tended by these remarks to imply that this clause of the Constitution authorizes Congress to regulate any other commerce, originated and ended within the limits of a single State, than commerce with the Indian tribes.

These views answer the two questions certified up in the case against Haas, and the two first questions in the case against Holliday.

The third question in Holliday's case is, whether, under the circumstances stated in the plea and replication, the Indian named can be considered as under the charge of an Indian agent, within the meaning of the act?

The substance of the facts as set out in those pleadings is, that the Indian to whom the liquor was sold had a piece of land on which he lived, and that he voted in county and town elections in Michigan, as he was authorized to do by the laws of that State; that he was still, however, so far connected with his tribe, that he lived among them, received his annuity under the treaty with the United States, and was represented in that matter by the chiefs or head men of his tribe, who received it for him; and that an agent of the Government attended to this and other matters for that tribe. These are the substantial facts pleaded on both sides in this particular question, and admitted to be true; and without elaborating the matter, we are of opinion that they show the Indian to be still a member of his tribe, and under the charge of an Indian agent.

UNITED STATES v. 43 GALLONS OF WHISKEY (1876) 93 U. S. (3 Otto.) 188, 193; 23 L. Ed. 846.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MINNESOTA

Congress has power under the Commerce Clause to prohibit commerce in liquor with the Indian tribes. A treaty between the United States and a tribe is effective within the limits of a State.

Mr. Justice DAVIS: The Red Lake and Pembina band of Chippewa Indians ceded to the United States, by treaty, concluded Oct. 2, 1863, a portion of land, occupied by them, reserving enough for their own use. The seventh article is in these words: "The laws of the United States now in force, or that may hereafter be enacted, prohibiting the introduction and sale of spirituous liquors in the Indian country, shall be in full force and effect

throughout the country hereby ceded, until otherwise directed by Congress or the President of the United States." The ceded country is now part of an organized county of the State of Minnesota; and the question is whether the incorporation of this article in the treaty was a rightful exercise of power. If it was, then the proceedings to seize and libel the property introduced for sale in contravention of the treaty were proper, and must be sustained.

From the commencement of its existence, the United States has negotiated with the Indians in their tribal conditions as nations, dependent, it is true, but still capable of making treaties This was only following the practice of Great Britain before the Revolution. In Worcester v. Georgia (6 Pet. 515), the Court says, "The words 'treaty' and 'nation' are words of our own language, selected in our diplomatic and legislative proceedings by ourselves, having each a definite and well-understood meaning. We have applied them to Indians as we have applied them to the other nations of the earth. They are applied to all in the same sense."

In consequence of this interpretation, a country which, if left to the Indians, would have remained a wilderness, is now occupied by farms, towns, and cities. The only legitimate way to accomplish this beneficent result was by extinguishing the Indian title; and the subject-matter of this treaty is the cession of a large tract of land in the State of Minnesota and the Territory of Dakota. Indeed, the acquisition of territory has been the moving cause of all Indian treaties, and will continue to be so, until Indian reservations are confined to very narrow limits. It is admitted that these had the same right as other tribes to occupy their lands as long as they pleased, and that this right could only be extinguished by voluntary cession to the Government. If so, why not annex to the cession a condition deemed valuable to them, and beneficial to the United States, as tending to keep the peace on the frontiers?

The chiefs doubtless saw, from the curtailment of their reservation, and the consequent restriction of the limits of the "Indian country," that the ceded lands would be used to store liquors for sale to the young men of the tribe; and they well knew, that, if there was no cession, they were already sufficiently protected by the extent of their reservation.

Under such circumstances it was natural that they should be unwilling to sell, until assured that the commercial regulation respecting the introduction of spirituous liquors should remain in force

in the ceded country, until otherwise directed by Congress or the President.

