions impossible; at most, the challenged laws made those practices more expensive. Here, in stark contrast, respondents have claimed — and proved — that the desecration of the high country will prevent religious leaders from attaining the religious power or medicine indispensable to the success of virtually all their rituals and ceremonies. Similarly, in Yoder the compulsory school law threatened to "undermin[e] the Amish community and religious practice," and thus to force adherents to "abandon belief. . . or . . . to migrate to some other and more tolerant region." 406 U. S., at 218. Here the threat posed by the desecration of sacred lands that are indisputably essential to [468] respondents' religious practices is both more direct and more substantial than that raised by a compulsory school law that simply exposed Amish children to an alien value system. And of course respondents here do not even have the option, however unattractive it might be, of migrating to more hospitable locales; the site-specific nature of their belief system renders it nontransportable.

Ultimately, the Court's coercion test turns on a distinction between governmental actions that compel affirmative conduct inconsistent with religious belief, and those governmental actions that prevent conduct consistent with religious belief. In my view, such a distinction is without constitutional significance. The crucial word in the constitutional text, as the Court itself acknowledges, is "prohibit," see ante, at 451, a comprehensive term that in no way suggests that the intended protection is aimed only at governmental actions that coerce affirmative conduct.^[4] Nor does the Court's distinction comport with the principles animating the constitutional guarantee: religious freedom is threatened no less by governmental action that makes the practice of one's chosen faith impossible than by governmental programs that pressure one to engage in conduct inconsistent with religious beliefs. The Court attempts to explain the line it draws by arguing that the protections of the Free Exercise Clause "cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development," ibid., [469] for in a society as diverse as ours, the Government cannot help but offend the "religious needs and desires" of some citizens. Ante, at 452. While I agree that governmental action that simply offends religious sensibilities may not be challenged under the Clause, we have recognized that laws that affect spiritual development by impeding the integration of children into the religious community or by increasing the expense of adherence to religious principles — in short, laws that frustrate or inhibit religious practice — trigger the protections of the constitutional guarantee. Both common sense and our prior cases teach us, therefore, that governmental action that makes the practice of a given faith more difficult necessarily penalizes that practice and thereby tends to prevent adherence to religious belief. The harm to the practitioners is the same regardless of the manner in which the government restrains their religious expression, and the Court's fear that an "effects" test will permit religious adherents to challenge governmental actions they merely find "offensive" in no way justifies its refusal to recognize the constitutional injury citizens suffer when governmental action not only offends but actually restrains their religious practices. Here, respondents have demonstrated that the Government's proposed activities will completely prevent them from practicing their religion, and such a showing, no less than those made out in Hobbie, Thomas, Sherbert, and Yoder, entitles them to the protections of the Free Exercise Clause.

B

Nor can I agree with the Court's assertion that respondents' constitutional claim is foreclosed by our decision in Bowen v. Roy, 476 U.S. 693 (1986). There, applicants for certain welfare benefits objected to the use of a Social Security number in connection with the administration of their 2-year-old daughter's application for benefits, contending that such use would "rob the [child's] spirit" and thus interfere with her spiritual development. In rejecting that challenge, [470] we stated that "[t]he Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens." Id., at 699 (emphasis added); see also id., at 716-717 (STEVENS, J., concurring in part) ("[T]he Free Exercise Clause does not give an individual the right to dictate the Government's method of recordkeeping"). Accordingly, we explained that Roy could

"no more prevail on his religious objection to the Government's use of a Social Security number for his daughter than he could on a sincere religious objection to the size or color of the Government's filing cabinets. The Free Exercise Clause affords an individual protection from certain forms of governmental compulsion; it does not afford an individual a right to dictate the conduct of the Government's internal procedures." Id., at 700 (emphasis added).

Today the Court professes an inability to differentiate Roy from the present case, suggesting that "[t]he building of a road or the harvesting of timber on publicly owned land cannot meaningfully be distinguished from the use of a Social Security number." Ante, at 449. I find this inability altogether remarkable. In Roy, we repeatedly stressed the "internal" nature of the Government practice at issue: noting that Roy objected to "the widespread use of the social security number by the federal or state governments in their computer systems," 476 U. S., at 697 (citation omitted; internal quotation marks omitted; emphasis added), we likened the use of such recordkeeping numbers to decisions concerning the purchase of office equipment. When the Government processes information, of course, it acts in a purely internal manner, and any free exercise challenge to such internal recordkeeping in effect seeks to dictate how the Government conducts its own affairs.

Federal land-use decisions, by contrast, are likely to have substantial external effects that government decisions concerning [471] office furniture and information storage obviously will not, and they are correspondingly subject to public scrutiny and public challenge in a host of ways that office equipment purchases are not.^[5] Indeed, in the American Indian Religious Freedom Act (AIRFA), 42 U. S. C. § 1996, Congress expressly recognized the adverse impact land-use decisions and other governmental actions frequently have on the site-specific religious practices of Native Americans, and the Act accordingly directs agencies to consult with Native American religious leaders before taking actions that might impair those practices. Although I agree that the Act does not create any judicially enforceable rights, see ante, at 455, the absence of any private right of action in no way undermines the statute's significance as an express congressional determination that federal land management decisions are not "internal" Government "procedures," but are instead governmental actions that can and indeed are likely to burden Native American religious practices. That such decisions should be subject to constitutional challenge, and potential constitutional limitations, should hardly come as a surprise.

The Court today, however, ignores Roy's emphasis on the internal nature of the Government practice at issue there, [472] and instead construes that case as further support for the proposition that governmental action that does not coerce conduct inconsistent with religious faith simply does not implicate the concerns of the Free Exercise Clause. That such a reading is wholly untenable, however, is demonstrated by the cruelly surreal result it produces here: governmental action that will virtually destroy a religion is nevertheless deemed not to "burden" that religion. Moreover, in AIRFA Congress explicitly acknowledged that federal "policies and regulations" could and often did "intrud[e] upon [and] interfer[e] with" site-specific Native American religious ceremonies, Pub. L. 95-341, 92 Stat. 469, and in Roy we recognized that this Act — "with its emphasis on protecting the freedom to believe, express, and exercise a religion — accurately identifies the mission of the Free Exercise Clause itself." 476 U. S., at 700. Ultimately, in Roy we concluded that, however much the Government's recordkeeping system may have offended Roy's sincere religious sensibilities, he could not challenge that system under the Free Exercise Clause because the Government's practice did not "in any degree impair Roy's `freedom to believe, express, and exercise' his religion." Id., at 700-701 (quoting AIRFA, 42 U. S. C. § 1996) (emphasis added). That determination distinguishes the injury at issue here, which the Court finds so "remarkably similar" to Roy's, ante, at 456, for respondents have made an uncontroverted showing that the proposed construction and logging activities will impair their freedom to exercise their religion in the greatest degree imaginable, and Congress has "accurately identifie[d]" such injuries as falling within the scope of the Free Exercise Clause. The Court's reading of Roy, therefore, simply cannot be squared with our endorsement — in that very same case — of this congressional determination. More important, it lends no support to the Court's efforts to narrow both the reach and promise of the Free Exercise Clause itself.

[473] C

In the final analysis, the Court's refusal to recognize the constitutional dimension of respondents' injuries stems from its concern that acceptance of respondents' claim could potentially strip the Government of its ability to manage and use vast tracts of federal property. See ante, at 452-453. In addition, the nature of respondents' site-specific religious practices raises the specter of future suits in which Native Americans seek to exclude all human activity from such areas. Ibid. These concededly legitimate concerns lie at the very heart of this case, which represents yet another stress point in the longstanding conflict between two disparate cultures — the dominant Western culture, which views land in terms of ownership and use, and that of Native Americans, in which concepts of private property are not only alien, but contrary to a belief system that holds land sacred. Rather than address this conflict in any meaningful fashion, however, the Court disclaims all responsibility for balancing these competing and potentially irreconcilable interests, choosing instead to turn this difficult task over to the Federal Legislature. Such an abdication is more than merely indefensible as an institutional matter: by defining respondents' injury as "nonconstitutional," the Court has effectively bestowed on one party to this conflict the unilateral authority to resolve all future disputes in its favor, subject only to the Court's toothless exhortation to be "sensitive" to affected religions. In my view, however, Native Americans deserve — and the Constitution demands — more than this.

Prior to today's decision, several Courts of Appeals had attempted to fashion a test that accommodates the competing "demands" placed on federal property by the two cultures. Recognizing that the Government normally enjoys plenary authority over federal lands, the Courts of Appeals required Native Americans to demonstrate that any land-use decisions they challenged involved lands that were "central" or "indispensable" to their religious practices. See, e. g., Northwest [474] Indian Cemetery Protective Assn. v. Peterson, 795 F. 2d 688 (CA9 1986) (case below); Wilson v. Block, 228 U. S. App. D. C. 166, 708 F. 2d 735, cert. denied, 464 U. S. 956 (1983); Badoni v. Higginson, 638 F. 2d 172 (CA10 1980), cert. denied, 452 U. S. 954 (1981); Sequoyah v. TVA, 620 F. 2d 1159 (CA6), cert. denied, 449 U. S. 953 (1980); Crow v. Gullet, 541 F. Supp. 785 (SD 1982), aff'd, 706 F. 2d 856 (CA8), cert. denied, 464 U. S. 977 (1983). Although this requirement limits the potential number of free exercise claims that might be brought to federal land management decisions, and thus forestalls the possibility that the Government will find itself ensnared in a host of Lilliputian lawsuits, it has been criticized as inherently ethnocentric, for it incorrectly assumes that Native American belief systems ascribe religious significance to land in a traditionally Western hierarchical manner. See Michaelsen, American Indian Religious Freedom Litigation: Promise and Perils, 3 J. Law & Rel. 47 (1985); Pepper, Conundrum of the Free Exercise Clause — Some Reflections on Recent Cases, 9 N. Ky. L. Rev. 265, 283-284 (1982). It is frequently the case in constitutional litigation, however, that courts are called upon to balance interests that are not readily translated into rough equivalents. At their most absolute, the competing claims that both the Government and Native Americans assert in federal land are fundamentally incompatible, and unless they are tempered by compromise, mutual accommodation will remain impossible.

