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do not regard them as sound and authoritative expositions of the true sense of the constitution, except perhaps in those very few cases, where there has been a constant and uninterrupted practice from the organization of the government. The judiciary is looked to as the only authentic expounder of the constitution, and until a law of congress has passed that ordeal, its constitutionality is open to question: of which our history furnishes many examples. . . . . There are errors in some of the instances given by our author, which would materially mislead, if not corrected. That in relation to the Indians proceeds upon the assumption that the United States claimed some rights over Indians or the territory occupied by them, inconsistent with the claims of the states. But this is a mistake. As to their lands, the United States never pretended to any right in them, except such as was granted by the cessions of the states. The principle universally acknowledged in the courts of the United States and of the several states, is, that by the treaty with Great Britain in which the independence of the colonies was acknowledged, the states became severally and individually independent, and as such succeeded to the rights of the crown of England to and over the lands within the boundaries of the respective states. The right of the crown in these lands was the absolute ownership, subject only to the rights of occupancy by the Indians so long as they remained a tribe. This right devolved to each state by the treaty which established their independence, and the United States have never questioned it. See 6th Cranch, 87; 8th Wheaton, 502, 884; 17th John's Reports, 231. On the other hand, the right of holding treaties with the Indians has universally been conceded to the United States. The right of a state to the lands occupied by the Indians, within the boundaries of such state, does not in the least conflict with the right of holding treaties on national subjects by the United States with those Indians. With respect to Indians residing in any territory without the boundaries of any state, or on lands ceded to the United States, the case is different; the United States are in such cases the proprietors of the soil, subject to the Indian right of occupancy, and when that right is extinguished the proprietorship becomes absolute. It will be seen, then, that in relation to the Indians and their lands, no question could arise respecting the interpretation of the constitution. The observation that " as soon as an Indian tribe attempted to fix its dwelling upon a given spot, the adjacent states claimed possession of the lands, and the rights of sovereignty over the natives"—is a strange compound of error and of truth. As above remarked, the Indian right of occupancy has ever been recognised by the states, with the exception of the case referred to by the author, in which Georgia claimed the right to possess certain lands occupied by the Cherokees. This was anomalous, and grew out of treaties and cessions, the details of which are too numerous and complicated for the limits of a note. But in no other cases have the states ever claimed the possession of lands occupied by Indians, without having previously extinguished their right by purchase.
As to the rights of sovereignty over the natives, the principle admitted in the United States is that all persons within the territorial limits of a state are and of necessity must be, subject to the jurisdiction of its laws. While the Indian tribes were numerous, distinct, and separate, from the
