only question is whether it is
forbidden by some invisible radiation from the general terms of the
Tenth Amendment. We must consider what this country has become in
deciding what that Amendment has reserved."[203] And again: "Here a
national interest of very nearly the first magnitude is involved. It can
be protected only by national action in concert with that of another
power. The subject-matter is only transitorily within the State and has
no permanent habitat therein. But for the treaty and the statute there
soon might be no birds for any powers to deal with. We see nothing in
the Constitution that compels the Government to sit by while a food
supply is cut off and the protectors of our forests and our crops are
destroyed. It is not sufficient to rely upon the States. The reliance is
vain, and were it otherwise, the question is whether the United States
is forbidden to act. We are of opinion that the treaty and statute must
be upheld."[204]

Justice Sutherland's later assertion in the Curtiss-Wright case[205]
that the powers "to declare and wage war, to conclude peace, to make
treaties," etc., belong to "the Federal Government as the necessary
concomitants of nationality" leaves even less room for the notion of a
limited treaty-making power, as indeed appears from his further
statement that "as a member of the family of nations, the right and
power of the United States * * * are equal to the right and power of the
other members of the international family."[206] No doubt there are
specific limitations in the Constitution in favor of private rights
which "go to the roots" of all power. But these do not include the
reserved powers of the States; nor do they appear to limit the National
Government in its choice of matters concerning which it may treat with
other governments.[207]

INDIAN TREATIES

In the early cases of Cherokee Nation _v._ Georgia[208] and Worcester
_v._ Georgia[209] the Court, speaking by Chief Justice Marshall, held,
first, that the Cherokee Nation was not a foreign state within the
meaning of that clause of the Constitution which extends the judicial
power of the United States to controversies "between a State or the
citizens thereof and foreign states, citizens or subjects"; secondly,
that: "The Constitution, by declaring treaties already made, as well as
those to be made, to be the supreme law of the land, had adopted and
sanctioned the previous treaties with the Indian nations, and
conseque