I believe it appropriate, therefore, to require some showing of "centrality" before the Government can be required either to come forward with a compelling justification for its proposed use of federal land or to forgo that use altogether. "Centrality," however, should not be equated with the survival or extinction of the religion itself. In Yoder, for example, we treated the objection to the compulsory school attendance of adolescents as "central" to the Amish faith even though such attendance did not prevent or otherwise render the practice of that religion impossible, and instead simply [475] threatened to "undermine" that faith. Because of their perceptions of and relationship with the natural world, Native Americans consider all land sacred. Nevertheless, the Theodoratus Report reveals that respondents here deemed certain lands more powerful and more directly related to their religious practices than others. Thus, in my view, while Native Americans need not demonstrate, as respondents did here, that the Government's land-use decision will assuredly eradicate their faith, I do not think it is enough to allege simply that the land in question is held sacred. Rather, adherents challenging a proposed use of federal land should be required to show that the decision poses a substantial and realistic threat of frustrating their religious practices. Once such a showing is made, the burden should shift to the Government to come forward with a compelling state interest sufficient to justify the infringement of those practices.

The Court today suggests that such an approach would place courts in the untenable position of deciding which practices and beliefs are "central" to a given faith and which are not, and invites the prospect of judges advising some religious adherents that they "misunderstand their own religious beliefs." Ante, at 458. In fact, however, courts need not undertake any such inquiries: like all other religious adherents, Native Americans would be the arbiters of which practices are central to their faith, subject only to the normal requirement that their claims be genuine and sincere. The question for the courts, then, is not whether the Native American claimants understand their own religion, but rather whether they have discharged their burden of demonstrating, as the Amish did with respect to the compulsory school law in Yoder, that the land-use decision poses a substantial and realistic threat of undermining or frustrating their religious practices. Ironically, the Court's apparent solicitude for the integrity of religious belief and its desire to forestall the possibility that courts might second-guess the [476] claims of religious adherents leads to far greater inequities than those the Court postulates: today's ruling sacrifices a religion at least as old as the Nation itself, along with the spiritual well-being of its approximately 5,000 adherents, so that the Forest Service can build a 6-mile segment of road that two lower courts found had only the most marginal and speculative utility, both to the Government itself and to the private lumber interests that might conceivably use it.

Similarly, the Court's concern that the claims of Native Americans will place "religious servitudes" upon vast tracts of federal property cannot justify its refusal to recognize the constitutional injury respondents will suffer here. It is true, as the Court notes, that respondents' religious use of the high country requires privacy and solitude. The fact remains, however, that respondents have never asked the Forest Service to exclude others from the area. Should respondents or any other group seek to force the Government to protect their religious practices from the interference of private parties, such a demand would implicate not only the concerns of the Free Exercise Clause, but also those of the Establishment Clause as well. That case, however, is most assuredly not before us today, and in any event cannot justify the Court's refusal to acknowledge that the injuries respondents will suffer as a result of the Government's proposed activities are sufficient to state a constitutional cause of action.

III

Today, the Court holds that a federal land-use decision that promises to destroy an entire religion does not burden the practice of that faith in a manner recognized by the Free Exercise Clause. Having thus stripped respondents and all other Native Americans of any constitutional protection against perhaps the most serious threat to their age-old religious practices, and indeed to their entire way of life, the Court assures us that nothing in its decision "should be read to encourage governmental insensitivity to the religious [477] needs of any citizen." Ante, at 453. I find it difficult, however, to imagine conduct more insensitive to religious needs than the Government's determination to build a marginally useful road in the face of uncontradicted evidence that the road will render the practice of respondents' religion impossible. Nor do I believe that respondents will derive any solace from the knowledge that although the practice of their religion will become "more difficult" as a result of the Government's actions, they remain free to maintain their religious beliefs. Given today's ruling, that freedom amounts to nothing more than the right to believe that their religion will be destroyed. The safeguarding of such a hollow freedom not only makes a mockery of the " `policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the[ir] traditional religions,' " ante, at 454 (quoting AIRFA), it fails utterly to accord with the dictates of the First Amendment.

I dissent.

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[*] Briefs of amici curiae urging reversal were filed for the State of Hawaii et al. by Kenneth O. Eikenberry, Attorney General of Washington, Timothy R. Malone, Nixon Handy, and Mark S. Green, Assistant Attorneys General, Warren Price III, Attorney General of Hawaii, Roger A. Tellinghuisen, Attorney General of South Dakota, and David Wilkinson, Attorney General of Utah; for the Colorado Mining Association et al. by Lawrence E. Stevens and Patrick J. Garver; for the Howonquet Community Association et al. by Ronald A. Zumbrun and Robin L. Rivett; and for the city of Williams, Arizona, by Gary Verburg.

Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union Foundation et al. by John A. Powell, Steven R. Shapiro, Paul L. Hoffman, Mark D. Rosenbaum, Alan L. Schlosser, Edward M. Chen, Matthew A. Coles, and Stephen L. Pevar; for the American Jewish Congress et al. by Marc D. Stern, Lois C. Waldman, and Amy Adelson; and for the Christian Legal Society et al. by Michael J. Woodruff, Samuel Rabinove, Richard T. Foltin, and Jordan Lorence.

Steven C. Moore filed a brief for the National Congress of American Indians et al. as amici curiae.

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[1] Respondent Indians were joined in this suit by the State of California as well as various environmental groups. For the sake of simplicity, I use the term "respondents" to refer exclusively to the affected Native American religious practitioners.

[2] The Court overlooks this finding when it suggests that the only protective measure the Service did not take was the untenable one of "abandoning its project entirely, and thereby leaving the two existing segments of road to dead-end in the middle of a National Forest." Ante, at 454. Far from finding that option untenable, the District Court expressly concluded that the segments had independent economic and administrative utility, and thus that past investments in the paved sections did not justify construction of the Chimney Rock segment. See 565 F. Supp., at 596.

[3] Remarkably, the Court treats this factual determination as nothing more than an assumption or "prediction," ante, at 451, and suggests that it is "less than certain that construction of the road will be so disruptive that it will doom [respondents'] religion." Ibid. Such speculation flies in the face of the most basic principles of appellate review, see Fed. Rule Civ. Proc. 52(a) ("Findings of fact . . . shall not be set aside unless clearly erroneous"), and is wholly at odds with the well-settled rule that this Court will not disturb findings of facts agreed upon by both lower courts unless those findings are clearly in error. United States v. Ceccolini, 435 U.S. 268, 273 (1978). Even if our review were not governed by such rules, however, the mere fact that a handful of the Native Americans who reside in the affected area do not oppose the road in no way casts doubt upon the validity of the lower courts' amply supported factual findings, particularly where the members of this minority did not indicate whether their lack of objection reflected their assessment of the religious significance of the high country, or their own apathy towards religious matters generally.

[4] The Court is apparently of the view that the term "prohibit" in the Free Exercise Clause somehow limits the constitutional protection such that it cannot possibly be understood to reach " `any form of government action that frustrates or inhibits religious practice.' " Ante, at 456 (quoting supra, at 459) (emphasis added by majority). Although the dictionary is hardly the final word on the meaning of constitutional language, it is noteworthy that Webster's includes, as one of the two accepted definitions of "prohibit," "to prevent from doing something." Webster's Ninth New Collegiate Dictionary 940 (1983). Government action that frustrates or inhibits religious practice fits far more comfortably within this definition than does the Court's affirmative compulsion test.

[5] Thus, for example, agencies proposing to use or permit activities on federal lands must comply with various public notice, consultation, and impact evaluation requirements imposed by the National Historic Preservation Act, 16 U.S.C. §§ 470f, 470h-2(f); the Archaeological Resources Protection Act, 16 U.S.C. § 470aa et seq.; the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq.; the Wilderness Act, 16 U.S.C. § 1131 et seq.; and the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. Concededly, these statutes protect interests in addition to the religious interests Native Americans may have in a pristine environment, and of course the constitutional protection afforded those religious interests is not dependent upon these congressional enactments. Nevertheless, the laws stand as evidence, if indeed any were needed, that federal land-use decisions are fundamentally different from government decisions concerning information management, and that, under Roy, this difference in external effects is of constitutional magnitude.

UNITED STATES v. LARA

No. 03-107.

Argued January 21, 2004

Decided April 19, 2004

*195Deputy Solicitor General Kneedler argued the cause for the United States. On the briefs were Solicitor General Olson, Assistant Attorney General Wray, Deputy Solicitor General Dreeben, Barbara McDowell, and Richard A. Friedman.

Alexander F. Reichert, by appointment of the Court, 540 U. S. 980, argued the cause for respondent. With him on the brief were Ronald A. Reichert and James E. Smith. *

*

Briefs of amici curiae urging reversal were filed for the State of Idaho et al. by Lawrence G.' Wasden, Attorney General of Idaho, and Clay R. Smith, Deputy Attorney General, and by the Attorneys General for their respective States as follows: William H. Pryor, Jr., of Alabama, Richard P. Ieyoub of Louisiana, Jon Bruning of Nebraska, Larry Long of South Dakota, and Mark L. Shurtleff of Utah; for the State of Washington et al. by Christine O. Gregoire, Attorney General of Washington, Robert K. Costello, Deputy Attorney General, and William Berggren Collins, Senior Assistant Attorney General, and by the Attorneys General for their respective States as follows: Terry Goddard of Arizona, Bill Lockyer of California, Ken Salazar of Colorado, Michael A. Cox of Michigan, Mike Mc-Grath of Montana, Patricia A. Madrid of New Mexico, and Hardy Myers of Oregon; for the Spirit Lake Sioux Tribe of North Dakota et al. by Tracy Labin, Richard Guest, and Charles A. Hobbs; and for the National Con*196gress of American Indians by Carter G. Phillips, Virginia A Seitz, and Riyaz A. Kanji.

Briefs of amici curiae urging affirmance were filed for Lewis County, Idaho, et al. by Tom D. Tobin and Kimron Torgerson; for the Citizens Equal Rights Foundation by Randy V Thompson; and for the National Association of Criminal Defense Lawyers by Virginia G. Villa and Joshua L. Dratel.

Jon Metropoulos filed a brief of amici curiae for Thomas Lee Morris et al.

*196Justice Breyer

delivered the opinion of the Court.

This case concerns a congressional statute “recognizing] and affirming]” the “inherent” authority of a tribe to bring a criminal misdemeanor prosecution against an Indian who is not a member of that tribe — authority that this Court previously held a tribe did not possess. Compare 25 U. S. C. § 1301(2) with Duro v. Reina, 495 U. S. 676 (1990). We must decide whether Congress has the constitutional power to relax restrictions that the political branches have, over time, placed on the exercise of a tribe’s inherent legal authority. We conclude that Congress does possess this power.

