§ 1095. The power, then, given to congress to regulate commerce with the Indian tribes, extends equally to tribes living within or without the boundaries of particular states, and within or without the territorial limits of the United States. It is (says a learned commentator) wholly immaterial, whether such tribes continue seated within the boundaries of a state, inhabit part of a territory, or roam at large over lands, to which the United States have no claim. The trade with them is, in all its forms, subject exclusively to the regulation of congress. And in this particular, also, we trace the wisdom of the constitution. The Indians, not distracted by the discordant regulations of different states, are taught to trust one great body, whose justice they respect, and whose power they fear.[1]
§ 1096. It has lately been made a question, whether an Indian tribe, situated within the territorial boundaries of a state, but exercising the powers of government, and national sovereignty, under the guarantee of the general government, is a foreign state in the sense of the constitution, and as such entitled to sue in the courts of the United States. Upon solemn argument, it has been held, that such a tribe is to be deemed politically a state; that is, a distinct political society, capable of self-government; but it is not to be deemed a foreign state, in the sense of the constitution. It is rather a domestic dependent nation. Such a tribe- ↑ Rawle on the Constitution, ch. 9, p. 84. See also 1 Tuck. Black. Comm. App. 254; 1 Kent's Comm. Lect. 50, p. 308 to 318.
view of the ante-revolutionary, as well as post-revolutionary authority exercised in regard to the Indian tribes. See Blunt's Historical Sketch, &c. (New-York, 1825.) Mr. Jefferson's opinion was, that the United States had no more than a right of pre-emption of the Indian lands, not amounting to any dominion, or jurisdiction, or permanent authority whatever; and that the Indians possessed a full, undivided, and independent sovereignty. 4 Jefferson's Corresp. 478.
