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“Our State, by an article appended to the constitution and passed by the convention, accepted the act of Congress, with its conditions and stipulations, which, of course, from the moment of its acceptance became the conditions and stipulations of a contract equally binding upon both parties thereto.
“Such is a brief history of the various enactments which have relation to our claims upon the territory embraced within this State. It is here worthy of remark that the articles of agreement and cession fully recognize the rights of Georgia not only to the jurisdiction over, but to the right of soil in the land, and they convey as well the claim to jurisdiction as the right of soil itself to the United States. Upon this point, to wit, that the right of soil in the ceded territory has ever since the cession existed in the United States, and not in the Indian tribes inhabiting the same, depends the question of our legal claim to the sixteenth section in the Chickasaw country.
"Reservations are grants, as such they have always been construed by legislative bodies and judicial tribunals. A legislative grant is a compact equally absolute and binding as if made by an individual. The reservation or grant of the sixteenth section in the act of the 3d of March, 1803, was an absolute unconditional grant for the uses therein mentioned of the sixteenth section of every township within the ceded territory, with the exception contained in the act, so far as the United States had at that time the power to make such grant. If the rights of soil or fee-simple was in the United States, then the said act entirely divested them of title, and 80 soon as the sixteenth section became designated or located in any township by actual survey the full legal title thereto became fixed in the State, or the trustees appointed for that purpose, and such title relates back and takes effect from and by virtue of said act of the 3d of March, 1803. If this be correct, then no subsequent act of the United States, either by treaty or otherwise, could divest our vested rights, and any grant or sale by them of the ceded territory could only convey the same subject to our lien
upon the sixteenth section, whenever ascertained by actual location
“Had, then, the United States, at the time of granting the sixteenth section, the right of soil or the ultimate fee in the lands embraced in the Chickasaw country? Undoubtedly they had, unless it resided in the Indians. But this doctrine has been well settled. By the law of nations wandering tribes of savages are not considered as having any fee or seisin in the lands over which they roam.
"By the universal consent, at least of all the Southern States, the Indian tribes within their limits are not recognized as having any other title to lands than that of mere occupancy, the right of soil residing in the State or in the United States. This position is also sustained by repeated decisions of the Supreme Federal Court. In the case of Fletcher v. Peck, 6 Cranch, it is decided that the nature of the Indian title is not such as to be repugnant to a seisin in fee on the part of the State within whose bounds the lands may lie. Subsequently, in the case of the Lessee of Johnson v. McIntosh, 8 Wheaton, the same tribunal decides that the right of soil in lands occupied by the Indians resides in the sovereign, that the Indians have the mere right of occupancy, and that their lands are subject to be sold even while in their possession. This is the true and acknowl. edged doctrine, and such as this State has always maintained.
“Your Committee feel authorized, therefore, in laying down the following positions :
“First. The right of soil or ultimate fee in the lands embraced in the treaty with the Chickasaws resided originally in the State of Georgia.
“Second. By the articles of agreement and cession that right of soil became vested in the United States.
" Third. By the act of March 3, 1803, the United States granted the same right of soil in every sixteenth section in trust for the use of schools, which grant was as absolute and binding, and conveyed as much title, as the grant from Georgia to the United States.
“ If these positions be correct, and your Committee do not think they can be contradicted, the conclusion is inevitable that this State has always had a vested legal right to the sixteenth section, which right would be affected by no act on the part of the United States. Your Committee will now proceed to examine how far this right has been respected by the treaty with the Chickasaws referred to their examination.
“ This treaty was made at the city of Washington on the 24th day of May, 1834, between the United States and the Chickasaw Indians. In relation to its provisions, it is sufficient to state that the whole Chickasaw country, containing about six millions of acres of the fairest portion of this State, is disposed of without a single reference to our claims upon the school sections. The right of the Indians to the soil itself is recognized, large portions of the lands are reserved to them in fee-simple, and the remainder, by provisions of the treaty, is to be surveyed and sold by the United States as trustees for the Indians, to whom all the proceeds of such sales are to go, without any reservation to the State of her portion of such proceeds, to wit, five per cent. secured by the compact under which this State became a member of the Union,
“ Your Committee will not stop to indulge in any crimination in relation to the manifest injustice of this treaty. They will simply state what violations of right and of compact they conceive to be involved in its provisions.
“First. This treaty violated the compact with Georgia. By that compact the United States received the right of soil from Georgia, and bound herself to bold the lands so conveyed as a common fund for the use of all the United States. By this treaty she has repudiated the title derived from Georgia, recognized the right of soil to be in the Indians, and, instead of holding said land as a common fund, has surrendered them, together with all the proceeds, to the Indians, who had not the right of soil nor any title, except that of occupancy.
" Secondly. Said treaty violates, or rather attempts to violate, the grant made by this State by the act of 1803 of the sixteenth section of each township for the use of schools.
" Thirdly. Said treaty violates the express compact under which this State became a member of the Union. By that coinpact, as before stated, five per cent. upon the net proceeds of the sales of public lands was reserved or granted to this State. The Chickasaw treaty violates this compact in toto by surrendering a large portion of the lands, and by appropriating, without any regard to the five per cent., the proceeds of the remainder. This reservation of the five per cent. upon the proceeds of the sales of public lands within this State must not be understood as a gratuity ; it is the stipulation of a contract founded upon ample consideration. The act under which this State came into the Union proposes to admit her upon the same terms and upon an equal footing with the original States. Such, however, is not the case. The original States always possessed and exercised, as incident to their sovereignty, the power of taxing all lands within their jurisdiction. The act for the admission of this State, on the other hand, compels her to enter into a contract with the United States, by which contract it is stipulated, on the part of this State, that she surrenders to the United States any claim she may have to the waste and unappropriated lands within her limits; and, further, that she will not tax lands the property of the United States while in the hands of the United States, or for five years after the sale thereof. In the same contract it is stipulated, on the part of the United States, that this State shall be entitled to five per cent. upon the proceeds of sale of said lands.