I

Respondent Billy Jo Lara is an enrolled member of the Turtle Mountain Band of Chippewa Indians in north-central North Dakota. He married a member of a different tribe, the Spirit Lake Tribe, and lived with his wife and children on the Spirit Lake Reservation, also located in North Dakota. See Brief for Spirit Lake Sioux Tribe of North Dakota et al. as Amici Curiae 4-5. After several incidents of serious misconduct, the Spirit Lake Tribe issued an order excluding him from the reservation. Lara ignored the order; federal officers stopped him; and he struck one of the arresting officers. 324 F. 3d 635, 636 (CA8 2003) (en banc).

The Spirit Lake Tribe subsequently prosecuted Lara in the Spirit Lake Tribal Court for “violence to a policeman.” Ibid. Lara pleaded guilty and, in respect to that crime, served 90 days in jail. See ibid.; Tr. of Oral Arg. 28.

*197After Lara’s tribal conviction, the Federal Government charged Lara in the Federal District Court for the District of North Dakota with the federal crime of assaulting a federal officer. 324 F. 3d, at 636; 18 U. S. C. § 111(a)(1). Key elements of this federal crime mirror elements of the tribal crime of “violence to a policeman.” See Brief for United States 7. And this similarity between the two crimes would ordinarily have brought Lara within the protective reach of the Double Jeopardy Clause. U. S. Const., Arndt. 5 (the Government may not “subject” any person “for the same of-fence to be twice put in jeopardy of life or limb”); 324 F. 3d, at 636. But the Government, responding to Lara’s claim of double jeopardy, pointed out that the Double Jeopardy Clause does not bar successive prosecutions brought by separate sovereigns, and it argued that this “dual sovereignty” doctrine determined the outcome here. See Heath v. Alabama, 474 U. S. 82, 88 (1985) (the Double Jeopardy Clause reflects the “common-law conception of crime as an offense against the sovereignty of the government”; when “a defendant in a single act violates the ‘peace and dignity’ of two sovereigns by breaking the laws of each, he has committed two distinct ‘offences’ ”).

The Government noted that this Court has held that an Indian tribe acts as a separate sovereign when it prosecutes its own members. United States v. Wheeler, 435 U. S. 313, 318, 322-323 (1978) (a tribe’s “sovereign power to punish tribal offenders,” while subject to congressional “defea-sance,” remains among those “ ‘inherent powers of a limited sovereignty which has never been extinguished’” (emphasis added and deleted)). The Government recognized, of course, that Lara is not one of the Spirit Lake Tribe’s own members; it also recognized that, in Duro v. Reina, supra, this Court had held that a tribe no longer possessed inherent or sovereign authority to prosecute a “nonmember Indian.” Id., at 682. But it pointed out that, soon after this Court decided Duro, Congress enacted new legislation specifically *198authorizing a tribe to prosecute Indian members of a different tribe. See Act of Nov. 5, 1990, §§ 8077(b) — Cd), 104 Stat. 1892-1893 (temporary legislation until September 30, 1991); Act of Oct. 28, 1991, 105 Stat. 646 (permanent legislation). That new statute, in permitting a tribe to bring certain tribal prosecutions against nonmember Indians, does not purport to delegate the Federal Government’s own federal power. Rather, it enlarges the tribes’ own “ ‘powers of self-government’” to include “the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians,” including nonmembers. 25 U. S. C. § 1301(2) (emphasis added).

In the Government’s view, given this statute, the Tribe, in prosecuting Lara, had exercised its own inherent tribal authority, not delegated federal authority; hence the “dual sovereignty” doctrine applies, Heath, supra, at 88; and since the two prosecutions were brought by two different sovereigns, the second, federal, prosecution does not violate the Double Jeopardy Clause.

The Federal Magistrate Judge accepted the Government’s argument and rejected Lara’s double jeopardy claim. 324 F. 3d, at 636-637. An Eighth Circuit panel agreed with the Magistrate Judge. 294 F. 3d 1004 (2002). But the en banc Court of Appeals, by a vote of 7 to 4, reached a different conclusion. 324 F. 3d 635 (2003). It held the Tribal Court, in prosecuting Lara, was exercising a federal prosecutorial power; hence the “dual sovereignty” doctrine does not apply; and the Double Jeopardy Clause bars the second prosecution. Id., at 640. The four dissenting judges, agreeing with the Federal Government, concluded that the Tribal Court had exercised inherent tribal power in prosecuting Lara; hence the “dual sovereignty” doctrine applies and allows the second, federal, prosecution. Id., at 641 (opinion of M. Arnold, J.).

Because the Eighth Circuit and Ninth Circuit have reached different conclusions about the new statute, we *199granted certiorari. Cf. United States v. Enas, 255 F. 3d 662 (CA9 2001) (en banc), cert. denied, 534 U. S. 1115 (2002). We now reverse the Eighth Circuit.

II

We assume, as do the parties, that Lara’s double jeopardy claim turns on the answer to the “dual sovereignty” question. What is “the source of [the] power to punish” nonmember Indian offenders, “inherent tribal sovereignty” or delegated federal authority? Wheeler, supra, at 322 (emphasis added).

We also believe that Congress intended the former answer. The statute says that it “recognize[s] and affirm[s]” in each tribe the “inherent” tribal power (not delegated federal power) to prosecute nonmember Indians for misdemeanors. See supra, at 198; Appendix, infra (emphasis added). And the statute’s legislative history confirms that such was Congress’ intent. See, e.g., H. R. Conf. Rep. No. 102-261, pp. 3-4 (1991) (“The Committee of the Conference notes that ... this legislation is not a delegation of this jurisdiction but a clarification of the status of tribes as domestic dependent nations”); accord, H. R. Rep. No. 102-61, p. 7 (1991); see also S. Rep. No. 102-168, p. 4 (1991) (“recognizing] and reaffirming] the inherent authority of tribal governments to exercise criminal jurisdiction over all Indians”); 137 Cong. Ree. 9446 (1991) (remarks of Sen. Inouye) (the “premise [of the legislation] is that the Congress affirms the inherent jurisdiction of tribal governments over nonmember Indians” (emphasis added)); id., at 10712-10714 (remarks of Rep. Miller, House manager of the bill) (the statute “is not a delegation of authority but an affirmation that tribes retain all rights not expressly taken away” and the bill “recognizes an inherent tribal right which always existed”); id., at 10713 (remarks of Rep. Richardson, a sponsor of the amendment) (the legislation “reaffirms” tribes’ power).

*200Thus the statute seeks to adjust the tribes’ status. It relaxes the restrictions, recognized in Duro, that the political branches had imposed on the tribes’ exercise of inherent prosecutorial power. The question before us is whether the Constitution authorizes Congress to do so. Several considerations lead us to the conclusion that Congress does possess the constitutional power to lift the restrictions on the tribes’ criminal jurisdiction over nonmember Indians as the statute seeks to do.

First, the Constitution grants Congress broad general powers to legislate in respect to Indian tribes, powers that we have consistently described as “plenary and exclusive.” E. g., Washington v. Confederated Bands and Tribes of Yakima Nation, 439 U. S. 463, 470-471 (1979); Negonsott v. Samuels, 507 U. S. 99, 103 (1993); see Wheeler, 435 U. S., at 323; see also W. Canby, American Indian Law 2 (3d ed. 1998) (hereinafter Canby) (“[T]he independence of the tribes is subject to exceptionally great powers of Congress to regulate and modify the status of the tribes”).

This Court has traditionally identified the Indian Commerce Clause, U. S. Const., Art. I, §8, cl. 3, and the Treaty Clause, Art. II, § 2, cl. 2, as sources of that power. E. g., Morton v. Mancari, 417 U. S. 535, 552 (1974); McClanahan v. Arizona Tax Comm’n, 411 U. S. 164, 172, n. 7 (1973); see also Canby 11-12; F. Cohen, Handbook of Federal Indian Law 209-210 (1982 ed.) (hereinafter Cohen) (also mentioning, inter alia, the Property Clause). The “central function of the Indian Commerce Clause,” we have said, “is to provide Congress with plenary power to legislate in the field of Indian affairs.” Cotton Petroleum Corp. v. New Mexico, 490 U. S. 163, 192 (1989); see also, e. g., Ramah Navajo School Bd., Inc. v. Bureau of Revenue of N. M., 458 U. S. 832, 837 (1982) (“broad power” under the Indian Commerce Clause); White Mountain Apache Tribe v. Bracker, 448 U. S. 136, 142 (1980) (same, and citing Wheeler, supra, at 322-323).

*201The treaty power does not literally authorize Congress to act legislatively, for it is an Article II power authorizing the President, not Congress, “to make Treaties.” U. S. Const., Art. II, § 2, cl. 2. But, as Justice Holmes pointed out, treaties made pursuant to that power can authorize Congress to deal with “matters” with which otherwise “Congress could not deal.” Missouri v. Holland, 252 U. S. 416, 433 (1920); see also L. Henkin, Foreign Affairs and the U. S. Constitution 72 (2d ed. 1996). And for much of the Nation’s history, treaties, and legislation made pursuant to those treaties, governed relations between the Federal Government and the Indian tribes. See, e. g., Cohen 109-111; F. Prucha, American Indian Policy in the Formative Years 44-49 (1962).

We recognize that in 1871 Congress ended the practice of entering into treaties with the Indian tribes. 25 U. S. C. § 71 (stating that tribes are not entities “with whom the United States may contract by treaty”). But the statute saved existing treaties from béing “invalidated or impaired,” ibid., and this Court has explicitly stated that the statute “in no way affected Congress’ plenary powers to legislate on problems of Indians,” Antoine v. Washington, 420 U. S. 194, 203 (1975) (emphasis deleted).

Moreover, “at least during the first century of America’s national existence . . . Indian affairs were more an aspect of military and foreign policy than a subject of domestic or municipal law.” Cohen 208 (footnotes omitted). Insofar as that is so, Congress’ legislative authority would rest in part, not upon “affirmative grants of the Constitution,” but upon the Constitution’s adoption of preconstitutional powers necessarily inherent in any Federal Government, namely, powers that this Court has described as “necessary concomitants of nationality.” United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 315-322 (1936); Henkin, supra, at 14-22, 63-72; cf. 2 J. Continental Cong. 174-175 (1775) (W. Ford ed. 1905) (creating departments of Indian affairs, appointing Indian commissioners, and noting the great importance of “se*202curing and preserving the friendship of the Indian Nations”); Worcester v. Georgia, 6 Pet. 515, 557 (1832) (“The treaties and laws of the United States contemplate . .. that all intercourse with [Indians] shall be carried on exclusively by the government of the union”).

