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cannot commence and terminate beyond the limits of either; and if the trading intercourse be between two states remote from each other, it must commence in one, terminate in another, and pass through at least a third. Commerce among the states must of necessity, then, be commerce within a state. In the regulation of the trade with the Indian tribes, the action of the law, especially when the Constitution was made, was chiefly within a state; and in this case, as well as in regard to commerce among the states, the power of Congress is coextensive with the subject on which it acts. It cannot, in either case, be stopped at the external boundary of a state, but must enter the limits, and be exercised within the territorial jurisdiction of all the states. The grant of Congress, however, to regulate commerce on the navi. gable waters of the several states, contains no cession of territory, or of public or private property; the states may regulate the use of fisheries within their territorial limits, though upon navigable waters, provided their free use for the purposes of navigation and commerce be not interrupted.
The power of Congress to regulate commerce among the states, extends to the regulation of navigation, and to the coasting trade, and fisheries within, as well as without any state, wherever they are connected with the commercial intercourse with any other state, or with foreign nations. It extends also to the regulation and government of seamen; to conferring privileges upon vessels engaged in the coasting trade; and to the navigation of vessels engaged solely in carrying passengers, as well as to those engaged in traffic, whether propelled by steam or otherwise.
* 4 Wash. Cir. Rep., 371.
The principles laid down in another case, also referred to in my last lecture, where an act of a legislature requiring importers and venders of foreign goods to pay for a license from a state government in order to entitle them to pursue that branch of mercantile business, were declared repugnant to the Constitution, were held to apply equally to a similar interference with importations from one state into another. In that case, although the power of the state to regulate its purely internal commerce, and to establish its own police to control and promote that trade and intercourse, and to guard the public health and safety, was held to be sacred; yet it was by no means admitted that these, or any other acknowledged state powers, could, consistency with the Federal Constitution, be so used as to obstruct or defeat the power of Congress to regulate commerce in any of its branches. But it was again explicitly declared that, whenever the powers remaining in the states are so exercised as to come into conflict with those vested in Congress, the former must yield to what the Constitution has ordained to be the supreme law of the land. Nevertheless, if measures undoubtedly within the powers of the states do not come into actual collision with those of the General Government, the Federal Courts can take no cognizance of them or their effects. *
With respect to commerce with the Indian tribes, we are to adopt the same broad interpretation of the power of Congress. Under the Confederation, this power was restrained to Indians not members of any of the states ; and was not to violate or infringe the legislative right of any state within its own limits. But what description of Indians were to be deemed
* 2 Peters, 250.
members of a state, was a question of perplexity and contention in the Federal councils, and was never settled ; and how the trade with the Indians not members of a state, yet residing within its legislative jurisdiction, could be regulated by Congress without intruding upon the right of internal legislation, seems to have been considered incomprehensible by that compact. The power in question was, therefore, very properly, unfettered by the new Constitution from limitations which rendered the former provision so obscure and contradictory. As it now stands, it is applicable to all the Indian tribes ; and it is immaterial whether they continue within the boundaries of a state, or inhabit a part of one of the territories, or roam at large through regions over which the United States have no jurisdiction; the trade with them is, in all its forms, subject exclusively to the regulation of Congress. By the wisdom and benevolence of this provision, the Indians are no longer distracted by the discordant regulations of different sovereignties, but are taught to trust to one supreme head, whose justice they should ever have as much reason to respect, as cause to fear its power.
The relation of the aborigines to the Government of the United States is marked by peculiar and cardinal distinctions. The Indian territory is admitted to compose a part of the Federal domain ; in all our maps, geographical treatises, histories, and laws, it is so considered : in all our intercourse with foreign nations; in our commercial regulations; in any attempt at intercourse between the Indians and foreign powers, they are considered as within the jurisdictional limits of the United States, subject to many of those restraints which are imposed on our own citi
They acknowledge themselves in their treaties to be under the protection of the Federal Gov.
ernment; they admit that it shall have the sole and exclusive right of regulating the trade with them, and managing all their affairs as it
think the particular instance of the Cherokees, they were allowed by a treaty, which preceded the present Constitution, " to send a deputy of their choice, whenever they saw fit, to Congress ;” and, under the unsettled construction of the Articles of Confederation, treaties were made with some tribes by the State of New-York, by which they ceded all their unsettled lands within that state, taking back a limited grant to themselves, in which they admit their dependance on that state.
As to those tribes which reside within the acknowledged boundaries of the Union, we have seen that they are not deemed foreign nations within the meaning of the Constitution, but are considered as domestic dependant nations ; they occupy a territory to which we assert a title which must take effect when their right of occupancy ceases; and, in the mean time, they are in a state of pupilage to the Federal Government. They and their coụntry are considered by foreign nations, as well as ourselves, as being so completely under the sovereignty and dominion of the United States that any attempt to acquire their lands, or form a political connexion with them, would be considered as a hostile invasion of our territory. They are distinguished in the Constitution by an appropriate name from foreign nations, as well as from the several states of the Union ; and the objects to which the power now under consideration may be directed, are divided into distinct classes corresponding with that distinction. A brief reference to the origin of these discriminations will explain the principles on which they are founded, and enable us to determine with greater accuracy.
the nature and character of the subsisting relations between the United State and the Indian tribes.
When the great maritime powers of Europe visited and discovered different parts of this continent at nearly the same time, the principle adopted for deciding their respective rights was, “ that discovery gave title to the government by whose subjects or by whose authority was made against all other European governments, which title might be consummated by possession.”* The admission of this principle gave to the nation making a discovery, as an inevitable consequence, the sole right of acquiring the soil and of making settlements upon it; and while the principle itself was, as to them, an exclusive one, and shut out the right of competition among those who agreed to it, it could not annul the previously acquired rights of those who had never adopted or acknowledged it. It regulated the right given by discovery among the European claimants, but could not affect the rights of those already in possession, either as original occupants, or as occupants by virtue of a discovery beyond the memory of man.
It gave an exclusive right to purchase, but did not found that right on a denial of the right of the occu
pant 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 hitherto made to enlarge them. So far as they existed merely in theory, or were, in their nature, exelusive only of the claims of
* 8 Wheat., 573.