“Now, these stipulations were manifestly made in consideration of each other. This State would never have so far parted with her sovereign right to tax the property within her jurisdiction except in consideration of the compensation she was to receive in the five per cent. upon the proceeds of the sale of those very lands she had exempted from taxation. Your Committee are decidedly of opinion that by a fair construction of the compact the five per cent. was intended by the parties to be in lieu of taxation, and that consequently both the legal and equitable construction must be that all lands exempted by this compact from taxation were subject to the reservation of the five per cent. upon the proceeds of the sale thereof.
Your Committee further conceive that any donation, grant, or reservation of said lands without provision to compensate this State for the five per cent. to which she would have been entitled upon a sale as a manifest violation of the contract. It is evident that said contract does not contemplate any other disposition of the public lands than by a bona fide sale, coextensive with the exemption from taxation. By the Chickasaw treaty both the letter and the spirit of the contract are violated. In the sales which
actually do take place our five per cent. is not reserved, and the reservations permitted in said treaty are equally destructive of our rights.
“Your Committee wish it to be distinctly understood that they conceive reservations and donations of the public lands as much a breach of contract on the part of the United States as an absolute withholding of the five per cent. upon actual sales. They look upon the stipulation that this State should have five per cent. upon the proceeds of the sale of the public lands as an implied contract to sell said lands, and not to give them away. . This observation will extend equally to the donations and reservations embraced in the Choctaw treaties.
“And now your Committee, having exhibited their views of the rights of this State to school sections and to five per cent., and having shown that these rights are wholly disregarded by the Chickasaw treaty, will proceed to the more important part of their duty, to wit, the consideration of the remedy. In relation to the sixteenth sections, provided your Committee are right in the views they have taken, there can be no difficulty. Your Committee have already stated that they view our claim for the sixteenth sections a vested legal right, which has existed as such ever since the act of 1803,—such a right as it was totally out of the power of the United States to touch or affect by their treaty with the Chickasaws. Your Committee are therefore of opinion that this State has at this time a vested legal title in fee-simple to the sixteenth sections of every township in the territory embraced in the Chickasaw treaty, even though such sixteenth section has been sold by the United States or embraced in an Indian reservation.
“Your Committee would recommend that we assert at once our claim by authorizing and directing the trustees of school lands in each township of the Chickasaw territory to take immediate possession of such sixteenth sections as may be vacant, and to institute suit forth with before the proper tribunals for such as may be held adversely to such trustees.
“In relation to the proper course to pursue in asserting our claim to the five, per cent., your Committee have felt more hesitation ; but after the most mature consideration they have come to the decided opinion that we ought to adopt the course recommended by the governor, to wit, taxation of the Chickasaw lands. There are various reasons why this should be done. In the first place, it is the most dignified and honorable course. We have decided that our rights have been violated; we have two courses to pursue: one is to take a just, legal, and proper remedy, which is within our hands; the other is to petition for relief the very power that violated the right. Your Committee cannot recommend to a free and sovereign State the latter course. Rights are to be demanded and enforced, not petitioned for. Besides this, your Committee are informed, application in relation to this matter has already been made in vain to the Federal government.
" Your Committee will proceed to give their reasons for believing the taxation of the Chickasaw lands to be the most proper, effectual, and peaceable remedy. It is a well-established principle of international law, as well as of private policy and expediency, that where there are mutual stipulations and one party is guilty of a violation of a contract, the proper remedy for the other party is a refusal to perforin the stipulations on his part. No one will doubt the stipulation on the part of this State, not to tax lands the property of the United States, was made in consideration of the stipulation on the part of the United States that the State should receive five per cent. on the sales of said lands. If, then, the United States plenses to violate the contract and part with six millions of acres of the lands embraced in the stipulation, surely it is not improper for this State also to abandon the contract to the same extent. If the contract is abandoned, then the original right of taxation comes in, not as a new remedy, but simply as placing the parties in statu quo. The remedy, then, advised by this Committee is simply to permit the contract to be abandoned, so far as the United States have chosen to abandon it, and to consider the Chickasaw lands as if no contract had ever existed in relation to them. Of course, then they would be subject to taxation like other lands within the jurisdiction of this State.
" There is another consideration in favor of the course adopted by the Committee. The United States, as before stated, have in the Chickasaw treaty in substance repudiated the right of soil in themselves, and have in part recognized it as existing in the Indians. But this State only stipulated not to tax lands the property of the United States. This stipulation does not extend to land the property of the Indians. The United States, then, by this very treaty are estopped from claiming exemption of these lands from taxation as their property.
"Your Committee, in conclusion, recommend to the Legislature forthwith to enact such laws as may be necessary to subject the lands em braced in the Chickasaw treaty to taxation like other lands within the State."
The consideration of the question was finally laid upon the table on the 24th of February, 1836, and there it slept in the tomb of the Capulets.
At this session the great Mississippi statesman, Poindexter, who might well be styled its Solon, went down before the popular storm. Prentiss clung to him to the last, but on the fifth ballot for United States senator Robert J. Walker received forty-four votes, Plummer eighteen, Poindexter twelve, and Wilkins four, and so the man in whose office Prentiss read law before was elected to the exalted position.
There grew out of this election grave charges against a certain State officer,—that of subornation, in bribing the vote of