Second, Congress, with this Court’s approval, has interpreted the Constitution’s “plenary” grants of power as authorizing it to enact legislation that both restricts and, in turn, relaxes those restrictions on tribal sovereign authority. From the Nation’s beginning Congress’ need for such legislative power would have seemed obvious. After all, the Government’s Indian policies, applicable to numerous tribes with diverse cultures, affecting billions of acres of land, of necessity would fluctuate dramatically as the needs of the Nation and those of the tribes changed over time. See, e. g., Cohen 48. And Congress has in fact authorized at different times very different Indian policies (some with beneficial results but many with tragic consequences). Congressional policy, for example, initially favored “Indian removal,” then “assimilation” and the breakup of tribal lands, then protection of the tribal land base (interrupted by a movement toward greater state involvement and “termination” of recognized tribes); and it now seeks greater tribal autonomy within the framework of a “government-to-government relationship” with federal agencies. 59 Fed. Reg. 22951 (1994); see also 19 Weekly Comp, of Pres. Doc. 98 (1983) (President Reagan reaffirming the rejection of termination as a policy and announcing the goal of decreasing tribal dependence on the Federal Government); see 25 U. S. C. § 450a(b) (congressional commitment to “the development of strong and stable tribal governments”). See generally Cohen 78-202 (describing this history); Canby 13-32 (same).

Such major policy changes inevitably involve major changes in the metes and bounds of tribal sovereignty. The 1871 statute, for example, changed the status of an Indian tribe from a “powe[r] . . . capable of making treaties” to a *203“power with whom the United States may [not] contract by treaty.” Compare Worcester, supra, at 559, with 25 U.S. C. §71.

One can readily find examples in congressional decisions to recognize, or to terminate, the existence of individual tribes. See United States v. Holliday, 3 Wall. 407, 419 (1866) (“If by [the political branches] those Indians are recognized as a tribe, this court must do the same”); Menominee Tribe v. United States, 391 U. S. 404 (1968) (examining the rights of Menominee Indians following the termination of their Tribe). Indeed, Congress has restored previously extinguished tribal status — by re-recognizing a Tribe whose tribal existence it previously had terminated. 25 U. S. C. §§ 903-903f (restoring the Menominee Tribe); cf. United States v. Long, 324 F. 3d 475 (CA7) (upholding against double jeopardy challenge successive prosecutions by the restored Menominee Tribe and the Federal Government), cert. denied, 540 U. S. 822 (2003). Congress has advanced policies of integration by conferring United States citizenship upon all Indians. 8 U. S. C. § 1401(b). Congress has also granted tribes greater autonomy in their inherent law enforcement authority (in respect to tribal members) by increasing the maximum criminal penalties tribal courts may impose. §4217, 100 Stat. 3207-146, codified at 25 U. S. C. § 1302(7) (raising the maximum from “a term of six months and a fine of $500” to “a term of one year and a fine of $5,000”).

Third, Congress’ statutory goal — to modify the degree of autonomy enjoyed by a dependent sovereign that is not a State — is not an unusual legislative objective. The political branches, drawing upon analogous constitutional authority, have made adjustments to the autonomous státus of other such dependent entities — sometimes making far more radical adjustments than those at issue here. See, e. g., Hawaii— Hawaii v. Mankichi, 190 U. S. 197, 209-211 (1903) (describing annexation of Hawaii by joint resolution of Congress and the maintenance of a “Republic of Hawaii” until formal incorpo*204ration by Congress); Northern Mariana Islands — note following 48 U. S. C. § 1801 (“in accordance with the [United Nations] trusteeship agreement . . . [establishing] a self-governing commonwealth ... in political union with and under the sovereignty of the United States”); the Philippines — 22 U. S. C. § 1394 (congressional authorization for the President to “withdraw and surrender all right of... sovereignty” and to “recognize the independence of the Philippine Islands as a separate and self-governing nation”); Presidential Proclamation No. '2695, 60 Stat. 1352 (so proclaiming); Puerto Rico — Act of July 3,1950, 64 Stat. 319 (“[T]his Act is now adopted in the nature of a compact so that people of Puerto Rico may organize a government pursuant to a constitution of their own adoption”); P. R. Const., Art. I, §1 (“Estado Libre Asociado de Puerto Rico”); see also Cordova & Simonpietri Ins. Agency Inc. v. Chase Manhattan Bank N. A., 649 F. 2d 36, 39-41 (CA1 1981) (describing various adjustments to Puerto Rican autonomy through congressional legislation since 1898).

Fourth, Lara points to no explicit language in the Constitution suggesting a limitation on Congress’ institutional authority to relax restrictions on tribal sovereignty previously imposed by the political branches. But cf. Part III, infra.

Fifth, the change at issue here is a limited one. It concerns a power similar in some respects to the power to prosecute a tribe’s own members — a power that this Court has called “inherent.” Wheeler, 435 U. S., at 322-323. In large part it concerns a tribe’s authority to control events that occur upon the tribe’s own land. See United States v. Mazurie, 419 U. S. 544, 557 (1975) (“Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory” (emphasis added)); see also, e. g., S. Rep. No. 102-168, at 21 (remarks of P. Hugen). And the tribes’ possession of this additional criminal jurisdiction is consistent with our traditional understanding of the tribes’ status as “domestic dependent nations.” Chero*205kee Nation v. Georgia, 5 Pet. 1, 17 (1831); see also id., at 16 (describing tribe as “a distinct political society, separated from others, capable of managing its own affairs and governing itself”)- Consequently, we are not now faced with a question dealing with potential constitutional limits on congressional efforts to legislate far more radical changes in tribal status. In particular, this case involves no interference with the power or authority of any State. Nor do we now consider the question whether the Constitution’s Due Process or Equal Protection Clauses prohibit tribes from prosecuting a nonmember citizen of the United States. See Part III, infra.

Sixth, our conclusion that Congress has the power to relax the restrictions imposed by the political branches on the tribes’ inherent prosecutorial authority is consistent with our earlier cases. True, the Court held in those cases that the power to prosecute nonmembers was an aspect of the tribes’ external relations and hence part of the tribal sovereignty that was divested by treaties and by Congress. Wheeler, supra, at 326; Oliphant v. Suquamish Tribe, 435 U. S. 191, 209-210 (1978); Duro, 495 U. S., at 686. But these holdings reflect the Court’s view of the tribes’ retained sovereign status as of the time the Court made them. They did not set forth constitutional limits that prohibit Congress from changing the relevant legal circumstances, i. e., from taking actions that modify or adjust the tribes’ status.

To the contrary, Oliphant and Duro make clear that the Constitution does not dictate the metes and bounds of tribal autonomy, nor do they suggest that the Court should second-guess the political branches’ own determinations. In Oliphant, the Court rested its conclusion about inherent tribal authority to prosecute tribe members in large part upon “the commonly shared presumption of Congress, the Executive Branch, and lower federal courts,” a presumption which, “[w]hile not conclusive!,] carries considerable weight.” 435 U. S., at 206. The Court pointed out that *206“ ‘Indian law’ draws principally upon the treaties drawn and executed by the Executive Branch and legislation passed by Congress.” Ibid, (emphasis added). It added that those “instruments . . . form the backdrop for the intricate web of judicially made Indian law.” Ibid, (emphasis added).

Similarly, in Duro, the Court drew upon a host of different sources in order to reach its conclusion that a tribe does not possess the inherent power to prosecute a nonmember. The Court referred to historic practices, the views of experts, the experience of forerunners of modern tribal courts, and the published opinions of the Solicitor of the Department of the Interior. 495 U. S., at 689-692. See also, e. g., Nevada v. Hicks, 533 U. S. 353, 361, n. 4 (2001) (“Our holding in Worcester must be considered in light of... the 1828 treaty” (alterations and internal quotation marks omitted)); South Dakota v. Bourland, 508 U. S. 679, 695 (1993) (“Having concluded that Congress clearly abrogated the Tribe’s pre-existing regulatory control over non-Indian hunting and fishing, we find no evidence in the relevant treaties or statutes that Congress intended to allow the Tribes to assert regulatory jurisdiction over these lands pursuant to inherent sovereignty” (emphasis added)); National Farmers Union Ins. Cos. v. Crow Tribe, 471 U. S. 845, 855-856 (1985) (“[T]he existence and extent of a tribal court’s jurisdiction will require [inter alia] a detailed study of relevant statutes, Executive Branch policy as embodied in treaties and elsewhere, and administrative or judicial decisions”); United States v. Kagama, 118 U. S. 375, 382-383 (1886) (characterizing Ex parte Crow Dog, 109 U. S. 556, 570 (1883), as resting on extant treaties and statutes and recognizing congressional overruling of Crow Dog).

Thus, the Court in these cases based its descriptions of inherent tribal authority upon the sources as they existed at the time the Court issued its decisions. Congressional legislation constituted one such important source. And that source was subject to change. Indeed Duro itself antici*207pated change by inviting interested parties to “address the problem [to] Congress.” 495 U. S., at 698.

We concede that Duro, like several other cases, referred only to the need to obtain a congressional statute that “delegated” power to the tribes. See id., at 686 (emphasis added); Bourland, supra, at 695, n. 15; Montana v. United States, 450 U. S. 544, 564 (1981); Mazurie, 419 U. S., at 556-557. But in so stating, Duro (like the other cases) simply did not consider whether a statute, like the present one, could constitutionally achieve the same end by removing restrictions on the tribes’ inherent authority. Consequently we do not read any of these cases as holding that the Constitution forbids Congress to change “judicially made” federal Indian law through this kind of legislation. Oliphant, supra, at 206; cf. County of Oneida v. Oneida Indian Nation of N. Y., 470 U. S. 226, 233-237 (1985) (recognizing the “federal common law” component of Indian rights, which “common law” federal courts develop as “a ‘necessary expedient’ when Congress has not ‘spoken to a particular issue’ ” (quoting Milwaukee v. Illinois, 451 U. S. 304, 313-315 (1981))); id., at 313 (“[F]ederal common law is ‘subject to the paramount authority of Congress’ ” (quoting New Jersey v. New York, 283 U. S. 336, 348 (1931))).

Wheeler, Oliphant, and Duro, then, are not determinative because Congress has enacted a new statute, relaxing restrictions on the bounds of the inherent tribal authority that the United States recognizes. And that fact makes all the difference.

