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power of congress was restrained to Indians, not members of any of the states; and was not to be exercised, so as to violate or infringe the legislative right of any state within its own limits. What descriptions of Indians were to be deemed members of a state was never settled under the confederation; and the question was one of frequent perplexity and contention in the federal councils. And how the trade with Indians, though not members of a state, yet residing within its legislative jurisdiction, was to be regulated by an external authorty, without so far intruding on the internal rights of legislation, was absolutely incomprehensible. In this case, as in some other cases, the articles of confederation inconsiderately endeavoured to accomplish impossibilities; to reconcile a partial sovereignty in the Union, with complete sovereignty in the states; to subvert a mathematical axiom, by taking away a part, and letting the whole remain. The constitution has wisely disembarrassed the power of these two limitations; and has thus given to congress, as the only safe and proper depositary, the exclusive power, which belonged to the crown in the ante-revolutionary times; a power indispensable to the peace of the states, and to the just preservation of the rights and territory of the Indians. In the former illustrations of this subject, it was stated, that the Indians, from the first settlement of the country, were always treated, as sort, as dependent nations. sovereignty were respected. capable of carrying on trade foreign nations, or of ceding their territories to them. But their right of self-government was admitted; and they were allowed a national existence, under the protection of the parent country, which exempted them
distinct, though in some Their territorial rights and
They were deemed inor intercourse with any
from the ordinary operations of the legislative power of the colonies. During the revolution and afterwards they were secured in the like enjoyment of their rights and property, as separate communities. The government of the United States, since the constitution, has always recognised the same attributes of dependent sovereignty, as belonging to them, and claimed the same right of exclusive regulation of trade and intercourse with them, and the same authority to protect and guarantee their territorial possessions, immunities, and jurisdiction.
§ 534. 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.
§ 535. 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 po
litically 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 may properly be deemed to be in a state of pupilage; and its relation to the United States resembles that of a ward to a guardian.
POWER OVER NATURALIZATION AND BANKRUPTCY.
536. THE next clause is, that congress "shall have 'power to establish an uniform rule of naturalization, "and uniform laws on the subject of bankruptcies "throughout the United States."
§ 537. The propriety of confiding the power to establish an uniform rule of naturalization to the national government seems not to have occasioned any doubt or controversy in the convention. For aught that pears on the journals, it was conceded without objection. Under the confederation, the states possessed the sole authority to exercise the power; and the dissimilarity of the system in different states was generally admitted, as a prominent defect, and laid the foundation of many delicate and intricate questions. As the free inhabitants of each state were entitled to all the privileges and immunities of citizens in all the other states, it followed, that a single state possessed the power of forcing upon other states, with the enjoyment of every immunity and privilege, any alien, whom it might choose to incorporate into its own society, however repugnant such admission might be to their polity, convenience, and even prejudices. In effect every state possessed the power of naturalizing aliens in every other state; a power as mischievous in its nature, as it was indiscreet in its actual exercise. In some states, residence for a short time might, and did confer the rights of citizenship. In others, qualifications of greater importance were required. An alien,
therefore, incapacitated for the possession of certain rights by the laws of the latter, might, by a previous residence and naturalization in the former, elude at pleasure all their salutary regulations for self-protection. Thus, the laws of a single state were preposterously rendered paramount to the laws of all the others, even within their own jurisdiction. And it has been remarked with equal truth and justice, that it was owing to mere casualty, that the exercise of this power during the confederation did not involve the Union in the most serious embarrassments. There is great wisdom, therefore, in confiding to the national government the power to establish a uniform rule of naturalization throughout the United States. It is of the deepest interest to the whole Union to know, who are entitled to enjoy the rights of citizens in each state, since they thereby, in effect, become entitled to the rights of citizens in all the states. If aliens might be admitted indiscriminately to enjoy all the rights of citizens at the will of a single state, the Union might itself be endangered by an influx of foreigners, hostile to its institutions, ignorant of its powers, and incapable of a due estimate of its privileges.
§ 538. It follows, from the very nature of the power, that to be useful, it must be exclusive; for a concurrent power in the states would bring back all the evils and embarrassments, which the uniform rule of the constitution was designed to remedy. And accordingly, though there was a momentary hesitation, when the constitution first went into operation, whether the power might not still be exercised by the states, subject only to the control of congress, so far as the legislation of the latter extended, as the supreme law; yet the power is now firmly established to be exclusive in congress.