The only direct references to the Indians in the present Constitution are in the provisions that "Indians not taxed" shall not be counted in determining the number of representatives in Congress to which a State is to be entitled,7 and that Congress shall have power "to regulate commerce . . . with the Indian tribes." 8

The powers conferred upon the General Government by the Commerce Clause will be discussed in another chapter. It may here be observed, however, that the federal authority over commerce with the Indians is much broader than that over commerce between the States. As Prentice and Egan observe: "The purpose with which this power [commerce with the Indians] was given to Congress was not merely to prevent burdensome, conflicting or discriminating state legislation, but to prevent fraud and injustice upon the frontier, to protect an uncivilized people from wrongs by unscrupulous whites, and to guard the white population from the danger of savage outbreaks. A grant made with such a purpose must convey a different power from one whose purpose was to insure the freedom of commerce. Congress has, in the case of Indians, prohibited trade in certain articles, it has limited the right to trade to persons licensed under federal laws, and in many ways asserted a greater control than would be possible over other branches of commerce." 9

"Commerce with foreign nations and among several States is that commerce which involves transportation across state lines, and is put within federal control to avoid discriminating, conflicting, and burdensome state legislation. Commerce with the Indian tribes frequently involves no such transportation. It may be carried on wholly within the limits of a single State. ... In this case . . . the power of Congress is not determined by eminent jurist. The reference to Massachusetts has in mind the law of that State enacted in 1869 whereby every Indian in that State was made a citizen of the State.

7 Art. I, Sec. 3.

8 Art. I, Sec. 8, Cl. 3.

9 The Commerce Clause of the Federal Constitution, p. 342.

In United States v. Holliday11 the court held that Congress had the power to forbid the sale of liquor to an Indian in charge of an agent, in a State and outside of an Indian reservation. The opinion declared: "The locality of the traffic [with Indians] can have nothing to do with this power. The right to exercise it with reference to any Indian tribe, or any person who is a member of such tribe, is absolute, without reference to the locality of the traffic, or the locality of the tribe, or of the member of the tribe with whom it is carried on."

And in United States v. 43 Gallons of Whiskey12 was upheld the power of Congress to exclude spirituous liquors not only from existing Indian country but from that which had ceased to be so by reason of its cession to the United States, but was adjacent to the Indian settlements. The same regulation, the court declared, could be provided by the treaty-making power.

It has been held by the Supreme Court that the General Government has an authority over the Indians not springing from these specific grants of power, but from the practical necessity of protecting the Indians and the non-existence of a power to do so in the States. Thus in United States v. Kagama13 the courts refused to derive the power of the United States to enact a criminal code for the Indians from its power to regulate commerce with them, but rested it upon the broader basis that has been mentioned. The Indian tribes, the court declared in that case, "owe no allegiance to the States and receive from them no protection. Because of the local ill feeling the people of the States where they are found are often their deadliest enemies. From their very weakness and helplessness, so largely due to the dealing of the Federal Government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power. This has always been recognized by the Executive and by Congress, and by this court whenever the question has arisen. . . . The power of the General Government over these remnants of. a race once powerful, now weak and diminished in numbers, is necessary to their protection, as well as to the safety of those among whom they dwell. It must exist in that Government, because it has never existed anywhere else, because the theatre of its exercise is within the geographical limits of the United States, because it has never been denied, and because it alone can enforce its laws on all the tribes."

10 Prentice & Egan, Op. cit.. p. 346. 113 Wall. 407: 18 L. ed. 182.

12 03 U. S. 188; 23 L. ed. 846.

13 118 U. S. 375; 6 Sup. Ct. Rep. 1109; 30 L. ed. 228.