III

Lara makes several additional arguments. First, he points out that the Indian Civil Rights Act of 1968, 82 Stat. 77, lacks certain constitutional protections for criminal defendants, in particular the right of an indigent defendant to counsel. See 25 U. S. C. § 1302. And he argues that the Due Process Clause forbids Congress to permit a tribe to prosecute a nonmember Indian citizen of the United States *208in a forum that lacks this protection. See Argersinger v. Hamlin, 407 U. S. 25 (1972) (Constitution guarantees indigents counsel where imprisonment possible).

Lara’s due process argument, however, suffers from a critical structural defect. To explain the defect, we contrast this argument with Lara’s “lack of constitutional power” argument discussed in Part II, supra. Insofar as that “constitutional power” argument might help Lara win his double jeopardy claim, it must proceed in four steps:

Step One: Congress does not possess the constitutional power to enact a statute that modifies tribal power by “recognizing] and affirming]” the tribes’ “inherent” authority to prosecute nonmember Indians. 25 U. S. C. § 1301(2).

Step Two: Consequently, the word “inherent” in the statute’s phrase “inherent power” is void.

Step Three: The word “inherent” is severable from the rest of the statute (as are related words). The remainder of the statute is valid without those words, but it then delegates federal power to the tribe to conduct the prosecution.

Step Four: Consequently, the Tribe’s prosecution of Lara was federal. The current, second, prosecution is also federal. Hence Lara wins his Double Jeopardy Clause claim, the subject of the present proceeding.

Although the Eighth Circuit accepted this argument, 324 F. 3d, at 640, we reject Step One of the argument, Part II, supra. That rejection, without more, invalidates the argument.

Lara’s due process argument, however, is significantly different. That argument (if valid) would show that any prosecution of a nonmember Indian under the statute is invalid; so Lara’s tribal prosecution would be invalid, too. Showing Lara’s tribal prosecution was invalid, however, does not show that the source of that tribal prosecution was federal power (showing that a state prosecution violated the Due Process Clause does not make that prosecution federal). *209But without that “federal power” showing, Lara cannot win his double jeopardy claim here. Hence, we need not, and we shall not, consider the merits of Lara’s due process claim. Other defendants in tribal proceedings remain free to raise that claim should they wish to do so. See 25 U. S. C. § 1303 (vesting district courts with jurisdiction over habeas writs from tribal courts).

Second, Lara argues that Congress’ use of the words “all Indians,” in the statutory phrase “inherent power ... to exercise criminal jurisdiction over all Indians,” violates the Equal Protection Clause. He says that insofar as the words include nonmember Indians within the statute’s scope (while excluding all non-Indians) the statute is race based and without justification. Like the due process argument, however, this equal protection argument is simply beside the point, therefore we do not address it. At best for Lara, the argument (if valid) would show, not that Lara’s first conviction was federal, but that it was constitutionally defective. And that showing cannot help Lara win his double jeopardy claim.

Third, Lara points out that the Duro Court found the absence of certain constitutional safeguards, for example, the guarantee of an indigent’s right to counsel, as an important reason for concluding that tribes lacked the “inherent power” to try a “group of citizens” (namely, nonmember Indians) who were not “include[d]” in those “political bodies.” 495 U. S., at 693-694. In fact, Duro says the following: “We hesitate to adopt a view of tribal sovereignty that would single out another group of citizens, nonmember Indians, for trial by political bodies that do not include them.” Id., at 693. But this argument simply repeats the due process and equal protection arguments rejected above in a somewhat different form. Since precisely the same problem would exist were we to treat the congressional statute as delegating federal power, this argument helps Lara no more than the others.

*210IV

For these reasons, we hold, with the reservations set forth in Part III, supra, that the Constitution authorizes Congress to permit tribes, as an exercise of their inherent tribal authority, to prosecute nonmember Indians. We hold that Congress exercised that authority in writing this statute. That being so, the Spirit Lake Tribe’s prosecution of Lara did not amount to an exercise of federal power, and the Tribe acted in its capacity of a separate sovereign. Consequently, the Double Jeopardy Clause does not prohibit the Federal Government from proceeding with the present prosecution for a discrete federal offense. Heath, 474 U. S., at 88.

The contrary judgment of the Eighth Circuit is

Reversed.

APPENDIX TO OPINION OF THE COURT

Title 25 U. S. C. § 1301(2), as amended by Act of Oct. 28, 1991, 105 Stat. 646, provides:

“ ‘[Pjowers of self-government’ means and includes all governmental powers possessed by an Indian tribe, executive, legislative, and judicial, and all offices, bodies, and tribunals by and through which they are executed, including courts of Indian offenses; and means the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians.”

Justice Stevens,

concurring.

While I join the Court’s opinion without reservation, the additional writing by my colleagues prompts this comment. The inherent sovereignty of the Indian tribes has a historical basis that merits special mention. They governed territory on this continent long before Columbus arrived. In contrast, most of the States were never actually independent sovereigns, and those that were enjoyed that independent *211status for only a few years. Given the fact that Congress can authorize the States to exercise — as their own — inherent powers that the Constitution has otherwise placed off limits, see, e. g., Prudential Ins. Co. v. Benjamin, 328 U. S. 408, 437-438 (1946), I find nothing exceptional in the conclusion that it can also relax restrictions on an ancient inherent tribal power.

Justice Kennedy,

concurring in the judgment.

The amendment to the Indian Civil Rights Act of 1968 (ICRA) enacted after the Court’s decision in Duro v. Reina, 495 U. S. 676 (1990), demonstrates Congress’ clear intention to restore to the tribes an inherent sovereign power to prosecute nonmember Indians. Congress was careful to rely on the theory of inherent sovereignty, and not on a delegation. Justice Souter’s position that it was a delegation nonetheless, post, at 231 (dissenting opinion), is by no means without support, but I would take Congress at its word. Under that view, the first prosecution of Lara was not a delegated federal prosecution, and his double jeopardy argument must fail. That is all we need say to resolve this case.

The Court’s analysis goes beyond this narrower rationale and culminates in a surprising holding: “For these reasons, we hold . . . that the Constitution authorizes Congress to permit tribes, as an exercise of their inherent tribal authority, to prosecute nonmember Indians.” Ante, at 210. The Court’s holding is on a point of major significance to our understanding and interpretation of the Constitution; and, in my respectful view, it is most doubtful.

Were we called upon to decide whether Congress has this power, it would be a difficult question. Our decision in United States v. Wheeler, 435 U. S. 313 (1978), which the Court cites today but discusses very little, is replete with references to the inherent authority of the tribe over its own members. As I read that case, it is the historic possession of inherent power over “the relations among members of a *212tribe” that is the whole justification for the limited tribal sovereignty the Court there recognized. Id., at 326. It is a most troubling proposition to say that Congress can relax the restrictions on inherent tribal sovereignty in a way that extends that sovereignty beyond those historical limits. Cf., e. g., Strate v. A-1 Contractors, 520 U. S. 438, 445-446 (1997) (“In the main . . . ‘the inherent sovereign powers of an Indian tribe’ — those powers a tribe enjoys apart from express provision by treaty or statute — ‘do not .extend to the activities of nonmembers of the tribe’ ” (quoting Montana v. United States, 450 U. S. 544, 565 (1981))). To conclude that a tribe’s inherent sovereignty allows it to exercise jurisdiction over a nonmember in a criminal case is to enlarge the “unique and limited character” of the inherent sovereignty that Wheeler recognized. 435 U. S., at 323.

Lara, after all, is a citizen of the United States. To hold that Congress can subject him, within our domestic borders, to a sovereignty outside the basic structure of the Constitution is a serious step. The Constitution is based on a theory of original, and continuing, consent of the governed. Their consent depends on the understanding that the Constitution has established the federal structure, which grants the citizen the protection of two governments, the Nation and the State. Each sovereign must respect the proper sphere of the other, for the citizen has rights and duties as to both. See U S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 838-839 (1995) (Kennedy, J., concurring). Here, contrary to this design, the National Government seeks to. subject a citizen to the criminal jurisdiction of a third entity to be tried for conduct occurring wholly within the territorial borders of the Nation and one of the States. This is unprecedented. There is a historical exception for Indian tribes, but only to the limited extent that a member of a tribe consents to be subjected to the jurisdiction of his own tribe. See Duro, supra, at 693. The majority today reaches beyond that limited exception.

*213The Court resolves, or perhaps avoids, the basic question of the power of the Government to yield authority inside the domestic borders over citizens to a third sovereign by using the euphemistic formulation that in amending the ICRA Congress merely relaxed restrictions on the tribes. See ante, at 196, 200, 202, 205, and 207. There is no language in the statute, or the legislative history, that justifies this unusual phrase, cf. 25 U. S. C. § 1301(2) (referring to “the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians”); and, in my respectful view, it obscures what is actually at stake in this case. The terms of the statute are best understood as a grant or cession from Congress to the tribes, and it should not be doubted that what Congress has attempted to do is subject American citizens to the authority of an extraconsti-tutional sovereign to which they had not previously been subject. The relaxing-restrictions formulation is further belied by the involvement of the United States in all aspects of the tribal prosecution of a nonmember Indian. Federal law defines the separate tribes, § 1301, the broader class of “Indians,” the maximum penalty which the tribes may impose for crimes, and the procedural protections to which defendants are entitled in the trials, §1302. This does not indicate the sort of detachment from the exercise of pros-ecutorial authority implicit in the description of Congress’ Act as having relaxed restrictions.

In addition to trying to evade the important structural question by relying on the verbal formula of relaxation, the Court also tries to bolster its position by noting that due process and equal protection claims are still reserved. Ante, at 210. That is true, but it ignores the elementary principle that the constitutional structure was in place before the Fifth and Fourteenth Amendments were adopted. To demean the constitutional structure and the consent upon which it rests by implying they are wholly dependent for their vindication on the Due Process and Equal Protection *214Clauses is a further, unreasoned holding of serious import. The political freedom guaranteed to citizens by the federal structure is a liberty both distinct from and every bit as important as those freedoms guaranteed by the Bill of Rights. Cf. Clinton v. City of New York, 524 U. S. 417, 449-453 (1998) (Kennedy, J., concurring). The individual citizen has an enforceable right to those structural guarantees of liberty, a right which the majority ignores. Perhaps the Court’s holding could be justified by an argument that by enrolling in one tribe Lara consented to the criminal jurisdiction of other tribes, but the Court does not mention the point. And, in all events, we should be cautious about adopting that fiction.

