04/02/2020 E-Library - Information At Your Fingertips: Printer Friendly immemorial, with the single exception of that imposed by irresistible power, which excluded them from intercourse with any other European potentate than the first discoverer of the coast of the particular region claimed: and this was a restriction which those European potentates imposed on themselves, as well as on the Indians. The very term "nation," so generally applied to them, means "a people distinct from others." x x x.[167] The Cherokee nation, then, is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter but with the assent of the Cherokees themselves or in conformity with treaties and with the acts of Congress. The whole intercourse between the United States and this nation is, by our Constitution and laws, vested in the government of the United States." [168] The discovery of the American continent gave title to the government of the discoverer as against all other European governments. Designated as the naked fee, [169] this title was to be consummated by possession and was subject to the Indian title of occupancy. The discoverer acknowledged the Indians' legal and just claim to retain possession of the land, the Indians being the original inhabitants of the land. The discoverer nonetheless asserted the exclusive right to acquire the Indians' land- either by purchase, "defensive" conquest, or cession-- and in so doing, extinguish the Indian title. Only the discoverer could extinguish Indian title because it alone asserted ultimate dominion in itself. Thus, while the different nations of Europe respected the rights of the natives as occupants, they all asserted the ultimate dominion and title to be in themselves.[170] As early as the 19th century, it became accepted doctrine that although fee title to the lands occupied by the Indians when the colonists arrived became vested in the sovereign-- first the discovering European nation and later the original 13 States and the United States-- a right of occupancy in the Indian tribes was nevertheless recognized. The Federal Government continued the policy of respecting the Indian right of occupancy, sometimes called Indian title, which it accorded the protection of complete ownership.[171] But this aboriginal Indian interest simply constitutes "permission" from the whites to occupy the land, and means mere possession not specifically recognized as ownership by Congress. [172] It is clear that this right of occupancy based upon aboriginal possession is not a property right.[173] It is vulnerable to affirmative action by the federal government who, as sovereign, possessed exclusive power to extinguish the right of occupancy at will.[174] Thus, aboriginal title is not the same as legal title. Aboriginal title rests on actual, exclusive and continuous use and occupancy for a long time.[175] It entails that land owned by Indian title must be used within the tribe, subject to its laws and customs, and cannot be sold to another sovereign government nor to any citizen.[176] Such title as Indians have to possess and occupy land is in the tribe, and not in the individual Indian; the right of individual Indians to share in the tribal property usually depends upon tribal membership, the property of the tribe generally being held in communal ownership.[177] elibrary.judiciary.gov.ph/thebookshelf/showdocsfriendly/1/36882 37/148