views of
the Government on the subject, it will be found in the proclamation
issued by Congress in 1783. It contains this language:

The United States in Congress assembled have thought proper to issue
their proclamation, and they do hereby prohibit and forbid all
persons from making settlements on lands inhabited or claimed by
Indians without the limits or jurisdiction of any particular State.

And again:

_Resolved_, That the preceding measures of Congress relative to
Indian affairs shall not be construed to affect the territorial
claims of any of the States or their legislative rights within their
respective limits.

It was not then pretended that the General Government had the power in
their relations with the Indians to control or oppose the internal
polity of the individual States of this Union, and if such was the case
under the Articles of Confederation the only question on the subject
since must arise out of some more enlarged power or authority given to
the General Government by the present Constitution. Does any such exist?

Amongst the enumerated grants of the Constitution that which relates to
this subject is expressed in these words: "Congress shall have power to
regulate commerce with the Indian tribes." In the interpretation of this
power we ought certainly to be guided by what had been the practice of
the Government and the meaning which had been generally attached to the
resolves of the old Congress if the words used to convey it do not
clearly import a different one, as far as it affects the question of
jurisdiction in the individual States. The States ought not to be
divested of any part of their antecedent jurisdiction by implication or
doubtful construction. Tested by this rule it seems to me to be
unquestionable that the jurisdiction of the States is left untouched by
this clause of the Constitution, and that it was designed to give to the
General Government complete control over the trade and intercourse of
those Indians only who were not within the limits of any State.

From a view of the acts referred to and the uniform practice of the
Government it is manifest that until recently it has never been
maintained that the right of jurisdiction by a State over Indians within
its territory was subordinate to the power of the Federal Government.
That doctrine has not been enforced nor even asserted in any of the
States of New England where tribes of Indians have