The present case, however, does not require us to address these difficult questions of constitutional dimension. Congress made it clear that its intent was to recognize and affirm tribal authority to try Indian nonmembers as inherent in tribal status. The proper occasion to test the legitimacy of the Tribe’s authority, that is, whether Congress had the power to do what it sought to do, was in the first, tribal proceeding. There, however, Lara made no objection to the Tribe’s authority to try him. In the second, federal proceeding, because the express rationale for the Tribe’s authority to try Lara — whether legitimate or not — was inherent sovereignty, not delegated federal power, there can be no double jeopardy violation. Cf. Grafton v. United States, 206 U. S. 333, 345 (1907) (“[B]efore a person can be said to have been put in jeopardy of life or limb the court in which he was acquitted or convicted must have had jurisdiction to try him for the offense charged”). For that reason, I concur in the judgment.

Justice Thomas,

concurring in the judgment.

As this case should make clear, the time has come to reexamine the premises and logic of our tribal sovereignty cases. It seems to me that much of the confusion reflected *215in our precedent arises from two largely incompatible and doubtful assumptions. First, Congress (rather than some other part of the Federal Government) can regulate virtually every aspect of the tribes without rendering tribal sovereignty a nullity. See, e.g., United States v. Wheeler, 435 U. S. 313, 319 (1978). Second, the Indian tribes retain inherent sovereignty to enforce their criminal laws against their own members. See, e.g., id., at 326. These assumptions, which I must accept as the case comes to us, dictate the outcome in this ease, and I therefore concur in the judgment.

I write separately principally because the Court fails to confront these tensions, a result that flows from the Court’s inadequate constitutional analysis. I cannot agree with the Court, for instance, that the Constitution grants to Congress plenary power to calibrate the “metes and bounds of tribal sovereignty.” Ante, at 202; see also ante, at 210 (holding that “the Constitution authorizes Congress” to regulate tribal sovereignty). Unlike the Court, ante, at 200-201, I cannot locate such congressional authority in the Treaty Clause, U. S. Const., Art. II, § 2, cl. 2, or the Indian Commerce Clause, Art. I, § 8, cl. 3. Additionally, I would ascribe much more significance to legislation such as the Act of Mar. 3, 1871, Rev. Stat. §2079,16 Stat. 566, codified at 25 U. S. C. § 71, that purports to terminate the practice of dealing with Indian tribes by treaty. The making of treaties, after all, is the one mechanism that the Constitution clearly provides for the Federal Government to interact with sovereigns other than the States. Yet, if I accept that Congress does have this authority, I believe that the result in Wheeler is questionable. In my view, the tribes either are or are not separate sovereigns, and our federal Indian law cases untenably hold both positions simultaneously.

I

In response to the Court’s decision in Duro v. Reina, 495 U. S. 676 (1990) (holding that the tribes lack inherent author*216ity to prosecute nonmember Indians), Congress amended the Indian Civil Rights Act of 1968 (ICRA). Specifically, through this “Duro fix,” Congress amended ICRA’s definition of the tribes’ “powers of self-government” to “recog-niz[e] and affir[m]” the existence of “inherent power ... to exercise criminal jurisdiction over all Indians.” 25 U. S. C. § 1301(2). There is quite simply no way to interpret a recognition and affirmation of inherent power as a delegation of federal power, as the Court explains. Ante, at 199. Delegated power is the very antithesis of inherent power.

But even if the statute were less clear, I would not interpret it as a delegation of federal power. The power to bring federal prosecutions, which is part of the putative delegated power, is manifestly and quintessentially executive power. Morrison v. Olson, 487 U. S. 654, 691 (1988); id., at 705 (Scalia, J., dissenting). Congress cannot transfer federal executive power to individuals who are beyond “meaningful Presidential control.” Printz v. United States, 521 U. S. 898, 922-923 (1997). And this means that, at a minimum, the President must have some measure of “the power to appoint and remove” those exercising that power. Id., at 922; see also Morrison, supra, at 706-715 (Scalia, J., dissenting).

It does not appear that the President has any control over tribal officials, let alone a substantial measure of the appointment and removal power. Cf. Brief for National Congress of American Indians as Amicus Curiae 27-29. Thus, at least until we are prepared to recognize absolutely independent agencies entirely outside of the Executive Branch with the power to bind the Executive Branch (for a tribal prosecution would then bar a subsequent federal prosecution), the tribes cannot be analogized to administrative agencies, as the dissent suggests, post, at 227 (opinion of Souter, J.). That is, reading the “Duro fix” as a delegation of federal power (without also divining some adequate method of Presidential control) would create grave constitutional difficulties. Cf. INS v. St. Cyr, 533 U. S. 289, 299-300 (2001); Solid Waste *217Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159, 173 (2001). Accordingly, the Court has only two options: Either the “Duro fix” changed the result in Duro or it did nothing at all.1

II

In Wheeler, 435 U. S., at 322-323, the Court explained that, prior to colonization, “the tribes were self-governing sovereign political communities.” The Court acknowledged, however, that, after “[t]heir incorporation within the territory of the United States,” the tribes could exercise their inherent sovereignty only as consistent with federal policy embodied in treaties, statutes, and Executive Orders. Id., at 323; see also id., at 327-328. Examining these sources for potential conflict, the Court concluded that the tribes retained the ability to exercise their inherent sovereignty to punish their own members. Id., at 323-330.

Although Wheeler seems to be a sensible example of federal common lawmaking, I am not convinced that it was correctly decided. To be sure, it makes sense to conceptualize *218the tribes as sovereigns that, due to their unique situation, cannot exercise the full measure of their sovereign powers. Wheeler, at times, seems to analyze the problem in just this way. See, e. g., id., at 323-326; id., at 323 (relying on Oliphant v. Suquamish Tribe, 435 U. S. 191 (1978), discussed infra).

But I do not see how this is consistent with the apparently “undisputed fact that Congress has plenary authority to legislate for the Indian tribes in all matters, including their form of government.” 435 U. S., at 319. The sovereign is, by definition, the entity “in which independent and supreme authority is vested.” Black’s Law Dictionary 1395 (6th ed. 1990). It is quite arguably the essence of sovereignty not to exist merely at the whim of an external government.

Further, federal policy itself could be thought to be inconsistent with this residual-sovereignty theory. In 1871, Congress enacted a statute that purported to prohibit entering into treaties with the “Indian nation[s] or tribe[s].” 16 Stat. 566, codified at 25 U. S» C. § 71. Although this Act is constitutionally suspect (the Constitution vests in the President both the power to make treaties, Art. II, §2, cl. 2, and to recognize foreign governments, Art. II, §3; see, e. g., United States v. Pink, 315 U. S. 203, 228-230 (1942)), it nevertheless reflects the view of the political branches that the tribes had become a purely domestic matter.

To be sure, this does not quite suffice to demonstrate that the tribes had lost their sovereignty. After all, States retain sovereignty despite the fact that Congress can regulate States qua States in certain limited circumstances. See, e. g., Katzenbach v. Morgan, 384 U. S. 641 (1966); cf. New York v. United States, 505 U. S. 144, 160-161 (1992); Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528 (1985). But the States (unlike the tribes) are part of a constitutional framework that allocates sovereignty between the State and Federal Governments and specifically grants Congress authority to legislate with respect to them, see *219U. S. Const., Arndt. 14, § 5. And even so, we have explained that “the Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States.” New York, 505 U. S., at 166; id., at 162-166; see also Printz, 521 U. S., at 910-915.

The tribes, by contrast, are not part of this constitutional order, and their sovereignty is not guaranteed by it. As Chief Justice Marshall explained:

“[T]he relation of the Indians to the United States is marked by peculiar and cardinal distinctions which exist no where else....

“[Y]et it may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may, more correctly, perhaps, be denominated domestic dependent nations.” Cherokee Nation v. Georgia, 5 Pet. 1, 16-17 (1831).

Chief Justice Marshall further described the tribes as “independent political communities, retaining their original natural rights,” and specifically noted that the tribes possessed the power to “mak[e] treaties.” Worcester v. Georgia, 6 Pet. 515, 559 (1832). Although the tribes never fit comfortably within the category of foreign nations, the 1871 Act tends to show that the political branches no longer considered the tribes to be anything like foreign nations. And it is at least arguable that the United States no longer considered the tribes to be sovereigns.2 Federal Indian policy is, to say the least, schizophrenic. And this confusion continues to infuse federal Indian law and our eases.

*220Nevertheless, if I accept Wheeler, I also must accept that the tribes do retain inherent sovereignty (at least to enforce their criminal laws against their own members) and the logical consequences of this fact. In Heath v. Alabama, 474 U. S. 82, 88 (1985), the Court elaborated the dual sovereignty doctrine and explained that a single act that violates the “ ‘peace and dignity’ of two sovereigns by breaking the laws of each” constitutes two separate offenses. This, of course, is the reason that the Double Jeopardy Clause does not bar successive prosecutions by separate sovereigns. But whether an act violates the “peace and dignity” of a sovereign depends not in the least on whether the perpetrator is a member (in the case of the tribes) or a citizen (in the case of the States and the Nation) of the sovereign.

Heath also instructs, relying on Wheeler, that the separate-sovereign inquiry “turns on whether the two entities draw their authority to punish the offender from distinct sources of power.” Heath, supra, at 88. But Wheeler makes clear that the tribes and the Federal Government do draw their authority to punish from distinct sources and that they are separate sovereigns. Otherwise, the subsequent federal prosecution in Wheeler would have violated the Double Jeopardy Clause.3 It follows from our case law that Indian tribes possess inherent sovereignty to punish anyone who violates their laws.

In Duro v. Reina, 495 U. S. 676 (1990), the Court held that the Indian tribes could no longer enforce their criminal laws against nonmember Indians. Despite the obvious tension, Duro and Wheeler are not necessarily inconsistent. Although Wheeler and Heath, taken together, necessarily imply that the tribes retain inherent sovereignty to try anyone who violates their criminal laws, Wheeler and Duro make *221clear that conflict with federal policy can operate to prohibit the exercise of this sovereignty. Duro, then, is not a case about “inherent sovereignty” (a term that we have used too imprecisely); rather, it is a case about whether a specific exercise of tribal sovereignty conflicts with federal policy.

