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 resided, and where a few of them yet remain.  These tribes have been left to the undisturbed control of the States in which they were found, in conformity with the view which has been taken of the opinions prevailing up to 1789 and the clear interpretation of the act of 1802.  In the State of New York, where several tribes have resided, it has been the policy of the Government to avoid entering into quasi treaty engagements with them, barely appointing commissioners occasionally on the part of the United States to facilitate the objects of the State in its negotiations with them.  The Southern States present an exception to this policy.  As early as 1784 the settlements within the limits of North Carolina were advanced farther to the west than the authority of the State to enforce an obedience of its laws.  Others were in a similar condition.  The necessities, therefore, and not the acknowledged principles, of the Government must have suggested the policy of treating with the Indians in that quarter as the only practicable mode of conciliating their good will.  The United States at that period had just emerged from a protracted war for the achievement of their independence.  At the moment of its conclusion many of these tribes, as powerful as they were ferocious in their mode of warfare, remained in arms, desolating our frontier settlements.  Under these circumstances the first treaties, in 1785 and 1790, with the Cherokees, were concluded by the Government of the United States, and were evidently sanctioned as measures of necessity adapted to the character of the Indians and indispensable to the peace and security of the western frontier.  But they can not be understood as changing the political relations of the Indians to the States or to the Federal Government.  To effect this would have required the operation of quite a different principle and the intervention of a tribunal higher than that of the treaty-making power.