Besides, the power to make treaties with the Indian tribes is, as we have seen, coextensive with that to make treaties with foreign nations. In regard to the latter, it is, beyond doubt, ample to cover all the usual subjects of diplomacy. One of them relates to the disability of the citizens or subjects of either contracting nation to take, by descent or devise, real property situated in the territory of the other. If a treaty to which the United States is a party removed such disability, and secured to them the right so to take and hold such property, as if they were natives of this country, it might contravene the statutes of a State; but, in that event, the courts would disregard them, and give to the alien the full protection conferred by its provisions. If this result can be obtained, surely the Federal Government may, in the exercise of its acknowledged power to treat with Indians, make the provision in question, coming, as it fairly does, within the clause relating to the regulation of

commerce.

Minnesota, instead of being injured, is benefited. An immense tract of valuable country formerly withheld from her civil jurisdiction is subjected to it, and her wealth and power greatly increased. * * The General Government asks in return for this that the ceded territory shall retain its original status, so far as the introduction within it of spirituous liquors and the sale of them to the Pembina Indians are concerned.

It would seem, apart from the question of power, that the price paid by the State bears no proportion to the substantial and enduring benefits conferred upon her; we are happy to say, that her officers are not engaged in making this defense.

CHAPTER III.

DEFINITION OF THE WORD "REGULATE" USED IN THE COMMERCE CLAUSE.

SECTION 1. TO REGULATE IS TO DETERMINE THE COURSE AND CONDUCT OF COMMERCE AND THE RULES BY WHICH

IT SHALL BE GOVERNED.

GIBBONS v. OGDEN, Supra.

The power to regulate is the power to prescribe the rule by which commerce is to be governed.

Part of opinion. For full opinion, see ante page 91.

Mr. Chief Justice MARSHALL: We are now arrived at the inquiry -What is this power?

It is the power to regulate; that is: to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution. These are expressed in plain terms, and do not affect the questions which arise in this case, or which have been discussed by the bar. If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several states, is vested in Congress as absolutely as it would be in a single government, having in its Constitution the same restrictions on the exercise of the power as are found in the constitution of the United States. The wisdom and the discretion of Congress, their identity with the people, and the influence which their constitutents possess at elections, are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied, to secure them from its abuse. They are the restraints on which the people must often rely solely, in all representative governments.

The power of Congress, then, comprehends navigation, within the limits of every State in the Union; so far as that navigation

may be, in any manner, connected with "commerce with foreign nations, or among the several States, or with the Indian tribes." It may, of consequence, pass the jurisdictional line of New York, and act upon the very waters to which the prohibition now under consideration applies.

WABASH, ST. LOUIS & PACIFIC R. R. CO. v. ILLINOIS

(1886)

118 U. S. 557-572; 30 L. Ed. 244.

ERROR TO THE SUPREME COURT OF THE STATE OF ILLINOIS [Part of opinion; for full opinion see p. .....]

Regulation is to secure continuous transportation from one end of the country to another and the freedom of interstate and foreign commerce from burdens imposed by State action.

The State of Illinois undertook to regulate the transportation and rate upon shipments originating in Illinois for points outside the State in so far as the transportation occured within the State. Part of opinion. See past chap. VII, sec. 1, 4th case.

Mr. Justice MILLER: It cannot be too strongly insisted upon, that the right of continuous transportation from one end of the country to the other is essential in modern times to that freedom of commerce from the restraints which the States might choose to impose upon it, that the commerce clause was intended to secure. This clause, giving to Congress the power to regulate commerce among the States and with foreign nations, as this Court has said before, was among the most important of the subjects which prompted the formation of the Constitution.

And it would be a very feeble and almost useless provision, but poorly adapted to secure the entire freedom of commerce among the States which was deemed essential to a more perfect union by the framers of the Constitution, if, at every stage of the transportation of goods and chattels through the country, the State within whose limits a part of this transportation must be done could impose regulations concerning the price, compensation, or taxation, or any other restrictive regulation interfering with and seriously embarrassing this commerce.