Indeed, the Court in Duro relied primarily on Oliphant v. Suquamish Tribe, 435 U. S. 191 (1978), which held that tribes could not enforce their criminal laws against non-Indians. In reaching that conclusion, the Court in Oliphant carefully examined the views of Congress and the Executive Branch. Id., at 197-206 (discussing treaties, statutes, and views of the Executive Branch); id., at 199 (discussing Attorney General opinions, including 2 Op. Atty. Gen. 693 (1834) (concluding that tribal exercise of criminal jurisdiction over non-Indians was inconsistent with various treaties)). Duro at least rehearsed the same analysis. 495 U. S., at 688-692. Thus, although Duro is sprinkled with references to various constitutional concerns, see, e. g., id., at 693-694, Duro, Oliphant, and Wheeler are classic federal-common-law decisions. See also County of Oneida v. Oneida Indian Nation of N. Y., 470 U. S. 226, 233-236 (1985).

I acknowledge that our cases have distinguished between “tribal power [that] is necessary to protect tribal self-government or to control internal relations” and tribal power as it relates to the external world. Montana v. United States, 450 U. S. 544, 564 (1981); see also Nevada v. Hicks, 533 U. S. 353, 358-359 (2001); South Dakota v. Bourland, 508 U. S. 679, 695, n. 15 (1993); Duro, supra, at 685-686; Wheeler, 435 U. S., at 322-325. This distinction makes perfect sense as a matter of federal common laiv: Purely “internal” matters are by definition unlikely to implicate any federal policy. But, critically, our cases have never drawn this line as a constitutional matter. That is why we have analyzed extant federal law (embodied in treaties, statutes, and Executive Orders) before concluding that particular tribal assertions of power were incompatible with the position of the tribes. *222See, e. g., National Farmers Union Ins. Cos. v. Crow Tribe, 471 U. S. 845, 853-854 (1985); Oliphant, supra, at 204 (“While Congress never expressly forbade Indian tribes to impose criminal penalties on non-Indians, we now make express our implicit conclusion of nearly a century ago [referring to In re Mayfield, 141 U. S. 107 (1891)] that Congress consistently believed this to be the necessary result of its repeated legislative actions”).4

As noted, in response to Duro, Congress amended ICRA. Specifically, Congress “recognized and affirmed” the existence of “inherent power ... to exercise criminal jurisdiction over all Indians.” 25 U. S. C. § 1301(2). President Bush signed this legislation into law. See 27 Weekly Comp, of Pres. Doc. 1573-1574 (1991). Further, as this litigation demonstrates, it is the position of the Executive Branch that the tribes possess inherent authority to prosecute nonmember Indians.

In my view, these authoritative pronouncements of the political branches make clear that the exercise of this aspect of sovereignty is not inconsistent with federal policy and therefore with the position of the tribes. Thus, while Duro may have been a correct federal-common-law decision at the time, the political branches have subsequently made clear that the *223tribes’ exercise of criminal jurisdiction against nonmember Indians is consistent with federal policy. The potential conflicts on which Duro must have been premised, according to the political branches, do not exist. See also ante, at 205. I therefore agree that, as the case comes to us, the Tribe acted as a separate sovereign when it prosecuted respondent. Accordingly, the Double Jeopardy Clause does not bar the subsequent federal prosecution.

Ill

I believe that we must examine more critically our tribal sovereignty case law. Both the Court and the dissent, however, compound the confusion by failing to undertake the necessary rigorous constitutional analysis. I would begin by carefully following our assumptions to their logical conclusions and by identifying the potential sources of federal power to modify tribal sovereignty.

The dissent admits that “[treaties and statutes delineating the tribal-federal relationship are properly viewed as an independent elaboration by the political branches of the fine details of the tribes’ dependent position, which strips the tribes of any power to exercise criminal jurisdiction over those outside their own memberships.” Post, at 228. To the extent that this is a description of the federal-common-law process, I agree. But I do not understand how the dissent can then conclude that “the jurisdictional implications [arising from this analysis are] constitutional in nature.” Ibid. By this I understand the dissent to mean that Congress cannot alter the result, though the dissent never quite says so.

The analysis obviously has constitutional implications. It is, for example, dispositive of respondent’s double jeopardy claim. But it does not follow that this Court’s federal-common-law decisions limiting tribes’ authority to exercise their inherent sovereignty somehow become enshrined as constitutional holdings that the political branches cannot *224alter. When the political branches demonstrate that a particular exercise of the tribes’ sovereign power is in fact consistent with federal policy, the underpinnings of a federal-common-law decision disabling the exercise of that tribal power disappear. Although I do not necessarily agree that the tribes have any residual inherent sovereignty or that Congress is the constitutionally appropriate branch to make adjustments to sovereignty, see Part II, supra, it is important to recognize the logical implications of these assumptions.

Similarly unavailing is the dissent’s observation that when we perform the separate-sovereign analysis “we are undertaking a constitutional analysis based on legal categories of constitutional dimension.” Post, at 229. The dissent concludes from this that our double jeopardy analysis in this context “must itself have had constitutional status.” Ibid. This ipse dixit does not transform our common-law decisions into constitutional holdings. Cf. Dickerson v. United States, 530 U. S. 428, 459-461 (2000) (Scalia, J., dissenting).

I do, however, agree that this case raises important constitutional questions that the Court does not begin to answer. The Court utterly fails to find any provision of the Constitution that gives Congress enumerated power to alter tribal sovereignty. The Court cites the Indian Commerce Clause and the treaty power. Ante, at 200. I cannot agree that the Indian Commerce Clause “ *provide[s] Congress with plenary power to legislate in the field of Indian affairs.’ ” Ibid. (quoting Cotton Petroleum Corp. v. New Mexico, 490 U. S. 163, 192 (1989)). At one time, the implausibility of this assertion at least troubled the Court, see, e. g., United States v. Kagama, 118 U. S. 375, 378-379 (1886) (considering such a construction of the Indian Commerce Clause to be “very strained”), and I would be willing to revisit the question. Cf., e. g., United States v. Morrison, 529 U. S. 598 (2000); United States v. Lopez, 514 U. S. 549 (1995); id., at 584-593 (Thomas, J., concurring).

*225Next, the Court acknowledges that “[t]he treaty power does not literally authorize Congress to act legislatively, for it is an Article II power authorizing the President, not Congress, ‘to make Treaties.’ ” Ante, at 201 (quoting U. S. Const., Art. II, § 2, cl. 2). This, of course, suffices to show that it provides no power to Congress, at least in the absence of a specific treaty. Cf. Missouri v. Holland, 252 U. S. 416 (1920). The treaty power does not, as the Court seems to believe, provide Congress with free-floating power to legislate as it sees fit on topics that could potentially implicate some unspecified treaty. Such an assertion is especially ironic in light of Congress’ enacted prohibition on Indian treaties.

In the end, the Court resorts to citing past examples of congressional assertions of this or similar power. Ante, at 202-203. At times, such history might suffice. Cf. Dames & Moore v. Regan, 453 U. S. 654, 686 (1981); Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 610-611 (1952) (Frankfurter, J., concurring). But it does not suffice here for at least two reasons. First, federal Indian law is at odds with itself. I find it difficult to reconcile the result in Wheeler with Congress’ 1871 prospective prohibition on the making of treaties with the Indian tribes. The Federal Government cannot simultaneously claim power to regulate virtually every aspect of the tribes through ordinary domestic legislation and also maintain that the tribes possess anything resembling “sovereignty.” See Part II, supra. In short, the history points in both directions.

Second, much of the practice that the Court cites does not actually help its argument. The “Insular Cases,” which include the Hawaii and Puerto Rico examples, ante, at 203-204, involved Territories of the United States, over which Congress has plenary power to govern and regulate. See Reid v. Covert, 354 U. S. 1, 13 (1957); U. S. Const., Art. IV, §3, cl. 2. The existence of a textual source for congressional power distinguishes these cases. And, incidentally, al*226though one might think that Congress’ authority over the tribes could be found in Article IV, § 3, cl. 2, the Court has held that the Territories are the United States for double jeopardy purposes, see, e. g., Wheeler, 435 U. S., at 321-322; Puerto Rico v. Shell Co. (P. R.), Ltd., 302 U. S. 253, 264-266 (1937), which would preclude the result in Wheeler. It is for this reason as well that the degree of autonomy of Puerto Rico is beside the point. See Wheeler, supra, at 321; post, at 229.

The Court should admit that it has failed in its quest to find a source of congressional power to adjust tribal sovereignty. Such an acknowledgment might allow the Court to ask the logically antecedent question whether Congress (as opposed to the President) has this power. A cogent answer would serve as the foundation for the analysis of the sovereignty issues posed by this case. We might find that the Federal Government cannot regulate the tribes through ordinary domestic legislation and simultaneously maintain that the tribes are sovereigns in any meaningful sense. But until we begin to analyze these questions honestly and rigorously, the confusion that I have identified will continue to haunt our cases.

1

I am sympathetic to Justice Kennedy’s position that we need not resolve the question presented. Ante, at 211 (opinion concurring in judgment). If Congress has power to restore tribal authority to prosecute nonmember Indians, respondent’s tribal prosecution was the legitimate exercise of a separate sovereign. As such, under the dual sovereignty doctrine, it does not bar his subsequent federal prosecution. On the other hand, if the amendment to ICRA had no effect (the only other possibility), jeopardy did not attach in the tribal prosecution. See, e. g., Serfass v. United States, 420 U. S. 377, 391 (1975); Grafton v. United States, 206 U. S. 333, 345 (1907) (noting “that before a person can be said to have been put in jeopardy of life or limb the court in which he was acquitted or convicted must have had jurisdiction to try him for the offense charged”); United States v. Phelps, 168 F. 3d 1048, 1053-1054 (CA8 1999) (holding tribal court prosecution without jurisdiction did not bar subsequent federal prosecution). Jeopardy could have attached in the tribal prosecution for federal purposes only if the Federal Government had authorized the prosecution. But Congress did not authorize tribal prosecutions, and nothing suggests that the Executive Branch prompted respondent’s tribal prosecution.

2

Additionally, the very enactment of ICRA through normal legislation conflicts with the notion that tribes possess inherent sovereignty. Title 25 U. S. C. § 1302, for example, requires tribes “in exercising powers of self-government” to accord individuals most of the protections in the Bill of Rights. I doubt whether Congress could, through ordinary legislation, require States (let alone foreign nations) to use grand juries.

3

1 acknowledge that Wheeler focused specifically on the tribes’ authority to try their own members. See 435 U. S., at 323-330. But, as I discuss below, the distinction between the tribes’ external and internal powers is not constitutionally required.

4

Justice Souter believes that I have overlooked Oliphant’s reliance on sources other than “treaties, statutes, and the views of the Executive Branch.” Post, at 230, n. 2. Justice Souter quotes the following passage from Oliphant: “[E]ven ignoring treaty provisions and congressional policy, Indians do not have criminal jurisdiction over non-Indians absent affirmative delegation of such power by Congress. . . . Indian tribes are prohibited from exercising both those powers of autonomous states that are expressly terminated by Congress and those powers inconsistent with their status.’’ 435 U. S., at 208 (emphasis added; internal quotation marks and citation omitted). The second quoted sentence is entirely consistent with federal common lawmaking and is difficult to understand as anything else. I admit that the first sentence, which removes from consideration most of the sources of federal common law, makes the second sentence puzzling. But this is precisely the confusion that I have identified and that I hope the Court begins (o resolve.

Justice Souter,

with whom Justice Scalia joins,

dissenting.

It is as true today as it was in 1886 that the relationship of Indian tribes to the National Government is “an anomalous one and of a complex character.” United States v. Kagama, 118 U. S. 375, 381. Questions of tribal jurisdiction, whether legislative or judicial, do not get much help from the general proposition that tribes are “domestic dependent nations,” Cherokee Nation v. Georgia, 5 Pet. 1, 17 (1831), or “wards of the [American] nation,” Kagama, supra, at 383. Our cases deciding specific questions, however, demonstrate that the tribes do retain jurisdiction necessary to protect tribal self-government or control internal tribal relations, *227Montana v. United States, 450 U. S. 544, 564 (1981), including the right to prosecute tribal members for crimes, United States v. Wheeler, 435 U. S. 313, 323-324 (1978), a sovereign right that is “inherent,” ibid., but neither exclusive, Kagama, supra, at 384-385 (federal criminal jurisdiction), nor immune to abrogation by Congress, Wheeler, supra, at 323 (“the sufferance of Congress”). Furthermore, except as provided by Congress, tribes lack criminal jurisdiction over non-Indians, Oliphant v. Suquamish Tribe, 435 U. S. 191, 212 (1978), and over nonmember Indians, Duro v. Reina, 495 U. S. 676, 685, 688 (1990).

Of particular relevance today, we held in Duro that because tribes have lost their inherent criminal jurisdiction over nonmember Indians, any subsequent exercise of such jurisdiction “could only have come to the Tribe” (if at all) “by delegation from Congress.” Id., at 686. Three years later, in South Dakota v. Bourland, 508 U. S. 679 (1993), we reiterated this understanding that any such “delegation” would not be a restoration of prior inherent sovereignty; we specifically explained that “tribal sovereignty over nonmembers cannot survive without express congressional delegation, and is therefore not inherent.” Id., at 695, n. 15 (emphasis in original; citation and internal quotation marks omitted).1 Our precedent, then, is that any tribal exercise of criminal jurisdiction over nonmembers necessarily rests on a “delegation” of federal power and is not akin to a State’s congressionally permitted exercise of some authority that would otherwise be barred by the dormant Commerce Clause, see New York v. United States, 505 U. S. 144, 171 (1992). It is more like the delegation of lawmaking power to an administrative agency, whose jurisdiction would not even exist absent congressional authorization.

*228It is of no moment that we have given ostensibly alternating explanations for this conclusion. We have sometimes indicated that the tribes’ lack of inherent criminal jurisdiction over nonmembers is a necessary legal consequence of the basic fact that the tribes are dependent on the Federal Government. Wheeler, supra, at 326 (“[The tribes’ inability to] try nonmembers in tribal courts . . . rest[s] on the fact that the dependent status of Indian tribes within our territorial jurisdiction is necessarily inconsistent with their freedom independently to determine their external relations”); Oliphant, 435 U. S., at 210 (“By submitting to the overriding sovereignty of the United States, Indian tribes therefore necessarily give up their power to try non-Indian citizens of the United States . . .”). At other times, our language has suggested that the jurisdictional limit stems from congressional and treaty limitations on tribal powers. See id., at 204 (“Congress’ various actions and inactions in regulating criminal jurisdiction on Indian reservations demonstrated an intent to reserve jurisdiction over non-Indians for the federal courts”); National Farmers Union Ins. Cos. v. Crow Tribe, 471 U. S. 845, 853-854 (1985) (“In Oliphant we ... concluded that federal legislation conferring jurisdiction on the federal courts to try non-Indians for offenses committed in Indian Country had implicitly pre-empted tribal jurisdiction”). What has never been explicitly stated, but should come as no surprise, is that these two accounts are not inconsistent. Treaties and statutes delineating the tribal-federal relationship are properly viewed as an independent elaboration by the political, branches of the fine details of the tribes’ dependent position, which strips the tribes of any power to exercise criminal jurisdiction over those outside their own memberships.

What should also be clear, and what I would hold today, is that our previous understanding of the jurisdictional implications of dependent sovereignty was constitutional in nature, certainly so far as its significance under the Double Jeopardy *229Clause is concerned. Our discussions of Indian sovereignty have naturally focused on the scope of tribes’ inherent legislative or judicial jurisdiction. E. g., Nevada v. Hicks, 533 U. S. 353 (2001) (jurisdiction of tribal courts over civil suit against state official); South Dakota v. Bourland, supra (tribal regulations governing hunting and fishing). And application of the double jeopardy doctrine of dual sovereignty, under which one independent sovereign’s exercise of criminal jurisdiction does not bar another sovereign’s subsequent prosecution of the same defendant, turns on just this question of how far a prosecuting entity’s inherent jurisdiction extends. Grafton v. United States, 206 U. S. 333, 354-355 (1907). When we enquire “whether the two [prosecuting] entities draw their authority to punish the offender from distinct sources of power,” Heath v. Alabama, 474 U. S. 82, 88 (1985), in other words, we are undertaking a constitutional analysis based on legal categories of constitutional dimension (1 e., is this entity an independent or dependent sovereign?). Thus, our application of the doctrines of independent and dependent sovereignty to Indian tribes in response to a double jeopardy claim must itself have had constitutional status. See Wheeler, supra, at 326 (holding that tribes’ inability to prosecute nonmembers “rest[s] on the fact that the dependent status of Indian tribes within our territorial jurisdiction is necessarily inconsistent with their freedom independently to determine their external relations”).

That means that there are only two ways that a tribe’s inherent sovereignty could be restored so as to alter application of the dual sovereignty rule: either Congress could grant the same independence to the tribes that it did to the Philippines, see ante, at 204, or this Court could repudiate its existing doctrine of dependent sovereignty. The first alternative has obviously not been attempted, and I see no reason for us to venture down a path toward the second. To begin with, the theory we followed before today has the virtue of fitting the facts: no one could possibly deny that the tribes are sub*230ordinate to the National Government. Furthermore, while this is not the place to reexamine the concept of dual sovereignty itself, there is certainly no reason to adopt a canon of broad construction calling for maximum application of the doctrine. Finally, and perhaps most importantly, principles of stare decisis are particularly compelling in the law of tribal jurisdiction, an area peculiarly susceptible to confusion. And confusion, I fear, will be the legacy of today’s decision, for our failure to stand by what we have previously said reveals that our conceptualizations of sovereignty and dependent sovereignty are largely rhetorical.2

*231I would therefore stand by our explanations in Oliphant and Duro and hold that Congress cannot reinvest tribal courts with inherent criminal jurisdiction over nonmember Indians. It is not that I fail to appreciate Congress’s express wish that the jurisdiction conveyed by statute be treated as inherent, but Congress cannot control the interpretation of the statute in a way that is at odds with the constitutional consequences of the tribes’ continuing dependent status. What may be given controlling effect, however, is the principal object of the 1990 amendments to the Indian Civil Rights Act of 1968, 25 U. S. C. § 1301 et seq., which was to close “the jurisdictional void” created by Duro by recognizing (and empowering) the tribal court as “the best forum to handle misdemeanor cases over non-member Indians,” H. R. Rep. No. 102-261, p. 6 (1991). I would therefore honor the drafters’ substantive intent by reading the Act as a delegation of federal prosecutorial power that eliminates the jurisdictional gap.3 Finally, I would hold that a tribe’s exercise of this delegated power bars subsequent federal prosecution for the same offense. I respectfully dissent.

1

Bourland was a civil case about the regulation of hunting and fishing by non-Indians. Its applicability in the criminal context is presumably a fortiori.

2

Justice Thomas’s disagreement with me turns ultimately on his readiness to discard prior case law in this field and, indeed, on his rejection in this very case of the concept of dependent sovereignty. He notes, for example, ante, at 220 (opinion concurring in judgment), that the Court in Heath v. Alabama, 474 U. S. 82, 88 (1985), explained that one act that violates the peace and dignity of two sovereigns constitutes two separate offenses for purposes of double jeopardy. Justice Thomas then concludes that whether an act violates a sovereign’s peace and dignity does not depend (when the sovereign is an Indian tribe) on whether the perpetrator is a member of the tribe. Justice Thomas therefore assumes that tribes “retain inherent sovereignty to try anyone who violates their criminal laws.” Ante, at 220. This Court, however, has held exactly to the contrary: a tribe has no inherent jurisdiction to prosecute a nonmember. In rejecting this precedent, Justice Thomas implicitly rejects the concept of dependent sovereignty, upon which our holdings in United States v. Wheeler, 435 U. S. 313 (1978), and Oliphant v. Suquamish tribe, 435 U. S. 191 (1978), rested. Reciting Oliphant’s examination of treaties, statutes, and views of the Executive Branch, Justice Thomas attempts to suggest that these opinions were only momentary expressions of malleable federal policy. But he somehow ignores Oliphant’s own emphasis that its analysis did not rest on historical expressions of federal policy; rather, “even ignoring treaty provisions and congressional policy, Indians do not have criminal jurisdiction over non-Indians absent affirmative delegation of such power by Congress.... Indian tribes are prohibited from exercising both those powers of autonomous states that are expressly terminated by Congress and those powers inconsistent with their status.” Id., at 208 (emphasis in original; citation and internal quotation marks omitted); see also Duro v. Reina, 495 U. S. 676, 686 (1990). There is simply no basis for Justice Thomas’s recharacterization of this clear holding.

3

Justice Thomas suggests that this delegation may violate the separation of powers. Ante, at 215-217. But we are not resolving the question whether Lara could be “prosecuted pursuant to ... delegated power,” 324 F. 3d 635, 640 (CA8 2003), only whether the prosecution was in fact the exercise of an inherent power, see Pet. for Cert. (I), and whether the exercise of a delegated power would implicate the protection against double jeopardy.